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MEDVEDEV v. RUSSIA - 9487/02 [2010] ECHR 1127 (15 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1127.html
Cite as:
[2010] ECHR 1127
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FIRST
SECTION
CASE OF
MEDVEDEV v. RUSSIA
(Application
no. 9487/02)
JUDGMENT
STRASBOURG
15 July 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Medvedev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 24 June 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 9487/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Aleksandr Vyacheslavovich
Medvedev (“the applicant”), on 27 January 2002.
The
applicant was represented by Mr A.Y. Yablokov, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev, former Representative of the Russian
Federation at the European Court of Human Rights.
Under
Articles 3, 5 and 6 of the Convention, the applicant complained of
ill-treatment by the police, lack of medical care in pre-trial
detention, lack of information about the reasons for his arrest,
delay by the court in reviewing the lawfulness of his detention, and
unfairness of the criminal proceedings in his criminal case.
On
4 May 2006 the Court declared the application partly inadmissible and
decided to communicate to the Government the complaints concerning
the alleged ill-treatment of the applicant while in police custody
and the delay in reviewing his application for release. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The alleged ill-treatment
The
applicant was born in 1978 and lives in Moscow.
In
the early morning of 22 February 2001 the applicant entered the
grounds of a furniture depot, where he was spotted by security
guards. The guards called the police, and, soon after, the applicant
was arrested. He claimed that he had been beaten by the police
officers and the guards when he was being arrested. After searching
the premises, the police discovered a handgun, allegedly belonging to
the applicant. The applicant was taken to Vidnovo police station
(Moscow Region) for questioning.
The applicant alleges that in the course of the
questioning police officers M. and E. tortured him: they put a gas
mask over his head and blocked air access, so that he started
suffocating. They also hit him with a rubber stick. The applicant
agreed to confess to theft and, moreover, to give them money so that
they would stop. At about 4 a.m. the applicant went to his flat,
accompanied by two police officers, where, at gunpoint, he handed
over 5,000 US dollars. Then the police officers returned to the
police station with him and he was locked in a cell. However, the
policemen promised him that if he confessed to the alleged crimes the
town prosecutor would soon release him on bail. The applicant wrote a
statement in which he confessed to attempted theft and illegal
possession of a handgun.
The
Government produced an extract from the police station record of
arrests. Entry no. 296 concerned the applicant; it read as follows:
“22.02.2001/[the applicant] made no complaints [about his
condition]/no visible injuries [on him]”.
In
the afternoon the police instituted criminal proceedings against the
applicant on suspicion of theft and illegal possession of a firearm
(criminal case no. 39697). In connection with these proceedings the
town prosecutor authorised the applicant’s pre-trial detention.
On
23 February 2001 the applicant met with his lawyer. Through him the
applicant transmitted to the town prosecutor a written statement in
which he described the circumstances of his arrest, the ill-treatment
and extortion of money. According to the applicant, his complaint of
ill treatment was handed to the investigator in charge of his
case on that date; however, the case file does not contain any proof
of that.
On
5 March 2001 the applicant lodged a formal complaint with the town
prosecutor about the ill-treatment and extortion, seeking the
criminal prosecution of the police officers involved. He also
requested to be released on the grounds that he might easily be
subjected to further pressure and physical violence by those police
officers while in the pre-trial detention facility.
The
applicant claimed that, as a result, officers M. and E. had been
dismissed from service. The Government confirmed that M. had been
dismissed for underperformance and E. had been transferred to another
unit. However, neither of these disciplinary measures was related to
the events at issue.
On
21 May 2001, after a preliminary inquiry into the applicant’s
allegations of ill-treatment, the town prosecutor decided not to
proceed with the investigation. The materials of the inquiry were
added to the file in the applicant’s case.
On
25 May 2001 the Vidnovo town prosecutor issued a bill of indictment
in the applicant’s case and transmitted it with the case-file
to the Vidnovo Town Court for examination on the merits.
In
July 2001 the applicant’s lawyer lodged similar complaints of
ill treatment with the Regional Prosecutor and the Prosecutor
General, seeking further investigation into the alleged ill-treatment
and extortion. It is unclear whether those complaints were ever
examined on the merits. The applicant’s complaint in similar
terms lodged with the Internal Security Department of the Ministry of
the Interior was forwarded to the Moscow Regional Court “for
further inquiries”. On 5 September 2001 this complaint was
forwarded to the Vidnovo Town Court, where it was “added to the
case file”.
After the applicant’s conviction on 10 September
2001, his lawyer lodged a new complaint with the prosecutor of the
Vidnovo district, seeking the institution of criminal proceedings
against officers M. and E. As can be seen from the applicant’s
submissions, he received no reply to this complaint.
On
19 March 2002 the applicant lodged a civil-law complaint about the
inaction of the prosecutor of the Vidnovo district before the Vidnovo
Town Court, under the provisions of the Judicial Appeals Act (see the
“Relevant domestic law” part below).
On
29 March 2002 the court returned his complaint unexamined. The
Town Court indicated that the complaint had been lodged under the
provisions of the Code of Civil Procedure, whereas it should have
been lodged in accordance with the provisions of the Code of Criminal
Procedure. The Town Court referred to the position of the Plenary
Session of the Supreme Court of the Russian Federation, expressed in
its Ruling of 21 December 1993 in which the Supreme Court held that
decisions of the prosecuting authorities should be challenged by way
of a criminal-law complaint.
The
applicant appealed, claiming that the Town Court’s refusal to
examine his complaint was unlawful and breached his constitutional
right of access to court. However, on 22 May 2002 the Moscow Regional
Court upheld the decision of the Vidnovo Town Court of 29 March 2002.
The Court of Appeal confirmed that the decision of the prosecutor not
to proceed with the case should have been challenged under the
provisions of the Code of Criminal Procedure.
B. Applications for release
During
the pre-trial investigation of criminal case no. 39697 and the trial
of his case before the Vidnovo Town Court the applicant remained in
the remand prison. On several occasions he requested the investigator
in charge of his case and the town prosecutor to release him. In
particular, on 22 March 2001 he lodged an application with the
Vidnovo town prosecutor. However, it was refused on the ground that
the applicant might abscond or interfere with the course of justice.
On
17 April 2001
the applicant lodged another application for release with the court.
In his application he described the alleged ill treatment and
extortion of money by the police officers. He also referred to
various defects in the investigation proceedings and to his poor
health and personal circumstances.
On
11 May 2001 the Kashira Town Court of the Moscow Region
rejected his application, putting forward the following arguments:
“[The applicant] has committed several intentional
crimes, including serious ones. This fact is not disputed either by
[the applicant] or by his defence counsel. There is no information
that the state of his health is incompatible with detention pending
investigation. Given this fact and taking into account the fact that
Mr Medvedev committed the impugned crime in another district, the
Court holds that the investigative authorities have rightly applied
detention pending investigation as a preventive measure.”
The
applicant was informed in that ruling that he had seven days to lodge
an appeal with the Moscow Regional Court.
The
applicant’s lawyer appealed. The applicant indicated that his
appeal had been lodged on 14 May 2001; the Government did not dispute
that assertion. On 13 June 2001 the appeal was dismissed by the
Moscow Regional Court. It appears that neither the applicant nor his
lawyer was present at the appeal court hearing. The ruling of the
appeal court was very short and dealt with the applicant’s
arguments summarily.
The
applicant indicated that he had received a copy of the appeal court’s
decision in February 2002.
The Government did not dispute that; they claimed, however, that the
case file concerning the application for release before the Kashira
Town Court had been destroyed after the expiry of the time-limits
established by domestic legislation for the storage of documents in
the court’s archives. The applicant indicated that under the
applicable rules on document management in the Russian courts the
case file concerning his application for release should have been
kept in the Moscow Regional Court until 2007, so these documents
should have been in the possession of the authorities.
C. Trial of the applicant’s case
On
22 May 2001 the prosecution forwarded the applicant’s case,
together with the bill of indictment, to the Vidnovo Town Court of
the Moscow Region. In the course of the trial the applicant raised
the issue of ill-treatment and extortion of money by the police
officers before the court as an argument in support of his innocence.
On
10 September 2001 the Vidnovo Town Court delivered its judgment.
As to the alleged ill-treatment, the court rejected this argument,
referring to the inquiry conducted by the Vidnovo town prosecutor at
the applicant’s request. The court further noted that the
security guards at the furniture depot, who had been present at the
time of the applicant’s arrest, had testified that the
applicant had confessed to the alleged theft immediately. So there
had been no need to put further pressure on him in order to extort a
confession.
The
court found the applicant guilty of attempted theft but acquitted him
of illegal possession of firearms. He was sentenced to eight months’
imprisonment.
The
judgment of 10 September 2001 was subject to appeal to the Moscow
Regional Court. However, the applicant did not appeal, allegedly out
of fear of reprisals by the police officers implicated in the
ill-treatment. Therefore, the conviction became final on 17 September
2001. A supervisory-review appeal by the applicant was rejected by
the Moscow Regional Court on 13 December 2001.
On
24 October 2001 the applicant was released from prison.
II. RELEVANT DOMESTIC LAW
The RSFSR Code of Criminal Procedure (in force until 1
July 2002, “the old CCrP”) established that a criminal
investigation could be initiated by an investigator following a
complaint by an individual, or on the investigating authorities’
own initiative where there was a reason to believe that a crime had
been committed (Articles 108 and 125). A prosecutor was responsible
for the overall supervision of the investigation (Articles 210 and
211). He could order specific investigative actions, transfer the
case from one investigator to another or order an additional
investigation. If there were no grounds to initiate a criminal
investigation, the prosecutor or investigator issued a reasoned
decision to that effect which had to be notified to the interested
party. The decision was amenable to appeal to a higher-ranking
prosecutor or to a court of general jurisdiction (Article 113 of the
old CCrP).
Federal Law N 4866-1 on Judicial Review of Acts and
Decisions Infringing Individual Rights and Freedoms dated 27 April
1993 (hereinafter “the Judicial Review Act”), provided
for a judicial avenue for claims against public authorities. It
stated that any act, decision or omission by a state body or official
could be challenged before a court of general jurisdiction if it
encroached on an individual’s rights or freedoms. Such
complaints had to be introduced and examined under the rules of the
Code of Civil Procedure. Section 3 of the Act provided that this did
not apply to situations for which the law established another legal
avenue of judicial review. The Ruling of the Plenary Session of the
Supreme Court of the Russian Federation of 21 December 1993 (no.
10) specified that a civil-law complaint, provided for by the
Judicial Review Act, was not an appropriate legal remedy against
decisions of the prosecution authorities taken within the criminal
proceedings. Such decisions were to be challenged under the
provisions of the Code of Criminal Procedure.
On
29 April 1998 the Constitutional Court of the Russian Federation
invalidated Article 113 § 4 of the Code because it did not allow
for judicial review of a prosecutor’s or investigator’s
refusal to institute criminal proceedings. The Constitutional Court
ruled that Parliament should amend the legislation on criminal
procedure by inserting a possibility of review. It also held that
until such amendments were enacted, the national authorities,
including courts, should directly apply Article 46 of the
Constitution requiring a judicial review of administrative acts. The
ruling was published in May 1998.
Under
the old CCrP a decision to detain someone pending investigation or
trial could be taken by a prosecutor or a court (Articles 11, 89 and
96). If the detention order was issued by a prosecutor, the
detainee or his counsel could challenge the detention order before a
court. The judge was required to review an order for detention or its
extension no later than three days after receipt of the relevant
papers. The review had to be conducted in camera in the presence of a
prosecutor and the detainee’s counsel (Article 220-1). An
appeal against a decision of a first-instance court (including an
order authorising, confirming or extending pre-trial detention) lay
to a higher court. It had to be lodged within ten days and examined
within the same time-limit as an appeal against a judgment on the
merits (Article 331 of the CCrP).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant claimed that after his arrest police officers had
ill treated him in order to make him confess to the alleged
crimes and pay them money. His complaints to the prosecutor and the
courts in that connection had been left without proper examination.
Article 3 of the Convention, referred to by the applicant on that
account, reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government put forward two objections. Firstly, they claimed that the
applicant had failed to exhaust domestic remedies. He had submitted
his appeal against the alleged inaction of the Vidnovo town
prosecutor as a civil-law claim instead of a criminal-law complaint
(see the ruling of the Vidnovo Town Court of the Moscow Region of 29
March 2002). Secondly, the Government claimed that the applicant had
not been ill-treated and that his allegations in that respect were
completely unsubstantiated. They stated that the applicant had not
sought medical aid during his detention at the police station.
The
applicant submitted that a civil-law complaint was a valid attempt to
avail himself of a remedy in the circumstances and that his complaint
should have been examined by the Vidnoye Town Court on the merits. He
further insisted that his account of the events of 22-23 February
2001 was accurate. In support he referred to the written submissions
of his relatives and neighbours.
The Court will examine the Government’s objection on
non exhaustion first. The Court observes that the applicant’s
allegations of ill-treatment were considered by the town prosecutor,
who did not find a prima facie case of ill-treatment, and by
decision of 21 May 2001 decided not to institute criminal
proceedings. Pursuant to Article 113 of the old Code of Criminal
Procedure, which was in force at the material time, that decision was
amenable to appeal to a higher prosecutor or a court of general
jurisdiction.
As
regards an appeal to a higher prosecutor, the Court recalls its
well-established case-law according to which in the Russian legal
context a hierarchical appeal to a higher prosecutor is not an
effective remedy for complaints about beatings by the police (see
Belevitskiy v. Russia, no. 72967/01, § 60, 1 March
2007; see Slyusarev v. Russia (dec.), no. 60333/00,
9 November 2006). On the other hand, challenging before a
court of general jurisdiction a prosecutor’s decision not to
investigate complaints of ill-treatment, as provided by Article 113
of the old CCrP, was regarded by the Court as an effective remedy to
be exhausted in order to comply with the requirements of Article 35
of the Convention (see Belevitskiy, cited above, § 61).
In the present case the applicant did not make use of the
criminal-law complaint provided for by Article 113 of the CCrP.
Instead, he preferred to raise the ill-treatment issue before the
trial court which had determined the criminal charge against him and
to bring a civil-law complaint under the Judicial Review Act (see
“Relevant Domestic Law”, above). It remains to be seen
whether he was thereby dispensed from pursuing an ordinary judicial
appeal against the prosecutor’s decision not to investigate the
ill-treatment complaints.
As
to the first legal avenue, even assuming that the trial court was
capable of addressing the issues raised by the applicant under
Article 3 of the Convention (see Akulinin and Babich v. Russia,
no. 5742/02, §§ 25 et seq,, 2 October 2008), the Court
notes that the applicant failed to lodge an appeal against the
judgment of 10 September 2001 (see in this respect the partial
inadmissibility decision of 4 May 2006 in the present case).
As
to the civil-law complaint lodged by the applicant, the Court
observes that on 29 March 2002 the Vidnovo Town Court indicated
to the applicant that it was not an appropriate remedy. The position
of the Vidnovo Town Court was based on the Judicial Review Act of 27
April 1993 and the Ruling of the Supreme Court of 21 December 1993
which provided that decisions of a prosecutor should be challenged by
way of a criminal-law complaint. The Town Court advised the applicant
of the proper legal avenue. The Court notes that the applicant was
not at that moment of time detained and was legally represented. In
such circumstances it is unclear why he preferred not to lodge a
criminal-law complaint under Article 113 of the old CCrP, but to
insist on examination of his civil-law complaint.
In
sum, having regard to the fact that the applicant neither brought a
criminal-law complaint under Article 113 of the old CCrP, nor
challenged the findings of the trial court in his case before the
Court of Appeal, the Court concludes that the applicant did not use
the appropriate remedies and the Government’s objection should
therefore be upheld.
It
follows that the complaint under Article 3 about the alleged
ill treatment of the applicant by the police officers must be
rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
Under
Article 5 § 4 the applicant complained that it had taken the
Kashira Town Court and the Moscow Regional Court too long to hear his
appeal against the detention order. Article 5 § 4, referred to
by the applicant, reads as follows:
“4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful. ...”
A. The parties’ submissions
The
Government put forward two objections. Firstly, they claimed that the
complaint about the length of the bail proceedings should be
dismissed for non-exhaustion. In their opinion, the applicant should
have appealed against the judgment on the merits of the case against
him (judgment of the Vidnovo Town Court of 10 September 2001).
Secondly, they claimed that the length of the proceedings in which
the application for release had been examined was not excessive.
The
applicant maintained his original complaints. He claimed that he had
lodged his application for release on 22 March 2001 – first
before the Vidnovo town prosecutor and then before the Kashira Town
Court of Moscow, and then the Moscow Regional Court. His applications
to the court were examined with a substantial delay. He maintained
that he had not received a copy of the ruling of the Moscow Regional
Court of 13 June 2001 until February 2002.
B. The Court’s assessment
1. Admissibility
As
for the Government’s non-exhaustion plea, the Court does not
agree with the Government that the judgment of 10 September 2001
on the merits of the charges against the applicant should be regarded
as the “final decision” in the context of the bail
proceedings (the examination of his application for release). The
purpose of that judgment was to determine the applicant’s
guilt, not to review the lawfulness of his detention pending trial or
the speediness of the examination of the applications for release.
Therefore, the fact that the applicant did not appeal against the
judgment on the merits is irrelevant and the Government’s
objection should therefore be dismissed.
The
Court notes that the complaint about the length of the examination of
the application for release is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
The
Court notes that the applicant’s contention that the first
application for release was made on 22 March 2001 is not supported by
any documentary evidence. On that date the defence lawyer made an
application to the Vidnovo town prosecutor seeking the applicant’s
release. The Court observes that Article 5 § 4 deals with
judicial proceedings; it does not guarantee access to non-judicial
forms of review of the lawfulness of detention. A prior complaint to
the prosecutor under Russian law was not a pre-requisite for the
judicial review of the lawfulness of the detention: those remedies
could have been pursued in parallel. In such a situation
Article 5 § 4 starts to apply from the time when
the applicant has recourse to judicial remedies – in the
present case, that starting point was 17 April 2001, when the
applicant lodged his application for release with the Kashira Town
Court.
The
application for release was finally rejected by the Moscow Regional
Court on 13 June 2001. Therefore, it took the domestic authorities
fifty-four days to examine the application for release. Furthermore,
the Court takes into account the fact that the applicant was not
informed about the decision taken on his application until February
2002 (see, mutatis mutandis, Zaytsev and Others v. Russia,
no. 42046/06, § 38, 25 June 2009, with further references).
The
Court reiterates that Article 5 § 4 provides that “the
lawfulness of the detention shall be decided speedily”
(emphasis added). There are two aspects to this “speediness”
requirement: firstly, an opportunity for legal review must be
provided soon after the person is taken into detention and, if
necessary, at reasonable intervals thereafter (see Herczegfalvy v.
Austria, September 1992, § 75, Series A no. 244). Secondly,
the review proceedings must be conducted with due expedition (see
Lebedev v. Russia, no. 4493/04, § 78, 25 October 2007).
The applicant’s complaint in the present case concerns this
second aspect of the “speediness” requirement.
The question whether a person’s right to a “speedy
review” of his applications for release has been respected will
be determined in the light of the circumstances of each case; in
complex cases the examination of an application for release may take
more time than in simple ones. In Baranowski v. Poland (no.
28358/95, ECHR 2000-III), it took the domestic courts five months to
examine an application for release. In that case the Government
showed that the domestic court had commenced the examination of the
first application for release as early as the day after it had been
submitted and that, subsequently, it had on five occasions adjourned
the examination of the relevant applications because evidence had to
be taken from three experts. However, despite these arguments, the
Court found a violation of Article 5 § 4. In the Samy v. the
Netherlands case (no. 36499/97, decision of 4 December
2001) concerning the detention of aliens for the purposes of
expulsion, the Court found that a period of twenty-five days was
compatible with Article 5 § 4. By contrast, in the Rehbock v.
Slovenia case (no. 29462/95, § 85, ECHR 2000-XII), the
Court found that the application for release had been examined
twenty-three days after it had been introduced before the
first-instance court, and that that was not a “speedy”
examination as required by Article 5 § 4. A delay of seventeen
days has also been declared incompatible with this provision (see
Kadem v. Malta, no. 55263/00, § 43, 9 January
2003).
Turning
to the present case, the Court notes that it took the first instance
court twenty-four days to examine the application for release.
This delay cannot be explained by the complexity of the case: the
court’s ruling on the application for release was very short
and did not address most of the arguments raised by the defence. The
Government did not refer to any factors which might account for the
delay. Furthermore, it took the Moscow Regional Court another thirty
days to examine the appeal (if calculated from the date when the
appeal was lodged). For want of any explanation from the Government,
this period by itself raises an issue under Article 5 § 4 of the
Convention (see Lebedev, cited above, §§ 97 and
102). Finally, the Court notes that it took the domestic authorities
over seven and a half months to notify the applicant of the decision
taken.
The
Court concludes, having regard to the overall duration of the
proceedings in the present case, that the review of the application
for release was unduly delayed. Accordingly, there has been a
violation of Article 5 § 4 on that account.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
Under the head of pecuniary damage the applicant
claimed 5,000 US dollars - the amount allegedly taken from him by
police officers M. and E. after his arrest in 2001. He further
claimed 40,000 euros (EUR) in respect of non-pecuniary damage caused
by the alleged ill-treatment, unjust criminal prosecution and
unlawful detention.
The
Government considered those claims irrelevant to the Court’s
findings on admissibility and, in any event, unsubstantiated and
excessive.
The
Court notes that it found most of the applicant’s allegations
unfounded or inadmissible on formal grounds. It found a violation of
the applicant’s Convention rights solely under the head of
excessive length of bail proceedings (Article 5 § 4 of the
Convention). In the light of the above, the amounts claimed by the
applicant are irrelevant to the violation found by the Court and in
any event excessive. Ruling on an equitable basis, and in the light
of all the material in its possession, the Court awards the applicant
EUR 600 (six hundred euros) under the head of non-pecuniary
damage plus any tax that may be chargeable to the applicant on that
amount.
B. Costs and expenses
The
applicant claimed EUR 4,700 for legal costs incurred in the
Strasbourg proceedings and 23,386 Russian Roubles (RUR) for postal
expenses and translation costs. He submitted documents supporting
those claims.
The
Government considered that the claims were excessive and
unsubstantiated.
The
Court reiterates that, according to its established case-law, an
award can be made in respect of costs and expenses only in so far as
they have been actually and necessarily incurred by the applicant and
are reasonable as to quantum (see, among other authorities, Nikolova
v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II, and
Smith and Grady v. the United Kingdom (just satisfaction),
nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX). Furthermore,
legal costs are only recoverable in so far as they relate to the
violation found (see, for example, Beyeler v. Italy (just
satisfaction) [GC], no. 33202/96, § 27, 28 May 2002,
and Sahin v. Germany [GC], no. 30943/96, §
105, ECHR 2003-VIII).
In
the light of its findings on the admissibility and merits of the
present application, the documents submitted by the applicant in
support of his claims, and other relevant information and material,
the Court considers it appropriate to award the applicant EUR 600
(six hundred euros) in respect of costs and expenses, plus any tax
that may be chargeable to the applicant on that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 5 § 4
of the Convention concerning the speediness of the judicial review of
the applicant’s application for release admissible, and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 5 § 4 of the Convention on account of the delayed
judicial review of the applicant’s application for release;
Holds:
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 600 (six hundred euros) in
respect of non pecuniary damage, and EUR 600 (six hundred euros)
in respect of costs and expenses, to be converted into Russian
roubles at the rate applicable on the date of settlement, plus any
tax that may be chargeable to the applicant on those amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
