THIRD SECTION
CASE OF FEDORIN v. RUSSIA
(Application no. 9536/10)
JUDGMENT
STRASBOURG
15 November 2016
This judgment is final but it may be subject to editorial revision.
In the case of Fedorin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 18 October 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 9536/10) 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”) by a Russian national, Mr Dmitriy Vladimirovich Fedorin (“the applicant”), on 28 December 2009.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.
3. On 3 June 2015 the complaints about an allegedly unlawful and excessively long detention in inhuman conditions and about the absence of the applicant and his counsel from two appeal hearings were communicated to the Government, and the remainder of the application was declared inadmissible.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1980 and lives in Samara.
5. At about 8.35 p.m. on 14 October 2009 the applicant was apprehended by officers of the Federal Service for Drug Control (ФСKН, “the drugs police”) during a test purchase of drugs from him. According to the applicant, he was brought to their premises at around 11 p.m. His account was corroborated by two drug police officers and two attesting witnesses. An arrest record was not compiled. Furthermore, at around 2 a.m. on the following day he was put in a cell that had not bed or stool, light, lavatory or running water, and was smeared with dirt and faeces. During his detention he had not been provided with food or drink, or permitted to use the toilet, but had had to urinate in a plastic bottle. At 6.30 p.m. a criminal case was instituted against the applicant, and thirty minutes later an investigator drew the arrest record, thus formally remanding the applicant in custody. At 11.55 p.m. on the same day he was transferred to a temporary detention centre.
6. On 16 October 2009 the Oktyabrskiy District Court of Samara remanded the applicant in custody. In particular, the court mentioned the following arguments: seriousness and nature of charges; previous conviction not being expunged; absence of “regular source of income”; hence possibility of continuing criminal activities or absconding or obstructing justice in any other manner. The applicant did not appeal.
7. On 11 December 2009 the District Court extended the applicant’s detention until 15 January 2010 finding that the grounds on which the preventive measure had previously been imposed still persisted and there was no reason to vary the preventive measure. Additionally, the court mentioned that the applicant had permanent place of residence and employment but it further stated that the applicant “did not have a regular source of income”.
8. On 22 December 2009 the Samara Regional Court dismissed the applicant’s appeal, endorsing the reasoning of the district court. The prosecutor was present at the appeal hearing unlike both the applicant and his counsel.
9. On 12 February 2010 the Kuybyshevskiy District Court of Samara found the applicant guilty of selling large quantities of narcotics and sentenced him to eight years’ imprisonment in a strict-security institution.
10. On 4 May 2010 the Samara Regional Court upheld the conviction. The prosecutor was present at the appeal hearing whereas both the applicant and his counsel were absent.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
11. The applicant complained that the conditions of his detention in the drugs police premises had been in breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
12. The Government did not comment on this complaint.
A. Admissibility
13. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
14. Since the Government did not submit any information capable of corroborating or refuting the applicant’s allegations, the Court will examine the issue concerning the conditions of detention on the basis of the applicant’s submissions.
15. The applicant submitted that he had been held for roughly twenty‑two hours in a dirty cell that lacked the basic amenities indispensable for detention. Nor was he provided with food or drink. The Court recalls that, regardless the relative brevity of the detention, it considers unacceptable for a person to be detained in conditions in which no provision has been made for meeting his basic needs (see, among other authorities, Fedotov v. Russia, no. 5140/02, §§ 66-70, 25 October 2005).
16. There has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
17. The applicant complained under Article 5 § 1 of the Convention that his detention had been unlawful from 14 to 15 October 2009. The relevant part of Article 5 reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save ... in accordance with a procedure prescribed by law ...”
18. The Government submitted that the applicant had been arrested immediately after the test purchase on 14 October 2009. The arrest record had been drafted on the following day, just thirty minutes after the institution of the criminal proceedings.
19. The applicant submitted that he had been arrested on 14 October 2009.
A. Admissibility
20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
21. The Court recalls from the outset that in a number of cases against Russia it has already found a violation of Article 5 § 1 of the Convention on account of the fact that the arrest record had not been drawn up immediately after the arrest (see, for example, Aleksandr Sokolov v. Russia, no. 20364/05, §§ 68-73, 4 November 2010; Ivan Kuzmin v. Russia, no. 30271/03, §§ 81-84, 25 November 2010; and Rakhimberdiyev v. Russia, no. 47837/06, §§ 30-37, 18 September 2014).
22. The Government did not deny that the applicant’s initial arrest had been formalised one day later. The Court also takes into account the statements made by the drug police officers and the attesting witnesses who corroborated the applicant’s allegations.
23. The Court thus finds that the applicant’s detention from 14 to 15 October 2009 was not “in accordance with a procedure prescribed by law” and was therefore incompatible with Article 5 § 1 of the Convention. Accordingly, there has been a violation of this provision.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
24. The applicant further complained of the fact that he had been denied the right to trial within a reasonable time or to release pending trial, in breach of Article 5 § 3 of the Convention, which provides:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
25. The Government submitted that the applicant had been detained on remand within statutory time-limits. The record of interrogation and the arrest record, both signed by the applicant, revealed that the applicant was unemployed, and it was not until the trial that he orally stated that he had a job. When remanding the applicant and extending his pre-trial detention, the courts duly assessed all the evidence, in particular, his previous convictions of serious crimes including an unexpunged one for drug possession and the fact that he was not married and did not have children.
26. The applicant retorted that he had not been previously convicted of drug trafficking, rather drug possession.
A. Admissibility
27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
28. The applicant was arrested on 14 October 2009 and convicted on 12 February 2010. The period to be taken into consideration is therefore slightly less than four months.
29. The Court notes that the applicant’s initial detention was warranted by a reasonable suspicion that he had committed drug trafficking. It remains to be ascertained whether the judicial authorities gave another “relevant” and “sufficient” grounds to justify his detention and whether they displayed “special diligence” in the conduct of the proceedings (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 102, 5 July 2016).
30. The seriousness of the charges was one of the factors for assessing the applicant’s potential to abscond, reoffend or obstruct the course of justice (see paragraphs 6, 7 and 8 above). However, the Court has repeatedly held that, although the severity of the sentence faced is a relevant element in assessing the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence (see Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005‑X (extracts); and Chumakov v. Russia, no. 41794/04, § 159, 24 April 2012). The Court will therefore examine whether the other grounds referred to by the domestic courts were sufficient to justify the applicant’s detention.
31. The Court observes that the Russian courts attached particular weight to the risk of applicant’s absconding and re-offending. The assessment of that risk was based on his previous criminal record, lack of employment or family attachments. In these circumstances, the findings by the domestic courts that the applicant was likely to abscond or to re-offend do not appear unreasonable. Even though the applicant’s lack of employment or social ties could not, on their own, warrant his detention, but they were capable of adding weight to the finding that he posed a flight risk.
32. As to the authorities’ “special diligence” in the conduct of the proceedings, the Court notes that the applicant was held in detention on remand for less than four months. There is nothing in the material submitted to show any significant period of inactivity on the part of the prosecution or the court. In such circumstances, the Court concludes that the competent domestic authorities displayed special diligence in handling the applicant’s case.
33. There has accordingly been no violation of Article 5 § 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
34. The applicant further complained that both him and his counsel were absent from the appeal hearing on 22 December 2009 in which his detention on remand was extended. He relied on Article 5 § 4 of the Convention, which provides:
“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.”
35. The Government acknowledged the violation.
36. The applicant took note of the Government’s admission.
A. Admissibility
37. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
38. As the Court has pointed out on many occasions, the absence of either the applicant or his lawyer, or both, from the appeal hearing entails a violation of Article 5 § 4 of the Convention (see, among other authorities, Idalov v. Russia [GC], no. 5826/03, §§ 161-64, 22 May 2012, and Pyatkov v. Russia, no. 61767/08, §§ 128-33, 13 November 2012).
39. Turning to the circumstances of the present case, the Court observes that both the applicant and his counsel were absent from the appeal hearing on 22 December 2009.
40. Having regard to its established case-law on the issue and the circumstances of the present case, the Court does not see any reason to hold otherwise. There has thus been a violation of Article 5 § 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
41. Lastly, the applicant complained that his right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the domestic court’s failure to ensure his and or his counsel’s participation in the appeal hearing on 4 May 2010. The relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
42. The Government acknowledged the violation.
43. The applicant took note of the Government’s admission.
A. Admissibility
44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
45. The Court has found that, in Russian legal system, the absence of the applicant alone, or together with his counsel, from an appeal hearing breached the principle of equality of arms (see, for example, Sibgatullin v. Russia, no. 32165/02, §§ 38-50, 23 April 2009; Sayd-Akhmed Zubayrayev v. Russia, no. 34653/04, §§ 27-33, 26 June 2012; and Kozlitin v. Russia, no. 17092/04, §§ 58-73, 14 November 2013).
46. In the present case the Court notes that the appeal hearing was held in the absence of the applicant and his counsel whereas the prosecutor was present in the courtroom and made oral submissions.
47. Having regard to the established case-law, the Court does not see any reason to hold otherwise. There has thus been a violation of Article 6 § 1 of the Convention on that account.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
48. 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.”
49. The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage.
50. The Government left the issue to the discretion of the Court.
51. Having regard to the violations it has found, the Court considers that the applicant must have suffered a certain amount of distress and frustration. However, the amount claimed appears to be excessive. Making its assessment on an equitable basis, the Court awards applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.
52. 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. Declares the application admissible;
2. Holds that there has been a violation of Article 3 of the Convention;
3. Holds that there has been a violation of Article 5 § 1 of the Convention;
4. Holds that there has been no violation of Article 5 § 3 of the Convention;
5. Holds that there has been a violation of Article 5 § 4 of the Convention;
6. Holds that there has been a violation of Article 6 § 1 of the Convention;
7. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven thousand five hundred euros) in respect of non‑pecuniary damage, 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;
(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;
8. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
Full & Egal Universal Law Academy