CASE OF PELEVIN v. RUSSIA

FIRST SECTION

CASE OF PELEVIN v. RUSSIA

(Application no. 38726/05)

JUDGMENT

STRASBOURG 

10 February 2011

FINAL

10/05/2011

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Pelevin v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 18 January 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 38726/05) 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 Sergey Vasilyevich Pelevin (“the applicant”), on 20 October 2005.

2. The applicant was represented by Mr A.I. Samsonov, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the former representative of the Russian Federation at the European Court of Human Rights.

3. On 9 February 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1972 and lives in St Petersburg.

A. Arrest of the applicant and detention orders of 17 April, 10 June and 17 August 2004

5. On 15 April 2004 the applicant was apprehended.

6. On 17 April 2004 the Kuybyshevskiy District Court of St Petersburg authorised his detention on remand. The court based its decision on the grounds that the applicant had a criminal record and was suspected of having committed several serious criminal offences, notably robbery and participation in a criminal gang, that he was unemployed and had no income to support himself and his family. Moreover, as some accessories to robbery had not yet been identified, the applicant, if remained at large, could have alerted his accomplices and thus interfere with the investigation.

7. It appears that by decisions of 10 June and 17 August 2004 the District Court extended the applicant's detention. On the latter occasion it did so until 21 October 2004. According to the applicant, the court relied mainly on the gravity of charges against him.

B. Detention orders of 5 November and 28 December 2004 and related appeals

8. On 21 October 2004 the case against the applicant and his fourteen co-defendants was referred to the Leningrad Regional Court for trial.

9. On 5 November 2004 the trial court in a closed meeting decided to fix a date for the preliminary hearing. Besides, without referring to any grounds, it ordered that the detention measure imposed on the applicant and his co-defendants “should remain unchanged”.

10. On 28 December 2004 the Regional Court held the preliminary hearing. The applicant and his counsel pleaded for his release on factual and legal grounds. They submitted that the applicant's criminal record had been purged and that he had dependants, namely a disabled mother and under-age daughter. They also asserted that the authorised detention had expired on 21 October 2004 and that a further detention – from 5 November 2004 afterwards – had been extended unlawfully, that is outside the time-limit and in the absence of the applicant and his representative. The court acknowledged that the applicant's previous conviction had expired and that he had two dependants. However, it attached decisive weight to the gravity of the charges and found no reason to vary the preventive measure because “the initial grounds for detention still obtained”. The court thus authorised the applicant's further detention. It did not set any time-limit. On the same occasion, the Regional Court returned the case to the prosecutor for remedying defects of the bill of indictment.

11. Counsel for the applicant filed an appeal, maintaining that any extension of the custodial measure after the initial detention period had expired on 21 October 2004 had been unlawful.

12. On 21 April 2005 the Supreme Court of Russia dismissed the appeal. The relevant part of its decision reads:

“... It appears from the materials that the case against [the applicant and others] was received by the [Regional] Court on 21 October 2004. The authorities in charge of the preliminary investigation had authorised their detention until that date.

Neither at the directions hearing, nor at the preliminary hearing did the [Regional] Court detect any violations of law in the application of the preventive measure to the defendants and its extension during the pre-trial investigation.

There existed no grounds for revoking or varying the chosen measure.

Taking into account those considerations and also the gravity of the charges against the defendants, the [Regional] Court correctly decided not to vary the preventive measure in the form of placement in custody.

Since 5 November 2004 the defendants have been held in custody on the basis of a lawful and justified judicial decision ...”

C. Detention order of 19 April 2005 and related appeal

13. On 19 April 2005 the Regional Court examined and granted the prosecutor's application for the extension of the defendants' detention until 21 July 2005. The court relied on the same grounds as in its decision of 28 December 2004 (see paragraph 10).

14. The applicant's lawyer appealed. He submitted that the Regional Court by its decision had violated the right of the defence because it extended the detention period in the absence of the case materials which had been at that time at the Supreme Court. He also reiterated the argument that the applicant's detention after 21 October 2004 had been unlawful.

15. By a decision of 29 June 2005, the Supreme Court dismissed the appeal. It held that the Code of Criminal Procedure did not prevent the decision on extending detention from being made at the time when the case-file was with the appeal court. Referring to its earlier decision of 21 April 2005, it declined to examine again the lawfulness of the applicant's detention after 21 October 2004.

D. Detention orders of 12 July 2005 and thereafter

16. On 15 June 2005 the case against the applicant and his co-defendants was again referred to the Regional Court for trial.

17. By a decision of 12 July 2005, it extended the applicant's detention until 21 October 2005. The court stated as follows:

“... Pelevin S.V. does not have a criminal record, has a minor dependent and a disabled mother ... However, the court has a regard to the gravity of the charges levelled against Pelevin S.V. The grounds which the court relied upon when it decided to place Pelevin S.V. in detention still obtain, therefore the [Regional] Court finds no reasons for varying ... the preventive measure [in question] ...”

18. From the material submitted to the Court, it follows that the Leningrad Regional Court, paraphrasing the grounds set out in the decision of 12 July 2005, extended the applicant's detention yet six times, notably by decisions of 17 October 2005, 17 January, 18 April, 11 July, 20 October 2006 and 19 January 2007. By the latter detention order, it maintained the custodial measure until 21 April 2007.

19. The applicant was convicted on 16 April 2007. No particulars about the conclusions in his criminal case have been provided to the Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Detention during criminal proceedings

20. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and deprivation of liberty (Article 98 of the Code of Criminal Procedure). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112 of the Code).

21. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charges, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 99).

22. Detention may be ordered by a court if the charges carry a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).

23. After arrest, the suspect is placed in custody “pending investigation”. The maximum permitted period of detention “pending investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). The period of detention “pending investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 109 § 9).

24. The term of detention “during the trial” is calculated from the date the prosecutor sends the case to the trial court and to the date the judgment is given. The period of detention “during the trial” may not normally exceed six months but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3 of the Code).

25. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide the appeal within three days after its receipt (Article 108 § 11).

26. On 22 March 2005 the Constitutional Court of the Russian Federation issued a decision no. 4-P where it held, in the relevant parts, as follows:

“The second part of Article 22 of the Constitution of the Russian Federation provides that ... detention is permitted only on the basis of a court order ... Consequently, if the term of detention, as defined in the court order, expires, the court must decide on the extension of the detention, otherwise the accused person must be released ...

These rules are common for all stages of criminal proceedings, and also cover the transition from one stage to another. ... The transition of the case to another stage does not automatically put an end to the measure of restraint applied at previous stages.

Therefore, when the case is transmitted by the prosecution to the trial court, the measure of restraint applied at the pre-trial stage ... may continue to apply until the expiry of the term for which it has been set in the respective court decision [imposing it] ...

[Under Articles 227 and 228 of the Code of Criminal Procedure] a judge, after having received the criminal case concerning a detained defendant, should, within 14 days, set a hearing and establish “whether the measure of restraint applied should be lifted or changed”. This wording implies that the decision to detain the accused or extend his detention, taken at the pre-trial stage, may stand after the completion of the pre-trial investigation and transmittal of the case to the court, only until the end of the term for which the measure of restraint has been set.

The prosecution, in its turn, when approving the bill of indictment and transferring the case file to the court, should check whether the term of detention has not expired and whether it is sufficient to allow the judge to take a decision [on further detention of the accused pending trial]. If by the time of transfer of the case file to the court this term has expired, or if it appears to be insufficient to allow the judge to take a decision [on detention], the prosecutor, applying Articles 108 and 109 of the Code of Criminal Proceedings, [must] ask the court to extend the period of detention.”

27. The Supreme Court in the Resolution of the Supreme Court of Russia No. 1 of 5 March 2004 on Application by Courts of the Code of Criminal Procedure noted that, when deciding on extension of a defendant's detention during the trial, the court should indicate the grounds justifying the extension and its time-limit.

B. Compensation for unlawful detention

28. The Civil Code of the Russian Federation provides as follows:

Article 1070. Responsibility for damage caused by unlawful acts of investigative authorities, prosecuting authorities and courts

“1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful detention on remand ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies ...”

Article 1100. Grounds for compensation for non-pecuniary damage

“Compensation for non-pecuniary damage shall be made irrespective of the fault of the person causing the damage when:

... the damage is caused to a citizen as a result of his unlawful conviction, unlawful criminal prosecution, unlawful detention on remand ...”

29. The Civil Code provides that the damage caused by an unlawful detention should be compensated irrespective of the fault of the wrongdoer (that is the State agency which decided detain). However, the notion of “unlawful” detention is not developed in provisions of the Civil Code. It appears that “unlawfulness” of detention have to be found by a competent authority.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

30. The applicant complained that his detention from 21 October to 28 December 2004 had been unlawful. He relied on Article 5 § 1 of the Convention which reads, in its relevant parts, as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...”

A. The parties' submissions

31. The Government conceded that the applicant's detention between 21 October and 5 November 2004 had not been based on a court order. They argued, however, that the applicant had failed to resort to domestic remedies available to him under the national civil law. In particular, he had failed to bring civil proceedings for compensation in accordance with Articles 1069 and 1100 of the Civil Code.

32. As to the period from 5 November to 28 December 2004, they submitted that at that time domestic courts had interpreted the relevant law, in particular Article 255 of the Code of Criminal Procedure, as permitting the detention of an accused without a court order for up to six months from the date of receipt of the case-file by the trial court. Even though in 2005 the Constitutional Court had found that such practice was to be tainted with arbitrariness, at the material time that interpretation of Article 255 had been valid and endorsed by all domestic courts. Therefore, the Regional Court in its decision of 5 November 2004 had lawfully limited itself to the general remark that the applicant should remain in custody. It had not breached the requirements of legal certainty and the protection from arbitrariness.

B. Court's assessment

1. Admissibility

33. The Court notes the Government's objection of non-exhaustion of domestic remedies by the applicant as regards the detention period from 21 October to 5 November 2004.

34. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. It is incumbent on the respondent Government claiming non-exhaustion to indicate with sufficient clarity the remedies to which the applicant did not have recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say, that they were accessible, were capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 65, 27 June 2006).

35. In the present case the Government suggested that the applicant could have brought civil proceedings for damages incurred through his unauthorized detention. However, the Court reiterates that the right to liberty and security is not the same as the right to receive compensation for unlawful deprivation of liberty. Paragraph 1 of Article 5 of the Convention covers the former and paragraph 5 of Article 5 the latter. The court invited to rule on an action for damages caused by unlawful detention examines the matter after the events and therefore does not have jurisdiction to order release if the custodial measure has been applied in breach of law. Therefore, the possibility of obtaining compensation for the unlawful or unjustified detention will not generally constitute an adequate and sufficient remedy for a substantive complaint under Article 5 § 1 (see, Moskovets v. Russia, no. 14370/03, § 51, 23 April 2009 and, Shcheglyuk v. Russia, no. 7649/02, § 34, 14 December 2006).

36. The Court notes that in certain circumstances such remedy may prove to be effective (see, for example, Trepashkin v. Russia, no. 36898/03, §§ 24-26 and 66-74, 19 July 2007). However, it should be borne in mind that pursuant to the Russian Civil Code, payment of an award, in respect of pecuniary and/or non-pecuniary damages, is conditional upon the prior finding that the detention was unlawful (see paragraph 28 above).

37. In the present case the applicant twice complained to the Supreme Court about the unlawfulness of his detention. By the decision of 21 April 2005 the Supreme Court dismissed his allegations in a summary fashion and then, by the decision of 29 June 2005, it refused to examine them again (see paragraphs 12 and 15 above). Therefore, it is improbable that the applicant's civil action for compensation would have had any prospect of success.

38. In the light of the above considerations, the Court is not prepared to dismiss this part of the complaint for non-exhaustion of domestic remedies.

39. It also considers that the applicant's complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

40. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. The “lawfulness” of detention under domestic law, however, is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see, among many other authorities, Khudoyorov v. Russia, no. 6847/02, § 124, ECHR 2005-X).

41. On the facts the Court observes that on 21 October 2004, the day when the applicant's case was referred to the trial court, the period of his detention authorised by the decision of 17 August 2004 expired. However, no further decision on his detention was taken.

42. The Court has found a violation of Article 5 § 1 of the Convention in many cases against Russia concerning the practice of holding defendants in custody solely on the strength of the fact that their case had been referred to the trial court. It held that the practice of keeping defendants in detention without judicial authorisation or clear rules governing their situation was incompatible with the principles of legal certainty and the protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see Isayev v. Russia, no. 20756/04, §§ 131-133, 22 October 2009; Yudayev v. Russia, no. 40258/03, §§ 59-61, 15 January 2009; Belov v. Russia, no. 22053/02, §§ 90-91, 3 July 2008; Lebedev v. Russia, no. 4493/04, §§ 55-58, 25 October 2007; Shukhardin v. Russia, no. 65734/01, §§ 84-85, 28 June 2007; Belevitskiy v. Russia, no. 72967/01, §§ 88-90, 1 March 2007; Korchuganova v. Russia, no. 75039/01, § 57, 8 June 2006; Nakhmanovich v. Russia, no. 55669/00, §§ 70-71, 2 March 2006 and Khudoyorov v. Russia, cited above, §§ 147-151). The Court takes cognisance of the fact that in the present case the Russian Government acknowledged that the applicant's detention during the period from 21 October to 5 November 2004 had not been based on a judicial decision and had therefore been in breach of domestic law and Article 5 § 1 of the Convention.

43. It is further observed that on 5 November 2004 the trial court set the date for the preliminary hearing and held that the applicant and other defendants should remain in custody. It did not, however, give any reasons for maintaining the custodial measure or fix a time-limit for the extended detention (see paragraph 9 above). This is a kind of situation that has been examined in many cases lodged against Russia in which the Court has found that the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period was incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1. Permitting a prisoner to languish in detention without a judicial decision based on concrete grounds and without setting a specific time-limit would be tantamount to overriding Article 5, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Avdeyev and Veryayev v. Russia, no. 2737/04, §§ 45-47, 9 July 2009; Bakhmutskiy v. Russia, no. 36932/02, §§ 112-114, 25 June 2009; Gubkin v. Russia, no. 36941/02, §§ 112-114, 23 April 2009; Shukhardin, cited above, §§ 65-70; Ignatov v. Russia, no. 27193/02, §§ 79-81, 24 May 2007; Solovyev v. Russia, no. 2708/02, §§ 97-98, 24 May 2007; Nakhmanovich, cited above, §§ 70-71; and Khudoyorov, cited above, §§ 134 and 142). The Court sees no reason to reach a different conclusion in the present case. It considers that the decision of 5 November 2004 did not comply with the requirements of clarity, foreseeability and protection from arbitrariness and that the ensuing period of the applicant's detention was not “lawful” within the meaning of Article 5 § 1.

44. Having examined the material submitted and having regard to its case-law on the subject the Court finds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant's detention from 21 October to 28 December 2004.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

45. The applicant complained that his detention during the trial had been unreasonably long and had not been founded on relevant and sufficient reasons. He relied on Article 5 § 3 of the Convention which reads 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. The parties' submissions

46. The Government, without providing any arguments, claimed that the applicant's detention had not been in breach of the requirements of Article 5 § 3 of the Convention

47. The applicant maintained his complaint.

B. The Court's assessment

1. Admissibility

48. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

49. The Court reiterates that the question whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI).

50. The existence and persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention. However after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000).

51. On the facts of the case, the applicant was arrested on 15 April 2004 and remained in custody at least until 16 April 2007. The inordinate length of the applicant's detention - three years - is a matter of grave concern for the Court. In these circumstances, the national authorities should have put forward very weighty reasons for keeping the applicant in detention.

52. The Court accepts that the applicant's detention could have initially been warranted by the gravity of the charges against him and the consideration to the risk of his obstructing justice by putting pressure on witnesses. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify his continued detention and whether they displayed “special diligence” in the conduct of the proceedings.

53. The Court observes that the authorised period of the applicant's initial pre-trial detention expired on 21 October 2004, the date when his case was referred to the trial court. In the period from 21 October to 5 November 2004 the applicant was kept in custody with no judicial authorisation. On 5 November the domestic court maintained his detention without citing any particular reason (see paragraphs 9 above). The only ground invoked in the two subsequent detention orders of 28 December 2004 and 19 April 2005 was the gravity of charges, with the addition that “the initial grounds warranting the application of the custodial measure still obtain” and that “there were no reasons for varying it” (see paragraphs 10 and 13 above). Afterwards, in seven extension orders between 12 July 2005 and 19 January 2007 the Regional Court repeatedly used the summary stereotyped formula and its reasoning did not evolve with the passing of time to reflect the developing situation and to verify whether the reasons for detention remained valid at the later stages of the proceedings (see paragraphs 17 and 18 above). At no point in the proceedings did the domestic authorities consider whether the length of the applicant's detention had exceeded a “reasonable time” or whether there was any room for applying alternative non-custodial measures to ensure his appearance at trial.

54. In the light of the facts of the present case, the Court considers that the domestic judicial authorities' decisions were not based on an analysis of all the pertinent circumstances. It reiterates that with the passage of time, the initial grounds for detention become less and less relevant and that the courts should rely on other “relevant” and “sufficient” grounds to justify the continued deprivation of liberty. It is of particular concern for the Court that the Russian authorities used a stereotyped formula in their extension orders.

55. The Court has frequently found a violation of Article 5 § 3 of the Convention in Russian cases where the domestic courts extended an applicant's detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing specific facts or considering alternative preventive measures (see Belevitskiy v. Russia, no. 72967/01, §§ 99 et seq., 1 March 2007.; Khudobin v. Russia, no. 59696/00, §§ 103 et seq., ECHR 2006-... (extracts); Mamedova v. Russia, no. 7064/05, §§ 72 et seq., 1 June 2006; Dolgova v. Russia, no. 11886/05, §§ 38 et seq., 2 March 2006; Khudoyorov v. Russia, cited above, §§ 172 et seq.; Rokhlina v. Russia, no. 54071/00, §§ 63 et seq., 7 April 2005; Panchenko v. Russia, no. 45100/98, §§ 91 et seq., 8 February 2005; and Smirnova v. Russia, nos. 46133/99 and 48183/99, §§ 56 et seq., ECHR 2003-IX (extracts)).

56. Having regard to the foregoing considerations, the Court finds that the authorities failed to justify the length of the applicant's detention by grounds which can be regarded as “relevant” and “sufficient”. In those circumstances it is not necessary to examine whether the proceedings were conducted with due diligence.

57. There has therefore been a violation of Article 5 § 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

58. The applicant complained that the appeal court had not reviewed speedily his appeals against the extension orders of 28 December 2004 and 19 April 2005. He relied on Article 5 § 4 of the Convention, which provides as follows:

“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. The parties' submissions

59. The Government argued that as regards the examination of the applicant's appeal against the extension order of 28 December 2004, his right guaranteed by Article 5 § 4 of the Convention had not been violated. The relevant materials had been submitted to the Supreme Court in February 2005. The hearing had been scheduled for 31 March 2005 but had been postponed owing to a sickness of a judge-rapporteur. Assigning the case to another judge would not expedite the proceedings.

60. As to the appeal proceedings brought in respect of the extension order of 19 April 2005, the Government submitted no information or argument.

61. The applicant reiterated his complaint.

B. The Court's assessment

1. Admissibility

62. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

63. Article 5 § 4 of the Convention, in guaranteeing to persons detained a right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000-III).

64. In the present case it took the domestic courts approximately one hundred days to examine the appeal against the extension order of 28 December 2004 and approximately sixty days to examine the appeal against the extension order of 19 April 2005 (see paragraphs 10-15 above). The Government submitted no information as regards the latter proceeding. As to the former, the Court considers that the illness of the official cannot be accepted as an excuse to dispense the State from the obligation to secure a right of a person to a speedy judicial review of the lawfulness of his or her detention.

65. The Court notes that nothing in the case suggests that the applicant in any way caused delays in the appeals proceedings.

66. In the light of its consistent case-law, the Court finds that the significant delays in the examination of the applicant's appeals cannot be considered compatible with the “speediness” requirement of Article 5 § 4 (compare, for example, Rehbock v. Slovenia, no. 29462/95, §§ 85-86, ECHR 2000-XII, where the review proceedings which lasted twenty-three days were not “speedy” and Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006; where the appeal proceedings lasted thirty-six, twenty-six, thirty-six, and twenty-nine days).

67. There has accordingly been a breach of Article 5 § 4.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

68. 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.”

A. Damage

69. The applicant claimed 10,000 euros (EUR). He did not specify the nature, that is pecuniary or non-pecuniary, of his claims.

70. The Government contested the claim as excessive.

71. The Court notes that it has found a combination of violations in the present case and considers that the applicant's sufferings and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on it.

B. Costs and expenses

72. The applicant did not claim reimbursement of her costs and expenses incurred before the domestic authorities and the Court. Accordingly, the Court does not make any award under this head.

C. Default interest

73. The Court considers it appropriate that the default interest 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 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 from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on 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 amount 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 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenChristos Rozakis              Registrar              President

Full & Egal Universal Law Academy