THIRD SECTION
CASE OF TOKARENKO v. RUSSIA
(Application no. 30472/18)
JUDGMENT
STRASBOURG
7 July 2022
This judgment is final but it may be subject to editorial revision.
In the case of Tokarenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Andreas Zünd,
Mikhail Lobov, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 16 June 2022,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 June 2018.
2. The applicant was represented by Mr A. Kiryanov, a lawyer practising in Taganrog.
3. The Russian Government (“the Government”) were given notice of the application.
THE FACTS
4. The applicant’s details and information relevant to the application are set out in the appended table.
5. The applicant complained of the excessive length of his pre-trial detention. He also raised other complaints under the provisions of the Convention.
THE LAW
the government’s request to strike part of the application out6. The Government submitted a unilateral declaration whereby they acknowledged a violation of Article 5 § 3 of the Convention on account of the applicant’s pre-trial detention between 1 October 2014 and 28 May 2018. They also acknowledged a violation of Article 3 of the Convention on account of the use of a metal cage in the courtroom and a violation of Article 13 of the Convention on account of the lack of an effective remedy in that respect. The Government offered to pay the applicant 6,460 euros (EUR) and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The said amount would be converted into the currency of the respondent State at the rate applicable on the date of payment and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay that amount within the above-mentioned three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
7. The applicant accepted the Government’s proposal.
8. In the light of the applicant’s express agreement to the terms of the declaration made by the Government, the parties may be considered to have reached a friendly settlement.
9. The Court takes note of the friendly settlement agreement. It is satisfied that it is based on respect for human rights as defined in the Convention and the Protocols thereto, and finds no reasons to justify the continued examination of the application in that part.
10. It is hence appropriate to strike the case out of the Court’s list in the part covered by the friendly settlement in accordance with Article 39 § 3 of the Convention.
ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION11. The applicant further complained that his pre-trial detention during the period between 28 May 2018 and 22 October 2020 had also been unreasonably long. He 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.”
12. 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).
13. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.
14. 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 considers that in the instant case the length of the applicant’s pre-trial detention during the abovementioned period was excessive.
15. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION16. 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.”
17. 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 sum indicated in the appended table.
18. The Court further 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, in accordance with Article 39 of the Convention, to strike the application in the part concerning the complaint under Article 5 § 3 of the Convention in respect of the period between 1 October 2014 and 28 May 2018 and the complaints under Articles 3 and 13 of the Convention, out of its list of cases;Declares the remaining part of the application admissible;Holds that this application discloses a breach of Article 5 § 3 of the Convention concerning the excessive length of the pre-trial detention during the period between 28 May 2018 and 22 October 2020;Holds(a) that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State 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.
Done in English, and notified in writing on 7 July 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Darian Pavli
Acting Deputy Registrar President
APPENDIX
Application raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Period of detention
Court which issued detention order/examined appeal
Length of detention
Specific defects
Amount under the friendly settlement between the parties
(in euros)[1]
Amount awarded by the Court for pecuniary and non-pecuniary damage and costs and expenses per applicant in respect of the violation of Article 5 § 3 of the Convention
(in euros)[2]
30472/18
07/06/2018
Sergey Sergeyevich TOKARENKO
1988
Kiryanov Aleksandr Vladimirovich
Taganrog
28/05/2018 to
22/10/2020
Rostov Regional Court; Fourth Cassation Court
2 years,
4 months,
26 days
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; 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
6,460
2,500
[1] Plus any tax that may be chargeable to the applicant.
[2] Plus any tax that may be chargeable to the applicant.