European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

CASE OF DAVLYASHOVA v. RUSSIA

 

(Application no. 69863/13)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

18 October 2016

 

 

 

 

 

 

 

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

 




In the case of Davlyashova 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. 69863/13) 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, Ms Alfiya Rishadovna Davlyashova (“the applicant”), on 16 October 2013.

2.  The applicant was represented by Ms Y. Semkina, a lawyer practising in Tyumen. 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 29 August 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 1964 and is detained in Vinzili, Tyumen Region.

5.  The authorities initiated several criminal proceedings against the applicant. On 28 August 2012 she was arrested on suspicion of fraud.

6.  On 31 August 2012 the Leninskiy District Court of Tyumen remanded her in custody. The court extended her detention stating that she was accused of serious crimes, the crimes did not relate to commercial sphere, another set of criminal proceeding against her was pending and she had been convicted previously, she did not live at her place of residence, she might put pressure on witnesses, destroy or conceal evidence, re-offend, abscond or in any other way interfere with investigation. It appears that criminal proceedings against the applicant are still pending.

THE LAW

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

7.  The applicant complained that the duration of her 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.”

A.  The Government’s request for the case to be struck out under Article 37 of the Convention

8.  On 10 June 2015 the Government submitted a unilateral declaration inviting the Court to strike out this complaint. They acknowledged “violation of Article 5 § 3 of the Convention in respect of the period covered by that provision”. They offered to pay 3,150 euros (EUR) and invited the Court to accept the declaration and strike out the complaint in accordance with Article 37 § 1 (c) of the Convention.

9.  By letter of 17 July 2015, the applicant rejected the Government’s settlement offer. She pointed out that the sum offered was insufficient.

10.  Having studied the terms of the Government’s declaration, the Court is satisfied that the Government acknowledged a violation of the applicant’s right to release pending trial under Article 5 § 3 of the Convention and also offered to pay compensation.

11.  The Court further reiterates that so long as the applicant continues to be deprived of his liberty, despite the Government’s acknowledgement of a violation of his rights guaranteed under Article 5 § 3 of the Convention, respect for human rights as defined in the Convention and the Protocols thereto requires the Court to continue the examination of the complaint (see Namaz and Şenoğlu v. Turkey, no. 69812/11, § 27, 11 June 2013; Zdziarski v. Poland, no. 14239/09, §§ 22-23, 25 January 2011; and Bieniek v. Poland, no. 46117/07, § 22, 1 June 2010).

12.  According to the latest available information, the applicant is still in pre-trial detention. In these circumstances, respect for human rights would require the Court to pursue the examination of the application.

13.  This being so, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.

B.  Admissibility

14.  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.

C.  Merits

15.  The Court reiterates that when determining the length of pre-trial detention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined or when the applicant is released from custody (see Idalov v. Russia [GC], no. 5826/03, § 112, 22 May 2012; Labita v. Italy [GC], no. 26772/95, §§ 145-47, ECHR 2000-IV; Wemhoff v. Germany, 27 June 1968, § 9, Series A no. 7).

16.  In the instant case, it follows from the parties’ submissions that the applicant was still in pre-trial detention as of 17 July 2015. In these circumstances, it is appropriate to take into consideration the most recent date, on which the applicant was known to be in custody, as the end date of the period (see Pushchelenko and Others v. Russia [Committee], nos. 45392/11, 47671/11, 62205/11, 45312/13 and 53366/13, § 28, 12 March 2015).

17.  Accordingly, the applicant’s pre-trial detention lasted from 31 August 2012 to 17 July 2015, i.e. two years, ten months, and sixteen days.

18.  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).

19.  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 three years, domestic courts resorting to abstract and stereotyped grounds and not considering seriously the possibility of alternatives for detention. 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”.

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

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

21.  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

22.  The applicant claimed EUR 47,000 (EUR) in respect of non-pecuniary damage.

23.  The Government did not comment.

24.  The Court considers that the applicant must have suffered distress and frustration as a result of the violation of her rights. Having regard to the nature of the violation found, and making its assessment on an equitable basis, the Court awards EUR 3,100 to the applicant in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

25.  The applicant also claimed EUR 4,700 as reimbursement of her legal costs incurred in proceedings before the Court.

26.  The Government did not comment.

27.  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 legal costs.

C.  Default interest

28.  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 complaint under Article 5 § 3 of the Convention concerning the length of pre-trial detention admissible;

 

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

 

3.  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 3,100 (three thousand one 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

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

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