European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

CASE OF NAZAROV v. RUSSIA

 

(Application no. 17614/08)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

13 December 2016

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Nazarov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Helena Jäderblom, President,
          Dmitry Dedov,
          Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 22 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 17614/08) 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, Mr Ivan Nikolayevich Nazarov (“the applicant”), on 18 February 2008.

2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights

3.  On 5 November 2012 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1976 and, prior to his arrest, lived in Oblivskaya, Rostov Region.

5.  On 22 October 2007 the applicant, a police officer at the time, was arrested on suspicion of drug dealing.

6.  On 24 October 2007 the Leninskiy District Court of Rostov-on-Don authorised the applicant’s remand in custody. He remained in custody pending investigation and trial. Referring to the seriousness of the charges and the applicant being a police officer, the courts extended his pre-trial detention on the grounds that he might abscond, or interfere with the administration of justice, or put pressure on witnesses and other defendants.

7.  The applicant lodged appeals against the detention orders. On 4 January and 22 February 2008 the Regional Court upheld the decisions of 29 December 2007 and 6 February 2008 in the applicant’s absence. The applicant and his lawyer were informed about the hearings but the applicant was not granted leave to attend. The applicant’s lawyer attended the hearing on 22 February 2008. The prosecutor was present and made submissions to the court.

8.  On 17 December 2008 the District Court found the applicant guilty of several counts of illegal drug dealing and sentenced him to fourteen years’ imprisonment.

9.  On 10 June 2009 the Regional Court quashed the judgment of 17 December 2008 on appeal and remitted the matter to the trial court for fresh consideration. The court ordered that the applicant remain in custody.

10.  On 15 July 2009 the District Court scheduled a preliminary hearing of the case and ordered that the applicant remain in detention. On 18 November 2009, 29 January and 29 April 2010 the District Court adjourned the hearing of the case. It further extended the applicant’s detention on the ground that he was charged with grievous criminal offences and might abscond.

11.  On 6 May 2011 the applicant was found guilty.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

12.  The applicant complained that the duration of his pre-trial detention had been excessive and therefore in breach of Article 5 § 3 of the Convention, which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

13.  The Government stated that the courts had given relevant and sufficient reasons for the applicant’s pre-trial detention.

14.  The applicant maintained his complaint.

A.  Admissibility

15.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

16.  The Court notes that the applicant’s pre-trial detention consisted of two periods: (1) from 22 October 2007 to 17 December 2008, and (2) from 10 June 2009 to 6 May 2011. It thus lasted three years and twenty-one days (see Solmaz v. Turkey, no. 27561/02, §§ 34-37, 16 January 2007).

17.  The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts extended an applicant’s detention whilst relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many other examples, Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012; Romanova v. Russia, no. 23215/02, 11 October 2011; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Makarenko v. Russia, no. 5962/03, 22 December 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Belov v. Russia, no. 22053/02, 3 July 2008; and Shukhardin v. Russia, no. 65734/01, 28 June 2007).

18.  Turning to the circumstances of the present case, the Court notes that there is no reason to arrive at a different finding. The applicant spent three years and twenty-one days in pre-trial detention as a result of detention orders with stereotyped reasoning or no reasoning at all. These reasons, although “relevant”, cannot be regarded as “sufficient”. In these circumstances, it is not necessary to examine whether the proceedings were conducted with “special diligence”.

19.  There has accordingly been a violation of Article 5 § 3 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

20.  The applicant complained that neither he nor his lawyer had attended the detention appeal hearings on 4 January and 22 February 2008 whereas the prosecutor had been present and had made submissions to the court. He relied on Article 5 § 4 of the Convention which provides:

“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.”

21.  The Government submitted that the applicant’s lawyer had attended the hearing on 22 February 2008 and the equality of arms principle had thus been respected. They agreed that on 4 January 2008 the applicant’s right under Article 5 § 4 of the Convention had been violated.

22.  The applicant maintained his complaint.

A.  Admissibility

23.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

24.  The Court will examine the merits of the applicant’s complaint under Article 5 § 4 of the Convention in the light of the applicable general principles set out in, among others, the case of Idalov (see Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012, with further references).

1.  Appeal hearing on 4 January 2008

25.  The Court observes that the applicant and his lawyer were informed about the hearing of 4 January 2008 but the applicant was not granted leave to attend. Neither the applicant nor his lawyer attended the hearing in question. In this connection, the Court notes that the Government have acknowledged that the authorities’ failure to ensure the applicant’s participation in the appeal hearing on 4 January 2008 amounted to a violation of Article 5 § 4 of the Convention.

26.  Having regard to its established case-law on the issue and the circumstances of the present case, the Court does not see any reason to hold otherwise. The fact that the applicant was unable to participate in the appeal proceedings on 4 January 2008 amounted to a violation of Article 5 § 4 of the Convention.

2.  Appeal hearing on 22 February 2008

27.  The Court observes that the appeal hearing of 22 February 2008 which the applicant did not attend was held for the purpose of reviewing the extension of his pre-trial detention. That issue had already been discussed, in the applicant’s presence, by the court at the first level of jurisdiction on 6 February 2008.

28.  In the evidential material before it, the Court discerns nothing to show that the applicant’s circumstances had materially changed since 6 February 2008. Nor does it appear from the content of the appeal decision that the court discussed any new issues or changed the basis for the applicant’s detention (see Bulin v. Russia [Committee], no. 8681/06, § 35, 29 March 2016).

29.  Accordingly, against this background, the Court is satisfied that the applicant’s personal attendance was not required at the appeal hearing and that counsel’s presence was sufficient to ensure that the proceedings were adversarial and the principle of equality of arms was respected (see, by contrast, Graužinis v. Lithuania, no. 37975/97, § 34, 10 October 2000, and Mamedova v. Russia, no. 7064/05, § 91, 1 June 2006).

30.  Therefore there has been no violation of Article 5 § 4 of the Convention in that respect.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

31.  The applicant complained about conditions of his detention, the review of his pre-trial detention, the unfairness of the criminal proceedings against him, criminal proceedings against third parties, and violation of his right to family life. He referred to Articles 3, 5, 6, 8 and 13 of the Convention.

32.  However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  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.”

34.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares complaints under Article 5 §§ 3 and 4 of the Convention concerning the excessive duration and review of pre-trial detention admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

 

3.  Holds that there has been a violation of Article 5 § 4 of the Convention as regards the detention hearing on 4 January 2008;

 

4.  Holds that there has been no violation of Article 5 § 4 of the Convention the detention hearing on 22 February 2008.

Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                     Helena Jäderblom
Deputy Registrar                                                                       President