CASE OF BOROVTSOV AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF BOROVTSOV AND OTHERS v. RUSSIA

(Applications nos. 79494/17 and 9 others -

see appended list)

JUDGMENT

STRASBOURG

16 January 2020

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

In the case of Borovtsov and Others v. Russia,

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

Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 12 December 2019,

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 LAWJOINDER 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.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.COMPLAINTS UNDER ARTICLES 3 AND 13 OF THE CONVENTION IN APPLICATIONS Nos. 1917/18, 2266/18, 15281/18 AND 19326/18 concerning conditions of detention or transport

11.  The applicants in applications nos. 1917/18, 2266/18, 15281/18 and 19326/18 also complained under Articles 3 and 13 of the Convention about poor conditions of their detention or transport, as well as argued that they did not have an effective domestic remedy to complain about those conditions.

12.  The Government submitted declarations with a view to resolving the issues raised by these complaints. They acknowledged the inadequate conditions of detention and, for application no. 15281/18 also the conditions of transport. They further acknowledged that the applicants did not have an effective domestic remedy in violation of Article 13 of the Convention in respect of those complaints. They offered to pay the applicants the following amounts:

Application no.

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant under the terms of the unilateral declaration

(euros)

1917/18

15,000

2266/18

7,250

15281/18

8,725

19326/18

10,125

13.  The Government invited the Court to strike the applications, in these parts, out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amounts would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay these amounts within the above‑mentioned three-month period, the Government undertook to pay simple interest on them, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The payment will constitute the final resolution of the cases.

14.  The applicants informed the Court that they agreed to the terms of the declarations.

15.  The Court finds that, following the applicants’ express agreement to the terms of the declarations made by the Government, the cases should be treated as a friendly settlement between the parties.

16.  It therefore takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and the Protocols thereto and finds no reasons to justify the continued examination of the applications in the part concerning the complaints covered by the Government’s unilateral declarations.

17.  In view of the above, it is appropriate to strike the cases out of the list as regards the complaints insofar as covered by the unilateral declarations, concerning the inadequate conditions of detention, and for application no. 15281/18, conditions of transport, and the related complaints under Article 13 of the Convention.OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

18.  In applications nos. 15281/18 and 37551/18 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 Idalov v. Russia [GC], no. 5826/03, 22 May 2012, as regards the lack of speedy review of detention matters; Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts), related to the use of metal cages as a security arrangement in courtrooms; and Govorushko v. Russia, no. 42940/06, §§ 57-61, 25 October 2007, concerning an enforceable right to compensation for detention which has been found to be in violation of Article 5 § 3 of the Convention.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  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.”

20.  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), as well to the sums of the awards offered to some of the applicants by the Government by way of unilateral declaration (see paragraphs 11-17 above), the Court considers it reasonable to award the sums indicated in the appended table for the violations found.

21.  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,Decides to join the applications;Decides to strike applications nos. 1917/18, 2266/18, 15281/18 and 19326/18 out of its list of cases in accordance with Article 39 of the Convention as regards the complaints concerning the inadequate conditions of detention and transport, insofar as covered by the unilateral declarations, and the complaints under Article 13 about the lack of effective remedies to complain about poor conditions of detention and transport;Declares the remainder of applications admissible;Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;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);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 16 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv TigerstedtAlena Poláčková

Acting Deputy RegistrarPresident

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’s name

Date of birth

Representative’s name and location

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)[i]   

79494/17

23/10/2017

Vasiliy Petrovich BOROVTSOV

19/11/1975

05/08/2017 to

29/08/2019

Tsentralnyy District Court of Volgograd; Volzhsk Town Court of the Volgograd Region; Volgograd Regional Court

2 year(s) and 25 day(s)

fragility of the reasons employed by the courts;

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;

2,700   

1917/18

13/12/2017

Vladimir Aleksandrovich PANTELEYEV

26/07/1980

26/03/2013 to

25/10/2018

St Petersburg City Court

5 year(s) and 7 month(s)

fragility of the reasons employed by the courts;

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;

5,500

2266/18

05/12/2017

Vadim Aleksandrovich KLYUYEV

22/04/1981

Stasyuk Olga Andreyevna

St Petersburg

15/09/2015 to

05/06/2017

Primorskiy District Court of St Petersburg;

St Petersburg City Court

1 year(s) and 8 month(s) and 22 day(s)

fragility of the reasons employed by the courts;

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;

2,500   

15281/18

18/03/2018

Sergey Vitalyevich KLIMENKO

01/07/1990

Golub Olga Viktorovna

Suzemka

01/04/2017 to

04/10/2018

Nagatinskiy District Court of Moscow; Moscow City Court

1 year(s) and

6 month(s) and 4 day(s)

fragility of the reasons employed by the courts;

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;

Art. 5 (4) - excessive length of judicial review of detention - Appeal decision of 25/10/2017 upholding the detention order of 25/09/2017,

Art. 3 - use of metal cages and/or other security arrangements in courtrooms - placement in metal cages during appeal detention hearings on 11/09/2017 and 25/10/2017

4,000   

19326/18

10/04/2018

Timur Ildarovich AYGENIN

10/01/1981

Prorekhina Irina Konstantinovna

Moscow

19/09/2017 to

18/12/2018

Basmannyy District Court of Moscow; Izmaylovskiy District Court of Moscow; Moscow City Court

1 year(s) and 3 month(s)

fragility of the reasons employed by the courts;

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; collective detention orders;

500   

29229/18

13/06/2018

Dmitriy Sergeyevich ZAYTSEV

30/08/1978

Mazitov Marat Farukovich

Moscow

13/10/2015 to

28/03/2019

Moscow City Court

3 year(s) and 5 month(s) and 16 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; failure to examine the possibility of applying other measures of restraint

4,700   

30804/18

06/06/2018

Aleksandr Aleksandrovich KOTOVSKIY

05/10/1988

18/05/2016 to

06/06/2019

Supreme Court of the Tatarstan Republic

3 year(s) and 20 day(s)

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 when the case progressed;

failure to conduct the proceedings with due diligence during the period of detention;

4,000   

36217/18

12/07/2018

Valentin Vitalyevich POTUPOV

12/09/1992

26/01/2016 to

05/06/2019

Naberezhnye Chelny Town Court;

Supreme Court of the Republic of Tatarstan

3 year(s) and 4 month(s) and 11 day(s)

fragility of the reasons employed by the courts;

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 conduct the proceedings with due diligence during the period of detention

4,600   

37551/18

26/07/2018

Andrey Gennadyevich PAVLOV

19/06/1980

Kuliyev Elnur Ilgarovich

Samara

08/12/2017 to

07/02/2018

20/02/2018 to

08/06/2018

Samarsky District Court of Samara;

Samara Regional Court

2 month(s)

3 month(s) and 20 day(s)

fragility of the reasons employed by the courts;

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice

Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention - in relation to the applicant’s complaint under Article 5 § 3 of the Convention

1,700 

43157/18

23/08/2018

Artem Georgiyevich ABABIY

25/07/1994

19/03/2017 to

22/08/2018

Supreme Court of the Republic of Tatarstan; Vakhitovsky District Court of Kazan

1 year(s) and 5 month(s) and 4 day(s)

fragility of the reasons employed by the courts;

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 conduct the proceedings with due diligence during the period of detention;

2,100

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

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