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You are here: BAILII >> Databases >> European Court of Human Rights >> MALYSHEV AND OTHERS v. RUSSIA - 9209/11 (Judgment : Right to liberty and security : Third Section Committee) [2020] ECHR 896 (10 December 2020)
URL: http://www.bailii.org/eu/cases/ECHR/2020/896.html
Cite as: [2020] ECHR 896, ECLI:CE:ECHR:2020:1210JUD000920911, CE:ECHR:2020:1210JUD000920911

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THIRD SECTION

CASE OF MALYSHEV AND OTHERS v. RUSSIA

(Applications nos. 9209/11 and 8 others - see appended list)

JUDGMENT

STRASBOURG

10 December 2020

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

In the case of Malyshev and Others v. Russia,

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

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 19 November 2020,

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 Russian Government (“the Government”) were given notice of the applications.

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 of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

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.

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 reads 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. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.

9. Having examined all the material submitted to it, the Court has not found 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 in the instant case the length of the applicants’ pre-trial detention was excessive.

10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11. In applications nos. 9209/11, 23736/17, 69128/17 and 24901/18, the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts), concerning placement of applicants in a metal cage during court hearings; Idalov v. Russia [GC], no. 5826/03, 22 May 2012, related to lack of speedy review of detention matters; Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011, and Svipsta v. Latvia, no. 66820/01, ECHR 2006‑III (extracts), regarding lack of legal assistance in detention hearings.

IV. REMAINING COMPLAINTS

12. In some applications the applicants also complained under Article 5 § 1 of the Convention about excessively lengthy detention in violation of domestic law. Having regard to the facts of the cases, the submissions of the parties, and its findings under Article 5 § 3 of the Convention, the Court considers that it has examined the main legal questions raised in the present applications with regard to Article 5 of the Convention. It thus considers that the applicants’ complaints are admissible but that there is no need to give a separate ruling on the complaints under Article 5 § 1 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

13. 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.”

14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table.

15. 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 these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;

4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);

5. Holds that there is no need to examine the complaints under Article 5 § 1 of the Convention raised in some applications;

6. 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 10 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Darian Pavli

Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 5 § 3 of the Convention

(excessive length of pre-trial detention)

Application no. Date of introduction	Applicant’s name Year of birth	Period of detention	Court which issued detention order/examined appeal	Length of detention	Specific defects	Other complaints under well‑established case-law	Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant (in euros) [1]
9209/11 30/11/2010	Sergey Aleksandrovich MALYSHEV 1979	01/07/2010 to 13/04/2011	Oktyabrskiy District Court of Moscow, Moscow City Court	9 month(s) and 13 day(s)	failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to examine the possibility of applying other measures of restraint.	Art. 5 (4) - excessive length of judicial review of detention - detention authorised by the Ostankinskiy District Court of Moscow on 02/07/2010. The detention order was upheld on appeal by the Moscow City Court on 06/09/2010 (66 days).	1,700
23736/17 06/03/2017	Yevgeniy Aleksandrovich TYSHKO 1972	28/10/2015 to 16/03/2016 02/08/2016 to 10/05/2017	Sovetskiy District Court of Krasnoyarsk, Krasnoyarsk Regional Court	4 month(s) and 18 day(s) 9 month(s) and 9 day(s)	failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention.	Art. 5 (4) - excessive length of judicial review of detention - detention order of 14/11/2016 examined and upheld on appeal on 17/01/2017	2,000
33054/17 12/04/2017	Rustem Valeriyanovich KHAMZIN 1977	04/02/2015 to 30/07/2018	Kirovskiy District Court of Ufa, Supreme Court of Bashkortostan Republic, Privolzhskiy Military District Court	3 year(s) and 5 month(s) and 27 day(s)	Collective detention orders. The applicant’s detention pending the examination of the case file lasted for almost a year. The Government did not argue that the prolonged period of the applicant’s examination of the case file in his case was due to any objective reasons (such as the volume of the case file). Neither did the domestic courts examine whether there had been any delays attributable to the investigating authorities. There were no attempts on the part of the domestic authorities to speed up the applicant’s examination of the case file by making new arrangements. Moreover, the protracted length of that examination process evidently benefited the investigating authorities, who completed their investigation in the meantime. The trial of the applicant’s case lasted for almost a year. Although there could have existed relevant and sufficient grounds for the applicant’s detention at some stages of the proceedings, the domestic authorities failed to provide relevant and specific justification for the continued application of the measure of restraint, coupled with the lack of diligence on their part.		4,700
37006/17 12/05/2017	Aleksandr Valeryevich KORNEV 1987	04/02/2015 to 30/07/2018	Kirovskiy District Court of Ufa, Supreme Court of Bashkortostan Republic, Privolzhskiy Military District Court	3 year(s) and 5 month(s) and 27 day(s)	Collective detention orders. The applicant’s detention pending the examination of the case file lasted for almost a year. The Government did not argue that the prolonged period of the applicant’s examination of the case file in his case was due to any objective reasons (such as the volume of the case file). Neither did the domestic courts examine whether there had been any delays attributable to the investigating authorities. There were no attempts on the part of the domestic authorities to speed up the applicant’s examination of the case file by making new arrangements. Moreover, the protracted length of that examination process evidently benefited the investigating authorities, who completed their investigation in the meantime. The trial of the applicant’s case lasted for almost a year. Although there could have existed relevant and sufficient grounds for the applicant’s detention at some stages of the proceedings, the domestic authorities failed to provide relevant and specific justification for the continued application of the measure of restraint, coupled with the lack of diligence on their part.		4,700
38207/17 04/05/2017	Artem Mikhaylovich ZYULIN 1981	02/12/2014 to 05/05/2017	Sovetskiy District Court of Kazan, Supreme Court of the Tatarstan Republic	2 year(s) and 5 month(s) and 4 day(s)	use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to conduct the proceedings with due diligence during the period of detention.		3,400
62452/17 07/08/2017	Timur Nikolayevich MALYGIN 1996	12/04/2015 to 03/10/2017	Sovetskiy District Court of Kazan; Supreme Court of the Tatarstan Republic	2 year(s) and 5 month(s) and 22 day(s)	Collective detention orders; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding.		3,400
65217/17 23/08/2017	Givi Borisovich DZHAGMAIDZE 1979	17/03/2017 to 20/11/2019	Georgiyevsk Town Court; Stavropol Regional Court	2 year(s) and 8 month(s) and 4 day(s)	As the case progressed, use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention.		3,800
69128/17 21/08/2017	Denis Sergeyevich KHOROBRYKH 1987	22/01/2015 to 03/10/2017	Sovetskiy District Court of Kazan; Supreme Court of the Tatarstan Republic	2 year(s) and 8 month(s) and 12day(s)	Collective detention orders; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding.	Art. 3 - use of metal cages and/or other security arrangements in courtrooms - Sovetskiy District Court of Kazan during the criminal proceedings against the applicant, Art. 13 - lack of any effective remedy in domestic law in respect of the complaint about the placement in a metal cage	9,750
24901/18 24/04/2018	Rafis Ravilevich NASYBULLIN 1980	22/11/2016 to 19/02/2019	Sovetskiy District Court of Kazan; Supreme Court of the Tatarstan Republic	2 year(s) and 2 month(s) and 29 day(s)	use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; “white-collar” crime; failure to examine the possibility of applying other measures of restraint.	Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention - The applicant was not provided with legal assistance at the appellate hearing against the detention order on 02/03/2018 (Svipsta v. Latvia no. 66820/01, 9 March 2006, § 129)	3,500

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Period of detention

Court which issued detention order/examined appeal

Length of detention

Specific defects

Other complaints under well‑established case-law

Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant

(in euros) [1]

9209/11

30/11/2010

Sergey Aleksandrovich MALYSHEV

1979

01/07/2010 to

13/04/2011

Oktyabrskiy District Court of Moscow,

Moscow City Court

9 month(s) and 13 day(s)

failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to examine the possibility of applying other measures of restraint.

Art. 5 (4) - excessive length of judicial review of detention - detention authorised by the Ostankinskiy District Court of Moscow on 02/07/2010. The detention order was upheld on appeal by the Moscow City Court on 06/09/2010 (66 days).

1,700

23736/17

06/03/2017

Yevgeniy Aleksandrovich TYSHKO

1972

28/10/2015 to

16/03/2016

02/08/2016 to

10/05/2017

Sovetskiy District Court of Krasnoyarsk,

Krasnoyarsk Regional Court

4 month(s) and 18 day(s)

9 month(s) and 9 day(s)

failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention.

Art. 5 (4) - excessive length of judicial review of detention - detention order of 14/11/2016 examined and upheld on appeal on 17/01/2017

2,000

33054/17

12/04/2017

Rustem Valeriyanovich KHAMZIN

1977

04/02/2015 to

30/07/2018

Kirovskiy District Court of Ufa,

Supreme Court of Bashkortostan Republic,

Privolzhskiy Military District Court

3 year(s) and 5 month(s) and 27 day(s)

Collective detention orders.

The applicant’s detention pending the examination of the case file lasted for almost a year. The Government did not argue that the prolonged period of the applicant’s examination of the case file in his case was due to any objective reasons (such as the volume of the case file). Neither did the domestic courts examine whether there had been any delays attributable to the investigating authorities. There were no attempts on the part of the domestic authorities to speed up the applicant’s examination of the case file by making new arrangements. Moreover, the protracted length of that examination process evidently benefited the investigating authorities, who completed their investigation in the meantime. The trial of the applicant’s case lasted for almost a year. Although there could have existed relevant and sufficient grounds for the applicant’s detention at some stages of the proceedings, the domestic authorities failed to provide relevant and specific justification for the continued application of the measure of restraint, coupled with the lack of diligence on their part.

4,700

37006/17

12/05/2017

Aleksandr Valeryevich KORNEV

1987

04/02/2015 to

30/07/2018

Kirovskiy District Court of Ufa,

Supreme Court of Bashkortostan Republic,

Privolzhskiy Military District Court

3 year(s) and 5 month(s) and 27 day(s)

Collective detention orders.

The applicant’s detention pending the examination of the case file lasted for almost a year. The Government did not argue that the prolonged period of the applicant’s examination of the case file in his case was due to any objective reasons (such as the volume of the case file). Neither did the domestic courts examine whether there had been any delays attributable to the investigating authorities. There were no attempts on the part of the domestic authorities to speed up the applicant’s examination of the case file by making new arrangements. Moreover, the protracted length of that examination process evidently benefited the investigating authorities, who completed their investigation in the meantime. The trial of the applicant’s case lasted for almost a year. Although there could have existed relevant and sufficient grounds for the applicant’s detention at some stages of the proceedings, the domestic authorities failed to provide relevant and specific justification for the continued application of the measure of restraint, coupled with the lack of diligence on their part.

4,700

38207/17

04/05/2017

Artem Mikhaylovich ZYULIN

1981

02/12/2014 to

05/05/2017

Sovetskiy District Court of Kazan,

Supreme Court of the Tatarstan Republic

2 year(s) and 5 month(s) and 4 day(s)

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to conduct the proceedings with due diligence during the period of detention.

3,400

62452/17

07/08/2017

Timur Nikolayevich MALYGIN

1996

12/04/2015 to

03/10/2017

Sovetskiy District Court of Kazan;

Supreme Court of the Tatarstan Republic

2 year(s) and 5 month(s) and 22 day(s)

Collective detention orders; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding.

3,400

65217/17

23/08/2017

Givi Borisovich DZHAGMAIDZE

1979

17/03/2017

to

20/11/2019

Georgiyevsk Town Court;

Stavropol Regional Court

2 year(s) and 8 month(s) and 4 day(s)

As the case progressed, use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention.

3,800

69128/17

21/08/2017

Denis Sergeyevich KHOROBRYKH

1987

22/01/2015 to

03/10/2017

Sovetskiy District Court of Kazan;

Supreme Court of the Tatarstan Republic

2 year(s) and 8 month(s) and 12day(s)

Collective detention orders; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding.

Art. 3 - use of metal cages and/or other security arrangements in courtrooms - Sovetskiy District Court of Kazan during the criminal proceedings against the applicant,

Art. 13 - lack of any effective remedy in domestic law in respect of the complaint about the placement in a metal cage

9,750

24901/18

24/04/2018

Rafis Ravilevich NASYBULLIN

1980

22/11/2016 to

19/02/2019

Sovetskiy District Court of Kazan;

Supreme Court of the Tatarstan Republic

2 year(s) and 2 month(s) and 29 day(s)

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; “white-collar” crime; failure to examine the possibility of applying other measures of restraint.

Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention - The applicant was not provided with legal assistance at the appellate hearing against the detention order on 02/03/2018 (Svipsta v. Latvia no. 66820/01, 9 March 2006, § 129)

3,500

[1] Plus any tax that may be chargeable to the applicants.

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