European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

 

CASE OF BURYKIN v. RUSSIA

 

(Application no. 57215/09)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

11 October 2016

 

 

 

 

 

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

 




In the case of Burykin v. Russia,

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

          Helen Keller, President,
          Pere Pastor Vilanova,
          Alena Poláčková, 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. 57215/09) 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 Valeriy Vasilyevich Burykin (“the applicant”), on 30 September 2009.

2.  The applicant was represented by Ms M. Belinskaya, a lawyer practising in St Petersburg. 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 27 May 2015 the complaints concerning the length and review of pre-trial detention were 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 1953 and lived, prior to his arrest in St Petersburg.

5.  On 20 December 2005 the applicant was put on the wanted list on suspicion of a murder and gangsterism.

6.  On 17 July 2007 the Vyborskiy District Court of St Petersburg remanded the applicant in custody in absentia.

7.  On 20 October 2007 the applicant was arrested in Hungary.

8.  On 13 September 2008 he was extradited to Russia and placed in detention.

9.  On 28 April 2009 the St Petersburg City Court extended the applicant’s pre-trial detention referring to the seriousness of the charges and the applicant’s attempt to abscond. The applicant remained in detention pending investigation and trial. The court concisely reiterated in its detention orders the above reasons and stated that the applicant might interfere with investigation, commit crimes, threaten witnesses and that he could not be released on bail.

10.  The applicant’s appeals against the detention orders were rejected on the following dates:

 

Date of the detention order	Date of the introduction of the appeal	Date of the appeal hearing
28 April 2009	4 May 2009	2 July 2009
4 May 2009	8 May 2009	2 July 2009
19 August 2009	31 August 2009	22 October 2009
14 October 2009	16 October 2009	21 December 2009
14 January 2010	18 January 2010	16 February 2010
15 February 2010	18 February 2010	26 April 2010

 

11.  On 29 April 2010 the Saint-Petersburg City Court convicted him of murder and gangsterism and sentenced him to 16 years’ imprisonment. On 7 October 2010 the Supreme Court of Russia upheld this decision on appeal.

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 contested that argument stating that the applicant had failed to exhaust domestic remedies with regard to the pre-trial detention period from 20 October 2007 to 28 April 2009, that the domestic courts had indicated relevant and sufficient reasons for the applicant’s detention and that the length of his detention had been reasonable.

14.  The applicant maintained his complaint.

A.  Admissibility

1.  Period of pre-trial detention

15.  In the instant case the applicant was arrested in Hungary on 20 October 2007, but he was remanded in custody in Russia only on 13 September 2008 and convicted on 29 April 2010. The period of pre-trial detention to be taken into consideration began on 13 September 2008 and ended on 29 April 2010. Therefore his detention lasted one year, seven months, and fifteen days.

2.  Exhaustion of domestic remedies

16.  The Court reiterates that, in so far as pre-trial detention is concerned, an applicant should give the domestic courts an opportunity to consider whether his detention had been compatible with his Convention and appeal against, at least, a part of the detention (see Lyubimenko v. Russia, no. 6270/06, § 62, 19 March 2009, and Polonskiy v. Russia, no. 30033/05, § 132, 19 March 2009).

17.  Turning to the circumstances of the present case, the Court notes that the applicant lodged appeals against several extension orders issued after 28 April 2009. He thereby gave the domestic courts an opportunity to consider whether his detention was compatible with Article 5 § 3 of the Convention.

18.  The Court rejects the Government’s argument as to the exhaustion of domestic remedies and 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.

B.  Merits

19.  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 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).

20.  Turning to the circumstances of the present case, the Court notes that there is no reason to arrive at a different finding in the present case. The applicant spent in pre-trial detention about two years, domestic courts resorting to abstract and stereotyped grounds. Such grounds which, although “relevant”, cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.

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

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

22.  The applicant complained that his appeals against detention orders of 28 April 2009, 4 May 2009, 19 August 2009, 14 October 2009, 14 January 2010, and 15 February 2010 had not been considered speedily. 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.”

23.  The Government did not comment.

A.  Admissibility

24.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

25.  The Court will examine the merits of the applicants’ complaints under Article 5 § 4 of the Convention in the light of the applicable general principles set out in, among others, the case Idalov (see Idalov v. Russia [GC] no. 5826/03, §§ 154-55, 161, 22 May 2012, with further references).

26.  The Court notes that it took the domestic courts from one month to more than two months to consider appeals against the above detention orders.

27.  In the Court’s opinion, the issues before the appeal courts were not overly complex. Nor is there anything in the materials before the Court to suggest that either the applicant or his counsel contributed to the length of the appeal proceedings. Moreover, the Government did not provide any justification for the time it took the domestic courts to review the applicant’s pre-trial detention. Accordingly, the entire length of the appeal proceedings in the present case was attributable to the authorities. The Court further reiterates that where an individual’s personal liberty is at stake, it has very strict standards concerning the State’s compliance with the requirement of speedy review of the lawfulness of detention (see, for example, Kadem v. Malta, no. 55263/00, §§ 44-45, 9 January 2003, where the Court considered a time-period of seventeen days in deciding on the lawfulness of the applicant’s detention to be excessive, and Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter alia, twenty-six days, was found to be in breach of the “speediness” requirement of Article 5 § 4 of the Convention).

28.  Having regard to the above, the Court considers that the appeal proceedings for the review of the lawfulness of the applicants’ pre-trial detention cannot be considered compatible with the “speediness” requirement of Article 5 § 4 of the Convention. There has therefore been a violation of that provision.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  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

30.  The applicant claimed 150,000 euros (EUR) in respect of non-pecuniary damage.

31.  The Government stated that the Court should determine compensation in accordance with its case-law.

32.  The Court considers that the applicant must have suffered distress and frustration as a result of the violations of his rights. Having regard to the nature of the violations found, and making its assessment on an equitable basis, the Court awards EUR 6,500 to the applicant in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

33.  The applicant also claimed 25,000 Russian roubles (RUB) as reimbursement of his expenses for translation of documents submitted to the Court and RUB 150,000 as reimbursement of his legal costs incurred in proceedings before the Court.

34.  The Government did not comment.

35.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in the Court’s possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 850 covering costs under all heads.

C.  Default interest

36.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the complaints under Article 5 §§ 3 and 4 of the Convention concerning the length and review of pre-trial detention admissible;

 

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;

 

4.  Holds

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

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                                                                         Helen Keller
Deputy Registrar                                                                       President