European Court of Human Rights

 

 

THIRD SECTION

 

 

 

 

 

 

 

CASE OF VAKHITOV AND OTHERS v. RUSSIA

 

(Applications nos. 18232/11 and 2 others - see appended list)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

31 January 2017

 

 

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 




In the case of Vakhitov and Others v. Russia,

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

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 10 January 2017,

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

PROCEDURE

1.  The case originated in three applications (nos. 18232/11, 42945/11 and 31596/14) 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 three Russian nationals, Mr Florid Railyevich Vakhitov, Mr Maksim Andreyevich Bogdashkin and Mr Karnik Mkrdychevich Aslanyan (“the applicants”), on 25 February 2011, 15 June 2011 and 16 April 2014 respectively.

2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. One of the applicants, Mr Aslanyan was represented by Mr A. B. Tolstykh, a lawyer practising in Moscow.

3.  The applicants alleged that after their respective arrests they had not been brought promptly before a judge, in breach of Article 5 § 3 of the Convention.

4.  On 26 May 2015 the complaints concerning Article 5 § 3 of the Convention formulated by all applicants, the complaints concerning Article 5 §§ 1, 2 and 4 of the Convention lodged by Mr Bogdashkin and that concerning Article 6 § 2 of the Convention formulated by Mr Aslanyan were communicated to the Government and the remaining parts of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The facts of the cases, as submitted by the parties, may be summarised as follows.

A.  Application no. 18232/11, lodged by Mr Vakhitov

6.  The applicant was born in 1986 and is detained in Sterlitamak, Perm region.

7.  On 24 August 2009 the Sovetskiy District Court of Ufa convicted the applicant of drug trafficking and sentenced him to four years’ imprisonment with two years’ probation.

8.  On 2 February 2010 the Supreme Court of the Bashkortostan Republic quashed the applicant’s conviction and remitted the case for fresh examination.

9.  On 19 February 2010 the Sovetskiy District Court scheduled the first hearing for 4 March 2010.

10.  On 26 February 2010 the applicant and his lawyer were sent a notification about the hearing by ordinary letter post. According to the applicant, they never received this letter.

11.  On 4 March 2010, in view of the applicant’s failure to appear before it, the trial court ordered his compulsory attendance.

12.  On 18 March 2010 the trial court sent a letter ordering the applicant’s compulsory attendance the following day to the bailiff service in Tuymazy. This letter was not received by the bailiffs until 20 March 2010.

13.  On 19 March 2010 the trial court noted that the applicant had again failed to appear and decided to remand him in custody in absentia. According to the applicant, he and his lawyer had not been notified about the hearing of 19 March 2010.

14.  On 15 April 2010 the applicant was arrested in Tuymazy. According to him, he was apprehended at his place of work. He was placed in a temporary detention centre in Tuymazynskiy district. Later on the same day, he was transferred to Ufa and the judge of the Sovetskiy District Court was informed accordingly.

15.  On 19 April 2010 the applicant’s lawyer lodged an appeal against the detention order of 19 March 2010, arguing that neither the applicant nor his lawyer had been apprised of the hearings of 4 and 19 March.

16.  On 28 April 2010 the judge in charge of the applicant’s case decided that the latter should remain in detention. The applicant and his lawyer were neither notified of nor present at this hearing.

17.  On 10 May 2010 the applicant supplemented the appeal lodged against the decision of 19 March 2010.

18.  On 25 May 2010 the applicant was released at the hearing in return for an undertaking not to leave his place of residence.

19.  On an unspecified date the President of the Sovetskiy District Court confirmed in a letter sent to the applicant’s lawyer that the summonses to the hearing of 4 March 2010 had been sent to the applicant and his representative on 26 February 2010 by ordinary post and that the case file did not contain any indication that they had actually been received by them.

20.  On 26 August 2010 the Supreme Court of the Bashkortostan Republic confirmed the decision of 19 March 2010, finding that the applicant had been duly apprised of the hearings of 4 and 19 March 2010 at his place of residence.

21.  On 15 March 2011 the trial court found the applicant guilty and sentenced him to four years and six months’ imprisonment. The applicant was remanded in custody immediately in the courtroom.

B.  Application no. 42945/11, lodged by Mr Bogdashkin

22.  The applicant was born in 1986 and lives in Krasnokamensk, Krasnoyarsk region.

23.  On 28 September 2010 the justice of the peace of judicial district no. 94 postponed the examination of the applicant’s criminal case to 11 October 2010 in view of his absence from the hearing without explanation. According to the applicant, he had not been informed about the hearing.

24.  On 11 October 2010 the justice of the peace ordered suspension of the proceedings and that a search for the applicant be conducted. He also held that, once arrested, the applicant should be remanded in custody. On the same day, the applicant’s name was placed on the search list.

25.  On 4 March 2011 the applicant was arrested by police and placed in a temporary detention centre in Kuraginskiy district.

26.  On 11 March 2011 the applicant submitted a complaint to the prosecutor of the Krasnoyarsk region about his unlawful detention and the police’s failure to inform him about the reasons for his arrest. He referred in particular to their failure to provide him with a copy of the detention order of 11 October 2010 and stated that at the time of his transfer to Minusinsk, Krasnoyarsk region, on 7 March 2011 he had still not been informed of the reasons for his detention.

27.  On 12 April 2011 the trial court convicted the applicant of attempted murder and sentenced him to one year and nine months’ imprisonment.

C.  Application no. 31596/14, lodged by Mr Aslanyan

28.  The applicant was born in 1973 and was detained in Krasnodar.

29.  On 25 April 2013 the applicant was indicted for murder.

30.  On 30 May 2013 the applicant’s name was placed on the international search list because he had fled from his place of residence.

31.  On 14 May 2013 the Oktyabrskiy District Court of Krasnodar issued a detention order in absentia in respect of the applicant.

32.  On 11 July 2013 the applicant was arrested.

33.  On 4 September 2013 the Oktyabrskiy District Court extended the applicant’s detention at a hearing at which the applicant was present. The district court held that the applicant’s guilt was confirmed, both by his own testimonies and by other evidence collected by the investigation.

34.  On an unspecified date the applicant challenged the detention order of 4 September 2013. He referred to Article 5 § 3 of the Convention, arguing that the authorities had failed to bring him before a judge promptly after he was apprehended on 11 July 2013. He also referred to Article 6 § 2 of the Convention, arguing that the wording used in the detention order ran counter to the presumption of innocence.

35.  On 16 October 2013 the Krasnodar Regional Court upheld the aforementioned detention order on appeal. It does not appear that the Regional Court addressed any of the applicant’s arguments.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

36.  The Code of Criminal Procedure of the Russian Federation (CCrP), in force with effect from 1 July 2002, allows a court to take a decision to place an accused in custody in the latter’s absence only if an international warrant for his arrest has been issued (Article 108 § 5). No extension of detention may be ordered by the court in the absence of the accused unless the latter is undergoing forensic psychiatric examination in an inpatient institution or there are other circumstances that make it impossible to bring him to court, the existence of which circumstances must be confirmed by the presentation of the appropriate documentation (Article 109 § 13). Where such circumstances exist, the presence of a defence counsel at the court hearing must be ensured (ibid.).

37.  In its judgment no. 4-P of 22 March 2005, the Constitutional Court of the Russian Federation pronounced its opinion on the right of defendants to be heard in detention matters during the criminal proceedings and stated as follows:

“3.3. ... Since deprivation of liberty ... is permissible only pursuant to a court decision taken at a hearing ... on condition that the detainee has been provided with an opportunity to submit his arguments to the court, the prohibition on issuing a detention order ... without a hearing shall apply to all court decisions, whether they concern the initial imposition of this preventive measure or its confirmation.”

THE LAW

I.  JOINDER OF THE APPLICATIONS

38.  Given their similar factual and legal background, the Court decides that the applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

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

39.  The applicants complained that after their respective arrests they had not been promptly brought before a judge, in breach of Article 5 § 3 of the Convention, the pertinent parts of which read as follows:

“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

40.  The Government denied any irregularities in the applicants’ detention. They pointed out that the detention orders of 19 March 2010 (Mr Vakhitov), 11 October 2010 (Mr Bogdashkin) and 14 May 2013 (Mr Aslanyan) issued by the domestic courts constituted a lawful basis for the applicants’ detention following their arrests by the police. All the detention orders had been issued because the applicants had either absconded from trial (Mr Vakhitov and Mr Bogdashkin) or his name had been put on the international search list (Mr Aslanyan). Therefore, given that at the moment of the applicants’ arrests the grounds relied upon in these detention orders were still valid - namely the persistence of the risk of the applicants’ absconding - there was no reasonable need to bring them before a judge for examination of an issue which had already been decided by a competent authority in accordance with the procedure provided for by law.

41.  The Government also argued that the complaints were inadmissible on account of the applicants’ failure either to appeal against the detention order issued in absentia (Mr Aslanyan) or immediately to lodge an application for release (all applicants). They referred to the example of Mr Vakhitov, who subsequently availed himself of the latter possibility and on 25 May 2010 he had been released in return for an undertaking not to leave his place of residence.

42.  Mr Vakhitov did not submit any observations. Other applicants reiterated their complaints. In particular, Mr Bogdashkin contended that he and his lawyer had not been properly notified about the trial court’s hearings and questioned whether he could indeed be considered to have gone into hiding.

A.  Admissibility

43.  As regards the Government’s non-exhaustion plea, the Court considers that this argument is closely linked to the merits of the case and should be considered together with them. It notes that the 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

1.  General principles

44.  Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of an individual (see, for example, its link with Articles 2 and 3 in disappearance cases such as Kurt v. Turkey, 25 May 1998, § 123, Reports of Judgments and Decisions 1998-III) and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see, for example, Lukanov v. Bulgaria, 20 March 1997, § 41, Reports 1997-II, and Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004-II). Three strands in particular may be identified as running through the Court’s case-law: the exhaustive nature of the exceptions, which must be interpreted strictly (see Ciulla v. Italy, 22 February 1989, § 41, Series A no. 148) and which do not allow for the broad range of justifications under other provisions (Articles 8-11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33); and the importance of the promptness or speediness of the requisite judicial controls (under Article 5 §§ 3 and 4 of the Convention).

45.  Article 5 § 3 of the Convention as part of this framework of guarantees is structurally concerned with two distinct matters: the early stages following an arrest when an individual is taken into the power of the authorities, and the period pending eventual trial before a criminal court during which the suspect may be detained or released with or without conditions (see T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999 and more recently Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 98, ECHR 2016).

(a)  the situation of an apprehended suspect

46.  Taking the initial stage under the first limb, the Court’s case-law establishes that there must be protection of an individual arrested or detained on suspicion of having committed a criminal offence through judicial control. Such control serves to provide effective safeguards against the risk of ill-treatment, which is at its greatest in this early stage of detention, and against the abuse of powers bestowed on law enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures. The judicial control must satisfy the following requirements.

(i)  Promptness

47.  The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (see Brogan and Others v. the United Kingdom, 29 November 1988, § 62, Series A no. 145-B, where periods of more than four days in detention without appearance before a judge were held to be in violation of Article 5 § 3 of the Convention, even in the special context of terrorist investigations; and Kandzhov v. Bulgaria, no. 68294/01, § 65, 6 November 2008, in which a period of three days and twenty-three hours was found to be not “prompt”).

(ii)  Automatic nature of the review

48.  The review must be automatic and cannot depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4 of the Convention which gives a detained person the right to apply for release. The automatic nature of the review is necessary to fulfil the purpose of the paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review his detention (see Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999-III).

(iii)  The characteristics and powers of the judicial officer

49.  Under Article 5 § 3 of the Convention, there is both a procedural and a substantive requirement. The procedural requirement places the “officer” under the obligation to question in person the individual brought before him; the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding - by reference to legal criteria - whether there are reasons to justify detention, and of ordering release if no such reasons exist (see McKay v. the United Kingdom [GC], no. 543/03, § 35, ECHR 2006-X).

(b)  the situation of suspects arrested after they were deemed as gone into hiding

50.  The above requirements of Article 5 § 3 of the Convention likewise apply in a situation in which a person suspected of having committed a criminal offence and allegedly gone into hiding is subsequently arrested on the basis of a detention order issued by a court in his absence (see Poghosyan v. Armenia, no. 44068/07, §§ 69-71, 20 December 2011; Ladent v. Poland, no. 11036/03, §§ 71-76, 18 March 2008; Harkmann v. Estonia, no. 2192/03, §§ 30-40, 11 July 2006; and Salih Salman Kılıç v. Turkey, no. 22077/10, § 28, 5 March 2013).

51.  The possibility of a court issuing an arrest warrant in absentia in a situation where a person has fled from justice does not per se conflict with the provisions of the Convention (see Garabayev v. Russia, no. 38411/02, § 101, 7 June 2007). However, once such person had been arrested by the police, he should have been brought promptly before a judge within the meaning of Article 5 § 3 of the Convention. The text of this provision does not provide for any possible exceptions, not even on grounds of prior judicial involvement (see Harkmann, cited above, § 38, and Bergmann v. Estonia, no. 38241/04, § 45, 29 May 2008). To conclude otherwise would run counter to the plain meaning of this provision (see Ladent, cited above, § 75).

2.  Application to the present case

52.  In the present case, all the applicants were arrested in the context of criminal proceedings initiated against them. All of them were taken into custody because they were considered as suspects or accused of having committed a criminal offence. Article 5 § 3 of the Convention was, therefore, applicable to their cases and they should have been promptly taken before a judge after their respective arrests on 15 April 2010, 4 March 2011 and 11 July 2013 (see paragraphs 14, 25 and 32 above). However, it was not until 25 May 2010, 12 April 2011 and 4 September 2013, that is forty-one, thirty-nine and fifty-five days later, that the applicants were provided with a possibility to make personal representations about their cases before a judge (see paragraphs 18, 27 and 33 above). Such periods cannot be considered as compatible with Article 5 § 3 of the Convention (see paragraph 47 above).

53.  As regards the reasons referred to by the Government, such as the applicants’ ability to lodge an application for release or prior judicial involvement, the Court reiterates that none of them could exempt the authorities from their obligation under Article 5 § 3 of the Convention (see paragraphs 48 and 51 above). The same considerations apply to the Government’s reference to the persistence of the same reasons and risks justifying the applicants’ continued detention since the detention orders based on those reasons were issued in the applicants’ absence, that is without them having a chance to present the court with possible personal reasons militating against their detention (see paragraph 49 above and Harkmann, cited above, § 35). In this respect, the Court cannot but observe that as soon as at least one of the applicants was provided with such a possibility he was released under an undertaking not to leave his place of residence (see paragraph 18 above).

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

III.  OTHER ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

55.  Relying on Article 5 §§ 1, 2 and 4 of the Convention, Mr Bogdashkin also complained about other irregularities when he was apprehended on 4 March 2011 and during his subsequent detention. The relevant parts of this Article are read as follows:

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

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

...

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.  Article 5 § 2 of the Convention

56.  The applicant complained that the authorities had failed promptly to inform him of the reasons for his arrest. He stated that it was not until 15 June 2011 that he had been provided with a copy of the detention order of 11 October 2010 authorising his placement in pre-trial detention on the grounds that he had gone into hiding.

1.  Admissibility

57.  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.

2.  Merits

58.  The Government conceded that the record drawn up when the applicant was apprehended did not state any reasons why it had occurred. However, given the general obligation incumbent on police officers to inform apprehended persons of the reasons for their arrest and the fact that the applicant was aware of criminal proceedings pending against him, they argued that it was not unreasonable to assume that he would know why he had been arrested. Finally, the Government stated that as of April 2011 the applicant had had access to all the material in the case file, implying that the case file also contained a copy of the detention order of 11 October 2010.

59.  The applicant reiterated his complaint.

60.  The Court reiterates that paragraph 2 of Article 5 of the Convention contains the elementary safeguard that anyone who has been arrested should be told why he is being deprived of his liberty. This is a minimum safeguard against arbitrary treatment. The provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 anyone who is arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed are sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182). Anyone entitled to bring proceedings in order to have the lawfulness of his detention speedily decided cannot make effective use of that right unless he is promptly and adequately informed of the reasons relied on to deprive him of his liberty (see Van der Leer v. the Netherlands, 21 February 1990, § 28, Series A no. 170-A). Furthermore, if the grounds for detention change, or if new relevant facts arise concerning the detention, a detainee has a right to be apprised of this further information (see X. v. the United Kingdom, no. 6998/75, Commission’s report of 16 July 1980, § 105, Series B no. 41).

61.  The time constraint imposed by the notion of promptness will be complied with where the reasons for arrest are provided within a few hours of the arrest in question (see Kerr v. the United Kingdom (dec.), no. 40451/98, 7 December 1999, and Fox, Campbell and Hartley, cited above, § 41). A violation was found by the Court in a case where seventy-six hours elapsed before the applicants were informed of the reasons for their detention (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 416, ECHR 2005-III, where the Court found a violation in respect of a four-day delay, and Rusu v. Austria, no. 34082/02, § 43, 2 October 2008 in respect of a ten-day delay).

62.  In the present case, the applicant claimed that he had not been informed of the reasons for his arrest. The Government did not contest that allegation. As regards their argument that the applicant would in any event have been aware of the reasons for his arrest because he knew of the existence of criminal proceedings pending against him, the Court reiterates that the obligation to inform under Article 5 § 2 of the Convention rests with the national authorities (see Malofeyeva v. Russia, no. 36673/04, § 70, 30 May 2013).

63.  Even assuming that the information about the reasons for his arrest on 4 March 2011 was provided to the applicant in April 2011 (see paragraph 58 above), such a lengthy period cannot be deemed compatible with the requirement of promptness enshrined in Article 5 § 2 of the Convention.

64.  There has accordingly been a violation of that provision.

B.  Other alleged violations of Article 5 of the Convention

65.  Taking into account the facts of the case, the submissions of the parties, and its findings under Article 5 §§ 2 and 3 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).

IV.  ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

66. Mr Aslanyan further complained that in the course of reviewing his detention on remand, on 4 September 2013, the Oktyabrskiy District Court had declared him guilty before his guilt had been proved according to law and, further, that on 16 October 2013 the Krasnodar Regional Court had failed to rectify this “error” on appeal. Article 6 § 2 of the Convention reads as follows:

“2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law...”

67.  The Government conceded that a judge examining the issue of detention should avoid taking a position on the person’s guilt or innocence. However, considering that the detention judge is not in any event empowered to decide this issue, this declaration was therefore of no consequence.

A.  Admissibility

68.  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

69.  The Court notes that in the grounds for its decision of 4 September 2013 on prolonging the applicant’s detention, the Oktyabrskiy District Court stated that the evidence against the applicant, including his own statements, indicated that he had committed the offences with which he had been charged.

70.  The Court notes the explicit and unqualified character of the impugned statement and finds that it amounted to a pronouncement on the applicant’s guilt before he was proved guilty according to law. The Court emphasises that there can be no justification for a court of law to make a premature pronouncement of this kind (see Finster v. Poland, no. 24860/08, §§ 51-55, 8 February 2011, with further references).

71.  There has accordingly been a violation of Article 6 § 2 of the Convention.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

72.  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.”

73.  Mr Vakhitov 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.

A.  Damage

74.  Mr Bogdashkin and Mr Aslanyan claimed 12,000 euros (EUR) and EUR 50,000, respectively, in respect of non-pecuniary damage. Mr Bogdashkin also claimed pecuniary damage corresponding to his alleged loss of salary during the period of detention in question.

75.  The Government contested their claims, considering them vague and unsubstantiated.

76.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards Mr Bogdashkin and Mr Aslanyan EUR 6,500 each in respect of non-pecuniary damage.

B.  Costs and expenses

77.  Mr Aslanyan also claimed 300,000 Russian roubles (RUB) (approximately EUR 6,148) in respect of the fees payable to his lawyer Mr Tolstykh and EUR 74 for the postal costs and expenses incurred before the Court. He provided a copy of the agreement signed with his representative, a payment order of 25 February 2014 indicating that he had already paid RUB 100,000 under this agreement and a postal receipt.

78.  The Government contended that the applicant had failed to provide supporting documents justifying the amounts claimed.

79.  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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all for the proceedings before the Court.

C.  Default interest

80.  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.  Decides to join the applications;

 

2.  Declares the applications admissible;

 

3.  Holds that there has been a violation of Article 5 § 3 of the Convention on account of the authorities’ failure to promptly bring the applicants before a judge following their respective arrests;

 

4.  Holds that there has been a violation of Article 5 § 2 of the Convention on account of the authorities’ failure promptly to inform Mr Bogdashkin about the reasons for his arrest;

 

5.  Holds that there is no need to examine other complaints under Article 5 of the Convention lodged by Mr Bogdashkin based on the same facts;

 

6.  Holds that there has been a violation of Article 6 § 2 of the Convention on account of the wording used by the Oktyabrskiy District Court in its detention order of 4 September 2013 issued in respect of Mr Aslanyan;

 

7.  Holds

(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, 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) each to Mr Bogdashkin and Mr Aslanyan, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros) to Mr Aslanyan, 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;

 

8.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 31 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                    Luis López Guerra
Deputy Registrar                                                                       President

 




 

APPENDIX

 

List of cases

 

1.  18232/11    Vakhitov and Others v. Russia

2.  42945/11    Bogdashkin v. Russia

3.  31596/14    Aslanyan v. Russia