European Court of Human Rights

 

 

THIRD SECTION

CASE OF MAKARENKO AND OTHERS v. RUSSIA

(Applications nos. 7118/18 and 10 others –

see appended list)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

20 May 2021

 

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

In the case of Makarenko 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 Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 22 April 2021,

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 the applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the deficiencies in proceedings for review of the lawfulness of 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 § 4 of the Convention

6.  The applicants complained principally of the deficiencies in the proceedings for review of the lawfulness of detention. In particular, they alleged that the appeals against the detention orders had not been decided “speedily”. One of the applicants (application no. 35431/18) complained that his application for release had been dismissed without consideration. The applicants relied, expressly or in substance, on Article 5 § 4 of the Convention, which reads as follows:

Article 5 § 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.”

7.  The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and the ordering of its termination if it proves unlawful (see Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000-III). Where an individual’s personal liberty is at stake, the Court has very strict standards concerning the State’s compliance with the requirement of speedy review of the lawfulness of detention (see, for example, Kadem v. Malta, no. 55263/00, §§ 44-45, 9 January 2003, where the Court considered a time‑period of seventeen days in deciding on the lawfulness of the applicant’s detention to be excessive, and Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter alia, twenty-six days, was found to be in breach of the “speediness” requirement of Article 5 § 4).

8.  In the leading cases of Idalov v. Russia [GC], no. 5826/03, §§ 152-58, 22 May 2012, and Khodorkovskiy v. Russia, no. 5829/04, §§ 237-41, 31 May 2011, the Court already found a violation in respect of the 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 appeal proceedings for the review of the lawfulness of the applicants’ pre-trial detention cannot be considered compatible with the requirements set out in Article 5 § 4 of the Convention.

10.  These complaints are therefore admissible and disclose a breach of Article 5 § 4 of the Convention.

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

11.  In application no. 14756/19 the applicant submitted other complaints which also raised issues under the Convention (see the 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 well-established case-law (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts), and Idalov, cited above, concerning the use of metal cages during court hearings, conditions of detention during transport and lack of any effective remedy in this regard).

IV.  REMAINING COMPLAINTS

12.  In applications nos. 9564/18 and 14756/19 the applicants also complained about the length of pre-trial detention under Article 5 § 3 of the Convention.

13.  The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

V.    APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  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.”

15.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Oravec v. Croatia, no. 51249/11, §§ 78-80, 11 July 2017, Ayboğa and Others v. Turkey, no. 35302/08, §§ 28-30, 21 June 2016, Doherty v. the United Kingdom, no. 76874/11, §§ 113-115, 18 February 2016, Albrechtas v. Lithuania, no. 1886/06, §§ 87-89, 19 January 2016 and Karaosmanoglu and Özden v. Turkey, no. 4807/08, §§ 89-91, 17 June 2014), the Court considers it reasonable to award the sums indicated in the appended table.

16.  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 deficiencies in the proceedings for review of the lawfulness of detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of applications nos. 9564/18 and 14756/19 inadmissible;

3.      Holds that these complaints disclose a breach of Article 5 § 4 of the Convention concerning the deficiencies in proceedings for review of the lawfulness of 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 the appended table);

5.      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 20 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                                                            Darian Pavli
Acting Deputy Registrar                                                            President

 

                                                                                    

 

APPENDIX

List of applications raising complaints under Article 5 § 4 of the Convention

(deficiencies in proceedings for review of the lawfulness of detention)