THIRD SECTION
CASE OF LIPAYEV v. RUSSIA
(Application no. 66921/16)
JUDGMENT
STRASBOURG
15 May 2018
This judgment is final but it may be subject to editorial revision.
In the case of Lipayev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 17 April 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 66921/16) 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 Oleg Leonidovich Lipayev (“the applicant”), on 10 November 2016.
2. The applicant was represented by Mr K. Terekhov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. On 18 January 2017 the complaint concerning alleged failure of the domestic courts to examine speedily the applicant’s appeals against detention orders was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1975 and was detained in Vladivostok at the relevant time.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. On 18 April 2016 the applicant was arrested on charges of fraud. Four days later the Pervorechensky District Court of Vladivostok authorised his pre-trial detention. The detention was further extended on 15 June and 14 September 2016.
7. On 25 April, 20 June and 16 September 2016 the applicant appealed against the detention orders of 22 April, 15 June and 14 September 2016. The Primorye Regional Court dismissed the appeals on 1 June, 5 July and 25 October 2016, respectively.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
8. The applicant complained that his appeals against the detention orders had not been examined speedily. He relied on Article 5 § 4 of the Convention which reads 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.”
9. The Government did not submit any observations on the admissibility and merits of the complaint.
A. Admissibility
10. The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
11. The Court reiterates that it has already found a violation of Article 5 § 4 of the Convention in a number of cases against Russia, where, for instance, the proceedings by which the lawfulness of applicants’ detention was decided lasted twenty-seven (see Pichugin v. Russia, no. 38623/03, §§ 154-56, 23 October 2012), twenty (see Butusov v. Russia, no. 7923/04, §§ 32-35, 22 December 2009) or twenty-six days (see Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006), stressing that their entire duration was attributable to the authorities.
12. The Court observes that the appeal lodged by the applicant against the detention order of 15 June 2016 was examined fifteen days later, which is compatible with the “speediness” requirement laid down in Article 5 § 4 of the Convention (see Pichugin, cited above, § 154).
13. At the same time, it took the Russian courts thirty-seven and thirty‑nine days, respectively, to examine the appeals against the detention orders of 22 April and 14 September 2016 (see paragraph 7 above). These periods cannot be considered compatible with the “speediness” requirement of Article 5 § 4 of the Convention.
14. To sum up, there has been no violation of Article 5 § 4 of the Convention on account of the length of the appeal proceedings in which the detention order of 15 June 2016 was examined and there has been a violation of that provision in view of the delays in examination of the appeals against the detention orders of 22 April and 14 September 2016.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
15. 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.”
16. The applicant claimed 5,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed EUR 1,200 in respect of costs and expenses incurred before the Court, to be paid directly to his representative, Mr K. Terekhov. The applicant enclosed copies of contracts with his representative and receipts confirming that the payments were made.
17. The Government submitted that Article 41 was to be applied in accordance with the established case-law of the Court.
18. Regard being had to the documents in its possession and to its case‑law on the subject (see 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, §§ 113-15, 18 February 2016; Albrechtas v. Lithuania, no. 1886/06, §§ 87-89, 19 January 2016; Karaosmanoğlu and Özden v. Turkey, no. 4807/08, §§ 89‑91, 17 June 2014), the Court considers it reasonable to award the applicant EUR 500 in respect of non-pecuniary damage, plus any tax that may be chargeable.
19. According to the Court’s case‑law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. Moreover, legal costs are only recoverable to the extent that they relate to any violation found (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 220, ECHR 2007-IV). Having regard to the above criteria, and noting that part of the application was declared inadmissible (see paragraph 3 above), the Court considers it reasonable to award the applicant EUR 240, plus any tax that may be chargeable to him, in respect of costs and expenses, to be paid to his representative, Mr K. Terekhov.
20. 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 no violation of Article 5 § 4 of the Convention on account of the length of the proceedings in which the applicant’s appeal against the detention order of 15 June 2016 was examined;
3. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the domestic courts’ failure to examine “speedily” the applicant’s appeals against the detention orders of 22 April and 14 September 2016;
4. 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 500 (five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 240 (two hundred and forty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, payable directly to the applicant’s representative, Mr K. Terekhov;
(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;
5. Dismisses the remainder of the applicant’s claims for just satisfaction.
Done in English, and notified in writing on 15 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıAlena Poláčková
Deputy RegistrarPresident
Full & Egal Universal Law Academy