European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF ZHULIN v. RUSSIA

 

(Application no. 22965/06)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

18 October 2016

 

 

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




In the case of Zhulin 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 27 September 2016,

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

PROCEDURE

1.  The case originated in an application (no. 22965/06) 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 Sergey Vladimirovich Zhulin (“the applicant”), on 14 March 2006.

2.  The applicant was represented by Ms Ye. Nadelman, a lawyer practising in Nizhniy Novgorod. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

3.  On 25 March 2013 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1971 and lives in Arzamas.

5.  In the early hours of 5 June 2005, at about 3 a.m., the police arrested the applicant. In the morning he was interviewed and later taken to the hospital because he broke the window and injured himself. At 6 p.m. the arrest record was drawn up; it gave 6 p.m. as the time of the applicant’s arrest.

6.  On 7 June 2005 the Lukoyanovskiy District Court in the Nizhny Novgorod Region remanded the applicant in custody for an initial two-month period.

7.  On 8 August 2005 the District Court held a hearing to decide, among other matters, on an extension of the applicant’s detention. The applicant asked for release; counsel for the applicant pointed out that, since the authorised detention period had ended on 5 August 2005, his detention in the following three days had been unlawful. The District Court extended the applicant’s detention, finding that the “preventive measure [should] remain unchanged”.

8.  In the statement of appeal against the District Court’s extension order, the applicant complained that the custodial measure which had already expired could not “remain unchanged”. The appeal was forwarded to the Regional Court only on 8 September 2005.

9.  On 23 September 2005 the Regional Court rejected the appeal in a summary fashion, without addressing the applicant’s arguments.

10.  On 25 January 2006 the District Court extended the applicant’s detention until 25 April 2006, without informing the applicant or his representative about the hearing or giving any reasons for its decision. The applicant filed an appeal on 30 January 2006 which was dismissed by the Regional Court on 31 May 2006.

11.  By judgment of 25 August 2006, as upheld on appeal on 17 October 2006, the applicant was found guilty and given a custodial sentence.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

12.  The applicant complained that his initial detention had not been lawful because the detention order of 7 June 2005 had been issued more than forty-eight hours after his arrest on 5 June, and that he had been detained without a judicial order from 5 to 8 August 2005. The Court will examine this complaint under Article 5 § 1 of the Convention which reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save ... in accordance with a procedure prescribed by law ...”

A.  Admissibility

13.  The Government submitted that the applicant’s complaint about his detention in June 2005 was inadmissible for non-exhaustion of domestic remedies and that he had not suffered a significant disadvantage on account to his three-day stay in custody without a judicial order in August 2005.

14.  The Court observes that the applicant’s detention in excess of the forty-eight hours had occurred in June 2005, that is to say, more than six months before he introduced his application on 14 March 2006. In contrast to an objection as to the non-exhaustion of domestic remedies which must be raised by the respondent Government, the Court cannot set aside the application of the six-month rule solely because a government have not made a preliminary objection to that effect. Since the applicant did not resort to any domestic remedies capable of affording him redress, the six-month period started to run from the date of the acts or measures complained of. It follows that this complaint was raised more than six months after the impugned detention period had ended. It must therefore be rejected as being out of time in accordance with Article 35 §§ 1 and 4 of the Convention. By contrast, the final decision regarding the lawfulness of the applicant’s detention between 5 and 8 August 2005 was that of the Regional Court dated 23 September 2005. Accordingly, this part of the complaint is not belated.

15.  The Court further reiterates that, in the light of the prominent place that the right to liberty has in a democratic society, it has consistently rejected the application of the “no significant disadvantage” admissibility criterion in relation to complaints under Article 5 of the Convention (see Van Velden v. the Netherlands, no. 30666/08, §§ 33-39, 19 July 2011; Sýkora v. the Czech Republic, no. 23419/07, § 55, 22 November 2012; Bannikov v. Latvia, no. 19279/03, § 58, 11 June 2013; and Lagunov v. Russia, no. 40025/10, § 13, 1 March 2016). This approach is applicable in the circumstances of the present case, which concerns a deprivation of liberty without a judicial order. The Court considers that genuine respect for human rights requires it to continue examination of the complaint and dismisses the Government’s objection. It further 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

16.  The Government acknowledged that from 5 to 8 August 2005 the applicant was detained without a judicial decision.

17.  The Court reiterates that detention without a court order or other clear legal ground is incompatible with the standard of “lawfulness”, enshrined in Article 5 § 1, since during the time of unauthorised detention an individual would be kept in a legal vacuum not covered by any domestic legal provision (see Khudoyorov v. Russia, no. 6847/02, § 149, ECHR 2005-X (extracts), and Lebedev v. Russia, no. 4493/04, § 57, 25 October 2007).

18.  The Court finds that the applicant’s detention between 5 and 8 August 2005 lacked a legal basis and was therefore “unlawful”. Consequently, there has been a breach of Article 5 § 1 in this respect.

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

19.  The applicant complained under Article 5 § 4 of the Convention that he had not been allowed to make oral submissions to the court at the hearings of 8 August 2005 and 25 January 2006, that the decisions of 8 August and 23 September 2005 had not been reasoned, and that his appeals had not been considered “speedily”. Article 5 § 4 provides 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.  Admissibility

20.  The Government pointed out that on 8 August 2005 both the applicant and his lawyer had been present before the District Court and made oral submissions to it.

21.  The Court observes that the minutes of the hearing on 8 August 2005 lend support to the Government’s claim. Accordingly, this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

22.  The remainder of 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

23.  The Government acknowledged that the hearing on 25 January 2006 had been held in the absence of the applicant and his lawyer, that the decisions of 8 August and 23 September 2005 had not mentioned the applicant’s arguments relating to his unlawful detention from 5 to 8 August 2005 or contained a detailed analysis of his further detention, and that the appeals against the detention orders of 8 August 2005 and 30 January 2006 had not been examined “speedily”.

24.  The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful. The procedure under Article 5 § 4 must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question, including the possibility for a detainee to be heard either in person or through some form of representation (see Mamedova v. Russia, no. 7064/05, § 89, 1 June 2006, with further references). The scope of judicial review under Article 5 § 4 should be wide enough to bear on those conditions which are essential for the detention of a person to be lawful within the meaning of Article 5 § 1 (see Koroleva v. Russia, no. 1600/09, § 110, 13 November 2012, with further references).

25.  The Court finds a violation of Article 5 § 4 of the Convention in the instant case on account of the following elements. Firstly, the applicant and his counsel were not informed of the hearing on 25 January 2006 which deprived the applicant of the possibility to be heard either in person or through his representative. Secondly, the scope of the judicial review, as reflected in the decisions of 8 August and 23 September 2005, was manifestly insufficient in that the Russian courts did not address the applicant’s crucial argument about his unlawful detention in the immediately preceding period or give any reasons for extending the custodial measure (see Lebedev, cited above, §§ 109-15). Thirdly, it took the Regional Court one and a half month to examine the appeal against the detention order of 8 August 2005 and almost four months for the appeal against the order of 30 January 2006, neither period can be considered compatible with the “speediness” requirement of Article 5 § 4 (see Mamedova, cited above, § 96).

26.  There has therefore been a violation of Article 5 § 4 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 6 THE CONVENTION

27.  Lastly, the applicant complained that the criminal proceedings had lasted too long. However, this does not appear to be the case because the conviction became final within two years of the applicant’s arrest. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

28.  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.”

29.  The applicant’s claim for just satisfaction was submitted outside the time-limit and not included in the case file for the consideration by the Court. Accordingly, there is no call to award him any sum under Article 41.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaints concerning the applicant’s detention from 5 to 8 August 2005 and various issues relating to the hearing of 8 August and the subsequent ones admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s unlawful detention from 5 to 8 August 2005;

 

3.  Holds that there has been a violation of Article 5 § 4 of the Convention.

 

Done in English, and notified in writing on 18 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                     Helena Jäderblom
Deputy Registrar                                                                       President