THIRD SECTION

CASE OF DUDNICHENKO AND WAES v. RUSSIA

(Applications nos. 49507/10 and 76349/12)

JUDGMENT

STRASBOURG

6 April 2017

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

In the case of Dudnichenko and Waes v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Luis López Guerra, President,
	Dmitry Dedov,
	Branko Lubarda, judges,
and Karen Reid, Section Registrar,
Having deliberated in private on 16 Mach 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2.  The applications were communicated to the Russian Government (“the Government”).
THE FACTS
3.  The list of applicants and the relevant details of the applications are set out in the appended table.
4.  The applicants complained under Article 5 § 3 of the Convention of the excessive length of their pre-trial detention. They further complained under Article 5 § 4 of the Convention. In particular, in application no. 49507/10 the applicant argued that a court had examined appeals against the detention orders in his and his counsel’s absence, and in application no. 76349/12 the applicant submitted that his appeal against a detention order had not been examined “speedily”.
THE LAW
Article I.	I.  JOINDER OF THE APPLICATIONS
5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
Article II.	II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
6.  The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows:
Article 5 § 3
“3.  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.”
7.  The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references).
8.  Turning to the circumstances of the present applications, the Court notes the relatively short duration of the applicants’ pre-trial detention. It further observes that while extending the applicants’ detention the domestic courts had relied on the existence of a reasonable suspicion of their involvement in aggravated violent sexual offences against minors, the particular vulnerability of the victims, the complexity of the criminal cases against the applicants and the existence of a serious risk of their absconding or interfering with justice, confirmed, inter alia, by their previous criminal history, the pattern of their behavior or the absence of clear ties with Russia in case of Mr Waes (application no. 76349/12). The Court is satisfied that the domestic courts cited specific facts in support of their conclusions that the applicants were liable to obstruct justice, to re-offend or abscond. They also considered a possibility of applying alternative measures, but found them to be inadequate. The domestic courts duly examined all the pertinent factors and gave “relevant” and “sufficient” reasons to justify the applicants’ continued detention. The Court also finds that the domestic authorities displayed “special diligence” in the conduct of the proceedings (see, for example, Khloyev v. Russia, no. 46404/13, §§ 96-107, 5 February 2015; Topekhin v. Russia, no. 78774/13, 10 May 2016; Sopin v. Russia, no. 57319/10, 18 December 2012 and Isayev v. Russia, no. 20756/04, 22 October 2009).
9.  In view of the above, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Article III.	III.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
10.  The applicant Mr Dudnichenko (application no. 49507/10) complained that the appeal court had held two appeal detention hearings in his absence and in the absence of his counsel. The applicant Mr Waes (application no. 76349/12) complained that his appeal against a detention order had not been examined speedily. They relied on Article 5 § 4 of the Convention, which read as follows:
Article 5 § 4
“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.”
11.  The Government did not submit any observations.
12.  The Court observes that the general principles regarding the procedural guarantees under Article 5 § 4 of the Convention were laid down in a number of judgments (see, among many other authorities, Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012; Hutchison Reid v. the United Kingdom, no. 50272/99, § 79 Iłowiecki v. Poland, no. 27504/95, § 76, 4 October 2001, ECHR 2003‑IV).
13.  Turning to the circumstances of the present cases, the Court observes that Mr Dudnichenko (application no. 49507/10) was absent from the appeal hearings on 27 July and 15 October 2010 because the Moscow Circuit Military Court had dismissed his leave to appear. The Military Court also failed to ensure the participation of Mr Dudnichenko’s counsel. The prosecutor attended both hearings and made oral submissions.
14.  As regards Mr Waes (application no. 76349/12), the Court observes that on 7 August 2013 he appealed against the detention order of 5 August 2013. It was not until 25 December 2013, that is more than four and a half months later, when the Moscow City Court upheld the detention order on appeal.
15.  The Court has already found a violation of Article 5 § 4 of the Convention in a number of cases against Russia where the domestic courts had failed to ensure the participation of an applicant and/or counsel in the appeal hearings concerning detention (see, Artemov v. Russia, no. 14945/03, §§ 95-97, 3 April 2014; Pyatkov v. Russia, no. 61767/08, §§ 128-33, 13 November 2012; Solovyevy v. Russia, no. 918/02, §§ 134-38, 24 April 2012) or where it took domestic courts more than twenty days to review an applicant’s detention (see Pichugin v. Russia, no. 38623/03, §§ 154-56, 23 October 2012; Butusov v. Russia, no. 7923/04, §§ 32-35, 22 December 2009; Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006).
16.  Having examined all the material submitted to it, the Court does not find any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that the appeal proceedings concerning the lawfulness of the applicants’ detention did not comply with the requirements of Article 5 § 4 of the Convention.
17.  These complaints are therefore admissible and disclose a breach of Article 5 § 4 of the Convention.
Article IV.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
18.  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.”
19.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sums indicated in the appended table.
20.  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 complaints concerning the appeal hearings on the lawfulness of the applicants’ detention admissible and the remainder of the applications inadmissible;

3.  Holds that these complaints disclose a breach of Article 5 § 4 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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.
Done in English, and notified in writing on 6 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Karen Reid	Luis López Guerra
Registrar	President

APPENDIX
List of applications raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
No.	Application no.
Date of introduction	Applicant name
Date of birth
	Period of detention	Length of detention	Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)	
1.		49507/10
14/07/2010	Aleksey Vladimirovich Dudnichenko
01/11/1973
	30/12/2009 to
02/06/2011
	1 year(s) and 5 month(s) and 4 day(s)
	2,500	
2.		76349/12
21/11/2012	Bruno Dirk Bart Jan Waes
28/04/1978	07/08/2011 to
04/10/2012

13/05/2013 to
13/09/2013
	1 year(s) and 1 month(s) and 28 day(s)

4 month(s) and 1 day(s)
	2,500