European Court of Human Rights

 

 

THIRD SECTION

CASE OF SHCHEPETOV v. RUSSIA

(Application no. 34635/17)

 

 

 

 

JUDGMENT

STRASBOURG

7 December 2021

 

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

In the case of Shchepetov v. Russia,

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

          Peeter Roosma, President,
          Dmitry Dedov,
          Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 34635/17) 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”) on 28 April 2017 by a Russian national, Mr Grigoriy Vasilyevich Shchepetov, born in 1989 and detained in Naberezhnyye Chelny (“the applicant”);

the decision to give notice of the complaints concerning the allegedly excessive length of the applicant’s pre-trial detention and the restrictions on family visits to the Russian Government (“the Government”), represented by Mr M. Galperin, the then Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office to the European Court of Human Rights, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 16 November 2021,

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

SUBJECT-MATTER OF THE CASE

1.  The present case concerns the allegedly excessive length of the applicant’s pre-trial detention and the restrictions on family visits.

2.  On 7 March 2013, the applicant was arrested on suspicion of drug trafficking. His pre-trial detention was regularly extended by domestic courts.

3.  On 30 June 2015 the Naberezhnye Chelny Town Court convicted the applicant and sentenced him to a term of imprisonment.

4.  On 10 February 2016, the Supreme Court of the Republic of Tatarstan quashed the judgement of 30 June 2015 on appeal and remitted the case to the first instance court for a fresh examination. The appeal instance ordered that the applicant be remanded in custody.

5.  The applicant’s detention pending new trial was extended by orders of the Naberezhnye Chelny Town Court of 26 April, 8 and 26 August, 29 November 2016, 28 February, 26 May, 22 June, 19 July, 14 September, 21 December 2017, 13 March and 9 June 2018.

6.  On 21 March 2017, 30 March and 29 June 2018 respectively, the Supreme Court of the Republic of Tatarstan upheld detention orders of 28 February 2017, 13 March and 9 June 2018 on appeal. The appeal instance indicated that the lower court had correctly referred to the gravity of the charges against the applicant and the risk of his absconding or interfering with the administration of justice as the factors that militated in favour of maintaining the applicant in pre-trial detention.

7.  On 7 August 2018, the Naberezhnye Chelny Town Court convicted the applicant and sentenced him to a term of imprisonment.

8.  During his detention in the remand prison, the applicant received family visits on 14 March 2014, 23 July, 20 August, 29 September, 21 October, 28 November, 30 December 2015, 29 January and 4 March 2016. It follows from the documents submitted to the Court that the applicant was visited by his parents and by another relative whose family relationship was not specified by the parties.

THE COURT’S ASSESSMENT

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

9.  The Court notes that the applicant’s pre-trial detention was broken into two non-consecutive periods: from 7 March 2013 to 30 June 2015, when he was detained pending the first trial, and from 10 February 2016 to 7 August 2018, when he was detained pending the second trial. The six‑month rule should be applied, separately, to each period of the pre-trial detention (see Idalov v. Russia [GC], no. 5826/03, §§ 127‑133, 22 May 2012). The Court considers therefore that, in so far as the applicant’s complaint concerns the period from 7 March 2013 to 30 June 2015, it should be declared inadmissible as being lodged out of time.

10.  The Court observes that the applicant introduced his application on 28 April 2017 while the second period of his pre-trial detention was ongoing. Contrary to the Government’ argument, the Court finds that the applicant appealed against the detention order of 28 February 2017 and that his appeal was rejected on 21 March 2017. Thus, the Government’s non‑exhaustion plea must be rejected.

11.  Therefore, the Court is competent to examine the period of the applicant’s pre-trial detention between 10 February 2016 and 7 August 2018.

12.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

13.  The general principles concerning the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention have been summarized in 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).

14.  In the present case, the applicant’s detention during the second trial amounted to two years and six months. When extending the applicant’s detention, the domestic courts consistently relied on the gravity of the charges and the likelihood that the applicant would abscond or obstruct justice.

15.  In the leading cases of Dirdizov v. Russia (no. 41461/10, 27 November 2012) and Zherebin v. Russia (no. 51445/09, 24 March 2016), the Court already found a violation in respect of issues similar to those in the present case.

16.  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 merits of this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicant’s pre-trial detention was excessive.

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

II.      REMAINING COMPLAINTS

18.  The applicant complained under Article 8 of the Convention that he was refused visits from members of his family and that during the visits he obtained he was unable to have physical contact with them because of a glass partition. He also complained about the impossibility to have long‑term visits from his partner and to conceive a child with her.

19.  The Court notes that the restrictions on family visits and special security arrangements during such visits were embedded in the applicable laws and regulations which governed the applicant’s situation throughout his detention in the remand prison so long as he was a defendant in criminal proceedings. In the absence of any effective remedy to complain about separation by a glass partition during family visits, the applicant should have brought this complaint to the Court at a time when such restrictions were still affecting him or at the latest within six months of their cessation (see Chaldayev, no. 33172/16, §§ 54-56, 28 May 2019).

20.  The Court notes that the applicant obtained his last family visit on 4 March 2016 and that he did not request other family visits after that date. The Court considers therefore that the situation complained of, i.e. the impossibility to have physical contact with his relatives during family visits, ceased to exist on 4 March 2016 and that the applicant should have introduced his complaint within six months after that date. Having introduced his application on 28 April 2017, he did not comply with the Convention time‑limit for lodging the complaint.

21.  It follows that this part of the application is belated and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

22.  The Court has found, in the context of lifelong imprisonment, that, where an applicant alleges a breach of the right to respect for private and family life on account of statutory restrictions on visits from family members or other persons, he should demonstrate at least that he has relatives or other persons with whom he genuinely wishes and attempts to maintain contact in detention: the applicant should specify them and provide an account of their attempted or actual visits (see Chernenko and Others v. Russia (dec.), nos. 4246/14 and 4 others, § 45, 5 February 2019). The Court finds that this approach applies equally to the applicant’s complaint about the impossibility to obtain a long-term visit from his partner and to conceive a child with her.

23.  The Court notes in this regard that the applicant failed to specify the name of his partner and to provide any other details about her. Nothing in the case file demonstrates that the applicant’s alleged partner made genuine attempts to maintain contact with him or attempted to obtain at least short‑term visits. In the absence of such evidence, the Court concludes that the applicant cannot be said to have been directly affected by the measure complained of and that he cannot claim to be a victim of the alleged violation of Article 8 of the Convention.

24.  It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must therefore be rejected pursuant to Article 35 § 4.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage

26.  The Government stated that Article 41 should be applied in accordance with the Court’s case-law.

27.  The Court awards the applicant EUR 2,600 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

28.  The Court further 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 reasonableness of the length of the applicant’s detention between 10 February 2016 and 7 August 2018 admissible and the remainder of the application inadmissible;

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 the applicant, within three months, EUR 2,600 (two thousand six hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(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 7 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                          Peeter Roosma
Deputy Registrar                                                                President