European Court of Human Rights

 

 

 

THIRD SECTION

 

CASE OF SUKHONOSOVA v. RUSSIA

(Application no. 3945/10)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

STRASBOURG

21 January 2020

 

 

 

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

In the case of Sukhonosova v. Russia,

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

          Georgios A. Serghides, President,
          Erik Wennerström,
          Lorraine Schembri Orland, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 10 December 2019,

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

PROCEDURE

1.  The case originated in an application (no. 3945/10) 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 Klavdiya Nikolayevna Sukhonosova (“the applicant”), on 14 December 2009. An additional application form was submitted on 12 September 2010.

2.  The applicant was represented by Mr I. Khoroshev, a lawyer practising in Krasnoyarsk. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 20 September 2017 the Government were given notice of the complaints concerning the alleged unlawfulness of the applicant’s detention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1969 and lives in Krasnodar.

A.    The applicant’s first conviction

5.  On 23 August 2005 the applicant was convicted of two episodes of aggravated embezzlement and given a suspended sentence of four years’ imprisonment.

B.     The applicant’s second conviction

6.  On 9 April 2009 the applicant was convicted of (a) smuggling banned substances and (b) illegal procurement, possession and supply of banned substances. The applicant was sentenced to a four-year prison term. The custodial sentence had the legal effect of annulling the suspensive clause of the first sentence. The cumulative sentence was that of a five years’ imprisonment. The applicant was taken into custody in the courtroom.

7.  On 30 June 2009 the appellate court upheld the judgment of 9 April 2009.

C.    Modification of the first conviction

8.  On 15 September 2009 the Presidium of the Krasnoyarsk Regional Court, acting on the applicant’s supervisory-review application modified the judgment of 23 August 2005. It removed the aggravating element and reduced the applicant’s sentence. She was immediately exempted from serving it because, by that time, the statute of limitations had expired.

D.    Modification of the second conviction

9.  On 1 June 2010 the Presidium of the Krasnoyarsk Regional Court, in the supervisory-review proceedings, quashed the appeal judgment of 30 June 2009 and remitted it for a new appeal hearing.

10.  On 12 August 2010 the appellate court pronounced a partial acquittal of the applicant on the charge of smuggling and also removed a reference to the first conviction. As a consequence, the sentence was reduced to one and a half years’ imprisonment. As by that moment the applicant had served a longer time, the appellate court ordered her immediate release.

11.  The applicant was released on the following day, 13 August 2010.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

12.  The applicant complained about her unlawful detention during the second trial in 2008 and for one day in 2010 on account of her delayed release from prison. She also complained that her detention between 9 April 2009 and 13 August 2010 had been unlawful because it had been based on a subsequently modified judgment. She relied on Article 5 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 the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court ...”

A.    Admissibility

13.  The Government submitted that the applicant had not claimed compensation for her unlawful detention and thus her complaints were inadmissible for non-exhaustion. They also considered that some complaints had been submitted outside the six-month period.

14.  The Court has previously established that in the absence of an explicit and formal acknowledgement by the domestic court of the unlawful nature of the applicant’s detention, a claim for compensation had no prospects of success and the applicant was not required to exhaust that remedy (see Chuprikov v. Russia, no. 17504/07, § 98, 12 June 2014). In the present case the national courts did not acknowledge the unlawfulness of any periods of the applicant’s detention. Accordingly, the Court dismisses the Government’s non-exhaustion objection.

15.  As for the six-month period, the Court observes that the applicant first mentioned the allegedly unlawful detention, which had occurred in 2008, more than a year later, on 14 December 2009. Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

16.  By contrast, the applicant’s complaint about her detention in 2010 was first mentioned in the introductory letter of 12 September 2010 and elaborated upon in the completed application form which she had returned to the Court within the set time-limit. Accordingly, it was not belated.

17.  The Court reiterates that a period of detention will in principle be lawful if carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Convention organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see Benham v. the United Kingdom, 10 June 1996, § 42, Reports of Judgments and Decisions 1996‑III). For the assessment of compliance with Article 5 § 1 of the Convention the basic distinction has to be made between ex facie invalid detention orders - for example, given by a court in excess of jurisdiction or where the interested party did not have proper notice of the hearing - and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court (see Khudoyorov v. Russia, no. 6847/02, § 129, ECHR 2005‑X (extracts), with further references).

18.  In the present case, nothing indicates that the first or second conviction were anything but lawful at the time they were pronounced. The applicant’s detention which was effected on the basis of those judgments was likewise lawful. This finding is undisturbed even though the supervisory-review court later recharacterised the first offence and acquitted the applicant of one of the charges that had been levelled against her in the second trial. Although the applicant stayed in custody one month longer than the adjusted sentence had required, her situation was no different from people whose convictions were set aside on appeal. In these circumstances, the Court finds that the applicant’s complaint about her detention between 9 April 2009 and 12 August 2010 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

19.  There remains a complaint about the applicant’s delayed release on 13 August 2010. The Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It notes that this complaint is not inadmissible on any other grounds. This complaint must therefore be declared admissible.

B.     Merits

20.  The Government acknowledged that the applicant had been released one day too late in breach of Article 5 requirements.

21.  The Court reiterates that some delay in implementing a decision to release a detainee is understandable, and often inevitable, in view of practical considerations relating to the running of the courts and the observance of particular formalities. However, the national authorities must attempt to keep this to a minimum. Administrative formalities connected with release cannot justify a delay of more than a few hours (see, for example, Ruslan Yakovenko v. Ukraine, no. 5425/11, § 68, ECHR 2015, with further references).

22.  In the present case the Court was not provided with a justification for the one day delay in the applicant’s release. There is nothing to suggest that there were any particular difficulties in securing the applicant’s immediate release (see Butkevich v. Russia, no. 5865/07, § 67, 13 February 2018). There has therefore been a violation of Article 5 § 1 of the Convention on account of the applicant’s delayed release on 13 August 2010.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  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.”

24.  The applicant claimed 3,000 euros (EUR) in respect of non‑pecuniary damage and EUR 1,429 for the costs and expenses incurred before the Court.

25.  The Government asked that just satisfaction claims should be assessed in accordance with the Court’s established case-law.

26.  The Court awards the applicant EUR 3,000 in respect of non‑pecuniary damage and EUR 1,429 in respect of the costs and expenses, plus any tax that may be chargeable in respect of those sums.

27.  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 concerning the applicant’s delayed release on 13 August 2010 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 delayed release on 13 August 2010;

3.      Holds

(a)   that the respondent State is to pay the applicant, 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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)       EUR 1,429 (one thousand four hundred and twenty-nine euros), plus any tax that may be chargeable to the applicant, 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;

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

Done in English, and notified in writing on 21 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                           Georgios A. Serghides
       Registrar                                                                           President