CASE OF DIGAY AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF DIGAY AND OTHERS v. RUSSIA

(Applications nos. 34645/17 and 8 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 Digay 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 As concerns applications nos. 2974/18 and 3654/18, the Court would like to stress that these are the second applications lodged by Mr Yurtayev and Mr Kamenev, respectively, concerning the same lengthy detention on remand. The Court has already found a violation of Article 5 § 3 of the Convention, on account of their on-going unreasonably long detention on remand, in respect of the first application (no. 47013/16) lodged by Mr Yurtayev on 12 July 2016 (see Belyayev and others v Russia [Committee], nos. 49132/10 and 5 others, 9 November 2017) and in respect of the first application (no. 11743/16) lodged by Mr Kamenev on 16  February 2016 (see Shirokikh and others v Russia [Committee], nos. 30532/07 and 6 others, 6 July 2017). Following those judgments by the Court, the two applicants remained in detention pending trial proceedings against them until their conviction on 18 December 2017. In December 2017, which is within six months from the final order authorising the extension of their detention on remand, the applicants lodged the present applications with the Court (for further details see the appended table below).

9.  The Government did not make any observations in this respect. The Court reiterates that in principle there is nothing to prevent the Court from examining a subsequent application raising a new issue undecided by the original judgment (see Mehemi v. France (no. 2), no. 53470/99, § 43, ECHR 2003-IV; Pailot v. France, 22 April 1998, § 57, Reports of Judgments and Decisions 1998-II; Leterme v. France, 29 April 1998, Reports 1998-III; and Rando v. Italy, no. 38498/97, 15 February 2000).

10.  In the specific context of a continuing violation of a Convention right following adoption of a judgment in which the Court found a violation of that right during a certain period, it is not unusual for the Court to examine a second application concerning a violation of the same right during the subsequent period (see Wasserman v. Russia (no. 2), no. 21071/05, § 33, 10 April 2008, with further references).

11.  The Court observes that the first applications lodged by the two applicants (cited above) concerned their excessively long detention on remand. When the Court delivered its judgments on 6 July and 9 November  2017, finding a violation of Article 5 § 3 of the Convention and making an award in respect of the period preceding its judgments, the applicants were still in detention on remand.

12.  The present applications, which the applicants lodged in December 2017, concern their continuous detention on remand in the period subsequent to the Court’s judgments of 6 July and 9 November 2017.

13.  The Court acknowledges that it has no jurisdiction to review the measures adopted in the domestic legal order to put an end to the violations found in its judgment in the first cases brought by the applicants. It may, nevertheless, take stock of subsequent factual developments. In this respect, the Court observes that the applicants continued to be detained for another month and a half and five months, respectively, after the Court had delivered its judgment in those cases (see, mutatis mutandis, Wasserman (no. 2), cited above, § 36).

14.  It follows that, in so far as the applicants’ complaint concerns the further period during which they continued to be detained on remand allegedly in the absence of proper reasons therefor, it has not been previously examined by the Court. The Court therefore has competence ratione materiae and ratione personae to entertain this complaint.

15.  Moreover, when assessing the reasonableness of the remaining period between the delivery of the Court’s judgments (see paragraph 8 above) and the end of the applicants’ detention on remand for the purposes of Article 5 § 3 of the Convention, the Court “can take into consideration the fact that an applicant has previously spent time in custody pending trial” (see Idalov v. Russia [GC], no. 5826/03, § 130, 22 May 2012; for similar approach by the Court see Kolosyuk and Others v. Russia [Committee], nos. 45162/13 and 4 others, 14 June 2018).

16.  As concerns all of the applications in the present case, the Court notes that in the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, it already found a violation in respect of issues similar to those in the present case.

17.  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 rejects the Government’s objections made to the present applications and considers that in the instant case the length of the applicants’ pre-trial detention was excessive.

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

19.  In applications nos. 34645/17, 46226/17 and 61310/17, the applicants also raised other complaints under various Articles of the Convention.

20.  The Court has examined these 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.

 APPLICATION OF ARTICLE 41 OF THE CONVENTION

21.  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.”

22.  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. It dismisses the remainder of the claims for just satisfaction submitted by the applicant in application no. 61310/17.

23.  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;Declares the complaints concerning the excessive length of pre-trial detention admissible, and the remainder of applications nos. 34645/17, 46226/17 and 61310/17 inadmissible;Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;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 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.Dismisses the remainder of claims for just satisfaction lodged by the applicant in application no. 61310/17.

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

Application 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

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

(in euros)[i]   

34645/17

06/04/2017

Nataliya Sergeyevna Digay

19/02/1980

Pyatitskiy Yevgeniy Fedorovich

Rostov-na-Donu

08/04/2016

Pending

Leninskiy District Court of Rostov-on-Don; Rostov Regional Court

More than 3 year(s) and 6 month(s) and 9 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; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention.

4,800   

46226/17

09/06/2017

Oksana Pavlovna Murashova

29/08/1974

Yershova Yelena Viktorovna

Moscow

31/08/2016

Pending

Presnenskiy District Court of Moscow;

Zamoskvoretskiy District Court of Moscow;

Moscow City Court

More than 3 year(s) and 1 month(s) and 17 day(s)

Collective detention orders; 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.

4,200   

61310/17

11/08/2017

Aleksandr Yevgenyevich Abrosimov

23/09/1985

17/03/2016

to

10/12/2017

Tsentralnyy District Court of Volgograd; Traktorozavdskiy District Court of Volgograd; Volgograd Regional Court

1 year(s) and 8 month(s) and 24 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; failure to conduct the proceedings with due diligence during the period of detention.

2,500   

74561/17

12/10/2017

Mikhail Dmitriyevich Popov

02/03/1988

Druzhkova Olga Vladimirovna

Moscow

29/01/2017

to

03/10/2018

Prigorodnyy District Court of the Nothern Osetiya-Alaniya Republic;

Supreme Court of the Northern Osetiya-Alaniya Republic

1 year(s) and 8 month(s) and 5 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; 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.

2,500   

79072/17

01/11/2017

Aleksandr Vladimirovich Khachemizov

10/05/1978

01/03/2012

Pending

Supreme Court of the Republic of Komi

More than 7 year(s) and 7 month(s) and 16 day(s)

Collective detention orders; failure to conduct the proceedings with due diligence during the period of detention; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed.

10,100   

2974/18

22/12/2017

Aleksey Aleksandrovich Yurtayev

25/07/1975

24/09/2013

to

18/12/2017

Yelabuga Town Court of the Tatarstan Republic; Supreme Court of the Tatarstan Republic

4 year(s) and 2 month(s) and 25 day(s)

By final judgment of 09/11/2017 the Court already found a violation of Article 5 § 3 of the Convention in respect of the applicant’s detention within the same set of the criminal proceedings. Starting from his arrest and

following the Court’s judgment of 09/11/2017 the applicant continued being detained on remand with his detention regularly extended until his conviction (see §§ 9-15 above). Collective detention orders; 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 as the case progressed; failure to conduct the proceedings with due diligence during the period of detention.

150   

3654/18

21/12/2017

Yevgeniy Aleksandrovich Kamenev

21/04/1975

28/02/2014

to

18/12/2017

Yelabuga Town Court of the Tatarstan Republic; Supreme Court of the Tatarstan Republic

3 year(s) and 9 month(s) and 21 day(s)

By final judgment of 06/07/2017 the Court already found a violation of Article 5 § 3 of the Convention in respect of the applicant’s detention within the same set of the criminal proceedings. Starting from his arrest and

following the Court’s judgment of 06/07/2017 the applicant continued being detained on remand with his detention regularly extended until his conviction (see

§§ 9-15 above). Collective detention orders; failure to conduct the proceedings with due diligence during the period of detention; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice as the case progressed; fragility of the reasons employed by the courts; failure to examine the possibility of applying other measures of restraint.

900   

21502/18

11/04/2018

Andrey Vissarionovich Sanukov

22/08/1978

20/01/2016

Pending

Privolzhskiy District Court of Kazan;

Supreme Court of the Tatarstan Republic

More than 3 year(s) and 8 month(s) and 27 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.

5,100   

23815/18

16/05/2018

Vitaliy Aleksandrovich Fabryy

12/07/1977

15/02/2017

Pending

Leninskiy District Court of Rostov-on-Don; Rostov Regional Court

More than 2 year(s) and 8 month(s) and 2 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.

3,800

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

Full & Egal Universal Law Academy