European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

CASE OF ZAKHAROV v. RUSSIA

 

(Application no. 676/09)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

11 October 2016

 

 

 

 

 

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

 

 




In the case of Zakharov 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 20 September 2016,

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

PROCEDURE

1.  The case originated in an application (no. 676/09) 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 Mikhail Sergeyevich Zakharov (“the applicant”), on 10 November 2008.

2.  The applicant was represented by Mr T. Sharifov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3.  On 18 March 2014 the complaint concerning the length of pre-trial detention was communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1979 and lived, prior to his arrest, in Krasnogorsk, Moscow Region.

5.  On 5 July 2007 the applicant, a police officer at the material time, was arrested on suspicion of abuse of official powers causing serious damage. On 10 July 2007 he was formally charged with the imputed crime. Subsequently he was additionally charged with embezzlement on a large scale as part of an organised criminal group.

6.  On 6 July 2007 the Zamoskvoretskiy District Court of Moscow remanded the applicant in custody on the ground of the gravity of charges. The court also reasoned that he might put pressure on witnesses, destroy evidence or interfere with investigation.

7.  On 3 September 2007, 11 December 2007, 10 April 2008 and 1 July 2008 the District Court extended the applicant’s pre-trial detention stating that the investigation was still pending, the case comprised 118 volumes and concerned fifteen suspects, the applicant had been suspected of a serious crime, could interact with his accomplices, abscond, destroy evidence and threaten witnesses. The court also took into account the applicant’s state of health, character and family status however it did not provide any detailed arguments in this respect.

8.  On 30 December 2008 and 20 April 2009 the District Court issued collective detention orders in respect of the applicant and other co-accused pending their study of the case-file. The court referred to the gravity of the charges, the defendants’ possibility to abscond, commit crimes and interfere with the investigation.

9.  The applicant’s appeals against the detention orders were rejected.

10.  On 9 June 2010 the Moscow City Court acquitted the applicant of all charges.

THE LAW

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

11.   The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long and had not been based on relevant and sufficient reasons. Article 5 § 3 provides 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.”

12.  The Government submitted that, having been acquitted, the applicant could exercise his “right to rehabilitation” under Article 133 of the Code of Criminal Procedure. The applicant’s acquittal automatically implied that the State had acknowledged a violation of the his rights set out in Article 5 of the Convention. As to the redress, the Government stated that the applicant should have filed a civil claim for compensation with the domestic courts.

13.  The applicant did not comment.

A.  Admissibility

14.  The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).

15.  In recent cases against Russia (see Shalya v. Russia [Committee], no. 27335/13/05, §§ 11-23, 15 March 2013, Shkarupa v. Russia, no. 36461/05, §§ 74-78, 15 January 2015, and Lyubushkin v. Russia, no. 6277/06, §§ 48-53, 22 October 2015) the Court found that in the rehabilitation proceedings, the Russian authorities did not have to examine, still less acknowledge, at least in substance, that the applicant’s detention had been formally defective, or that it had been based on insufficient reasoning, or had exceeded a reasonable time. Furthermore, the award of compensation was subject to the fulfilment of specific conditions not required under Article 5 § 3, specifically the applicant’s acquittal or the discontinuation of the proceedings. The only grounds for awarding the applicant compensation were the termination of the criminal proceedings against him rather than any alleged irregularity in the pre-trial detention. These grounds for compensation did not correspond to the basis of the applicant’s complaint under Article 5 § 3 and the alleged violation could not therefore be redressed in these proceedings (see also, mutatis mutandis, Elğay v. Turkey, no. 18992/03, § 32, 20 January 2009, and Mekiye Demirci v. Turkey, no. 17722/02, § 70, 23 April 2013).

16.  The Court discerns nothing in the materials of the present case that would allow it to conclude that the authorities acknowledged, either expressly or implicitly, that the applicant’s pre-trial detention had been excessive in its duration or that the decisions ordering his continued detention had not been based on relevant and sufficient reasoning.

17.  Accordingly, the Court considers that in the absence of any acknowledgement the applicant still can claim to be a “victim” of a violation of Article 5 § 3 of the Convention.

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

B.  Merits

19.  The Court notes that the period to be taken into consideration lasted from 5 July 2007, the date of the applicant’s arrest, to 9 June 2010, the date of his acquittal. Accordingly, the applicant spent in pre-trial detention two years, eleven months, and five days.

20.  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 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 others, Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012).

21.  In the present case there is no reason to depart from the above conclusion as the domestic courts failed to address the applicant’s personal situation and grounded their decisions on stereotyped formula.

22.  Accordingly, the Court finds that there has been a violation of Article 5 § 3 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  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.”

24.  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 the complaint concerning the excessive duration of pre-trial detention admissible;

 

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

Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                     Helena Jäderblom
Deputy Registrar                                                                       President