THIRD SECTION
CASE OF KOSYANOV v. RUSSIA
(Application no. 7955/07)
JUDGMENT
STRASBOURG
22 November 2016
This judgment is final but it may be subject to editorial revision.
In the case of Kosyanov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helena Jäderblom, President,
Dmitry Dedov,
Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 3 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 7955/07) 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 Aleksandr Fedorovich Kosyanov (“the applicant”), on 17 January 2007.
2. The applicant was represented by Ms T. Yurchenko, a lawyer practising in Rostov-on-Don. 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 16 December 2009 the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1967 and lived in Rostov-on-Don prior to his arrest.
5. On 30 March 2006 the applicant was arrested on suspicion of murder. By judgment of 16 May 2006, the Orlovskiy District Court of the Rostov Region found him guilty and sentenced him to seven years’ imprisonment. On 18 July 2006 the Rostov Regional Court upheld the conviction. The applicant and his counsel lodged an application for supervisory review of the conviction.
6. On 12 April 2007 the Presidium of the Regional Court, upon hearing the prosecutor, counsel for the applicant and for the injured party, quashed the conviction for formal defects and ordered a re-trial. The Presidium directed that the applicant should be held in custody, without citing grounds for the custodial measure or setting a time-limit for its application.
7. On 26 June 2007 the District Court held a preliminary hearing and fixed the trial date for 3 July. By the same decision, the court determined that the applicant should remain in custody because he was charged with a particularly serious offence and could pervert the course of justice if released. The applicant and his counsel filed an appeal against the extension order.
8. On 31 July 2007 the Regional Court examined the appeal in the absence of the applicant and his counsel. It annulled the detention order on the ground that the District Court had failed to set a time-limit for the applicant’s detention, in breach of the requirements of the Code of Criminal Procedure. It did not take any decision regarding the applicant’s further detention and referred the issue to the District Court for a new examination.
9. On 7 September 2007 the District Court extended the applicant’s pre‑trial detention for a period of six months starting from 28 April 2007 and lasting until 28 October 2007, referring to the gravity of the charges and the applicant’s new line of defence which, in the District Court’s view, was an indication that he might abscond. On 8 October 2007 the Regional Court rejected in a summary fashion the appeal against the extension order.
10. On 15 October 2007 the District Court extended the applicant’s detention until 28 December 2007, referring to the gravity of the charges and the flight risk. On 11 December 2007 the Regional Court upheld the detention order on appeal.
11. On 13 December 2007 the District Court examined the applicant’s request for release. Noting that the trial was approaching the final stage, that the witnesses had been heard, and that the applicant had family and dependent children, the court held that the applicant could be released on bail. The applicant was released the following day. On 5 February 2008 the Regional Court quashed the bail decision, holding that the District Court had not taken proper account of the gravity of the charges. On 20 February 2008 the District Court reconsidered the matter and held that the applicant should be re-detained for a further three months on account of the gravity of the charges against him. On 26 March 2008 the Regional Court upheld the detention order on appeal.
12. On 3 March 2008 the District Court found the applicant guilty of murder and sentenced him to five years’ imprisonment. On 23 April 2008 the Regional Court upheld the conviction.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
13. The applicant complained under Article 5 that the detention orders of 12 April and 26 June 2007 had not set a time-limit for his detention and that his detention between 31 July and 7 September 2007 had not been covered by a detention order. The Court will examine this complaint under Article 5 § 1 of the Convention which 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 ...”
A. Admissibility
14. The Government claimed that the applicant had not exhausted the domestic remedies because he had not filed a supervisory-review complaint against the detention order of 12 April 2007. The Court reiterates that an application for supervisory review in criminal proceedings has not been considered a remedy to be exhausted under Article 35 § 1 of the Convention (see Kashlan v. Russia (dec.), no. 60189/15, § 23, 19 April 2016). The Court therefore dismisses the Government’s objection and finds 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
15. The Government acknowledged that the detention orders of 12 April and 26 June 2007 had not set a time-limit for the applicant’s detention. The applicant maintained his complaint.
16. The Court notes that the Presidium’s decision of 12 April 2007 remanded the applicant in custody, without giving any reasons for that measure or setting a time-limit for the applicant’s continued detention. It has already found that a detention order that mentions no grounds or time-limit for the application of a custodial measure cannot afford the applicant the adequate protection from arbitrariness which is an essential element of the “lawfulness” of detention within the meaning of Article 5 § 1 of the Convention (see Khudoyorov v. Russia, no. 6847/02, §§ 136-37, ECHR 2005‑X (extracts), and Belevitskiy v. Russia, no. 72967/01, §§ 91-92, 1 March 2007). It follows that the decision of 12 April 2007 could not constitute a “lawful” basis for the applicant’s detention in the period from 12 April to 26 June 2007.
17. The applicant’s detention in the period after 26 June 2007 was based on a detention order that was later quashed on appeal because it did not specify a time-limit for the applicant’s detention. The appeal court considered that defect to be a serious breach of the domestic law. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof (see Khudoyorov, cited above, § 124). Since the Russian court acknowledged that the order had been defective under the domestic law, the Court considers that the failure to specify a time-limit amounted to a “gross and obvious irregularity” in the order rendering the ensuing period of the applicant’s detention unlawful (see Mooren v. Germany [GC], no. 11364/03, § 84, 9 July 2009).
18. Furthermore, the appeal decision of 31 July 2007 did not give any indication as to whether or not the applicant should remain in custody. However, he was not released. It appears that there was no valid domestic decision or other “lawful” basis for the applicant’s detention after that date and until a new examination of the detention matter took place on 7 September 2007. Accordingly, his detention in that period was also unlawful.
19. Finally, the Court reiterates that any ex post facto authorisation of detention on remand is not permissible under Russian law. Nor can it be compatible with the “right to security of person” as it is necessarily tainted with arbitrariness (see Khudoyorov, cited above, §§ 138-42). Accordingly, the Court cannot accept that the detention order of 7 September 2007, insofar as it authorised retrospectively the applicant’s detention in the preceding period, could alter its finding that his detention in that period had been unlawful.
20. There has accordingly been a violation of Article 5 § 1 of the Convention on account of the applicant’s unlawful detention from 12 April to 7 September 2007.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
21. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention was not based on relevant and sufficient reasons. Article 5 § 3 provides as follows:
“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.”
A. Admissibility
22. The Court considers 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
23. The Government submitted that the applicant’s detention had not been excessively long. The applicant maintained his complaint.
24. The Court notes that the period to be taken into consideration for the purposes of Article 5 § 3 of the Convention lasted for eight and a half months, from 12 April to 14 December 2007 and subsequently from 20 February to 3 March 2008.
25. The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the ground that the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges (see, among many others, Mamedova v. Russia, no. 7064/05, 1 June 2006; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012).
26. The Court notes that the domestic courts relied essentially on the gravity of the charges to keep the applicant in custody and that the gravity of the charges was also the main reason for revoking the bail decision. It finds that the reasons for extending the custodial measure cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.
27. There has accordingly been a violation of Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
28. The applicant complained under Article 5 § 4 of the Convention that the appeal hearings of 31 July and 8 October 2007 had been held without his being present or represented and that his appeals against the orders of 26 June 2007, 15 October 2007 and 20 February 2008 had not been considered “speedily”. Article 5 § 4 provides as follows:
“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.”
A. Admissibility
29. The Court observes that the applicant’s complaints about his absence from two appeal hearings and about the failure to consider “speedily” his appeal against the detention order of 15 October 2007 were first raised on 24 July 2008. In contrast to an objection as to the non-exhaustion of domestic remedies which must be raised by the respondent Government, the Court cannot set aside the application of the six-month rule solely because a government have not made a preliminary objection to that effect. Both appeal hearings had taken place in 2007 and the appeal court had rejected his appeal on 11 December 2007, that is to say, more than six months before the complaint about these events was lodged with the Court. 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.
30. As to the remainder of this complaint, the Court considers that it 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.
B. Merits
31. The Government claimed that the appeals had been examined within the thirty-day time-limit established in the domestic law which started to run from the date when the Regional Court received the case file.
32. 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 deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention (see Mamedova, cited above, § 89, with further references).
33. In the instant case, it took the Regional Court each time one month and five days to examine the appeals against the detention orders of 26 June 2007 and of 20 February 2008, which period cannot be considered compatible with the “speediness” requirement of Article 5 § 4 (see Mamedova, cited above, § 96).
34. There has therefore been a violation of Article 5 § 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
35. Lastly, the applicant complained of other violations of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the above complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. 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.”
37. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage and EUR 1,700 for legal costs.
38. The Government pointed out that the claim in respect of non‑pecuniary damage related to the grievances that fell outside the scope of the present case.
39. The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage and EUR 1,000 in respect of legal costs, plus any tax that may be chargeable on the applicant.
40. 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 complaints concerning the unlawful character of the applicant’s detention, a lack of sufficient reasons for it and a failure to examine speedily the appeals against the detention orders of 26 June 2007 and of 20 February 2008 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention;
3. Holds that there has been a violation of Article 5 § 3 of the Convention;
4. Holds that there has been a violation of Article 5 § 4 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 22 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident
Full & Egal Universal Law Academy