THIRD SECTION
CASE OF TUMANOV v. RUSSIA
(Application no. 38911/07)
JUDGMENT
STRASBOURG
11 October 2016
This judgment is final but it may be subject to editorial revision.
In the case of Tumanov 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 20 September 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 38911/07) 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 Valeriy Vladimirovich Tumanov (“the applicant”), on 31 July 2007.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3. On 16 March 2015 the complaints concerning length and review of pre-trial detention 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 1984 and is detained in Saint-Petersburg.
5. On 22 April 2004 he was arrested on suspicion of murder.
6. On 24 April 2004 the Vyborgskiy Federal District Court of Saint-Petersburg authorised the applicant’s pre-trial detention. He remained in custody pending investigation and trial.
7. On 7 February 2005 the District Court extended the applicant’s pre‑trial detention. The court referred to the gravity of charges, the applicant’s character, lack of permanent residence in Saint-Petersburg, and risk of absconding or re-offending.
8. On 7 April 2005 the District Court returned the case to the prosecutor and extended the applicant’s detention without specifying any reasons.
9. On 15 September 2005, 21 October 2005 and 15 December 2005 when extending pre-trial detention, the District Court reproduced the grounds for detention described above.
10. On 2 March 2006 the Saint-Petersburg City Court quashed the detention order of 15 December 2005 and remitted the case for a fresh examination.
11. On 16 March 2006, 22 March 2006 and 21 June 2006 the District Court extended the applicant’s detention referring to the gravity of charges, absence of permanent residence, his character, possibility of absconding and committing crimes. The applicant and his lawyer did not attend the hearing on 21 June 2006.
12. On 30 June 2006 the Vyborgskiy District Court of Saint-Petersburg convicted the applicant of murder and theft.
13. On 31 January 2007 the Saint-Petersburg City Court upheld his conviction on appeal. As regards the applicant’s appeal against the detention order of 21 June 2006, the court noted that the lower court had failed to ensure the applicant’s and his lawyer’s presence at the hearing of 21 June 2006. However, in view of the applicant’s conviction, it discontinued the appeal proceedings finding them unnecessary.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
14. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long and had not been 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.”
15. The Government stated that the applicant had failed to comply with the six months’ rule in respect of the complaint. His pre-trial detention ended on 30 June 2006, while he submitted his application to the Court on 31 July 2007.
16. The applicant did not comment.
A. Admissibility
17. The Court reiterates that, as a general rule, the six-month time-limit provided for by Article 35 § 1 of the Convention starts to run, in connection with a period of pre-trial detention, from the date on which the charge is determined by a court at first instance (see Daktaras v. Lithuania (dec.), no. 42095/98, 11 January 2000). However, where the applicant had challenged the lawfulness of his pre-trial detention in separate proceedings, in which a final decision was delivered after his conviction at first instance, the six-month time-limit runs from the date of that decision (see Popov v. Russia, no. 26853/04, § 153, 13 July 2006).
18. In this connection, the Court notes that the final decision concerning the latest extension of the applicant’s pre-trial detention was delivered on 31 January 2007. The application was lodged on 31 July 2007. Accordingly, it was introduced within six months of the final decision.
19. 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
20. The Court notes that the period to be taken into consideration lasted from 22 April 2004, the date of the applicant’s arrest, to 30 June 2006, the date of his conviction. It amounted, accordingly, to two years, two months, and eight days.
21. The Court has already, on numerous occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts had extended an applicant’s detention whilst essentially relying on the gravity of the charges and merely using stereotypical formulae without addressing his or her specific situation or considering alternative preventive measures (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).
22. Having regard to its case-law and to the facts of the present case, the Court considers that its earlier findings hold true in the present case. By failing to address specific facts or consider alternative preventive measures, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient” to justify him being remanded in custody for two years and two months. There has been, accordingly, a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
23. The applicant complained that on 21 June 2006 neither he nor his lawyer had attended the detention hearing whereas the prosecutor had been present and had made submissions to the court. 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.”
24. The Government did not comment.
25. The applicant maintained his complaint.
A. Admissibility
26. 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
27. The Court will examine the merits of the applicant’s complaint under Article 5 § 4 of the Convention in the light of the applicable general principles set out in, among others, the case of Idalov (see Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012, with further references).
28. Turning to the circumstances of the present case, the Court observes, and it is not disputed by the Government, that the applicant did not have an opportunity to present his arguments on the extension of his detention either before the first-instance or appeal court. Neither the applicant nor his lawyer was summoned to attend the hearing on 21 June 2006 when the court extended the applicant’s pre-trial detention until 22 September 2006. While they were present at the appeal hearing held on 31 January 2007, the appeal court discontinued the proceedings refusing to consider the applicant’s complaint against the detention order of 21 June 2006 on the merits.
29. The Court considers that, in such circumstances, the applicant was deprived of an effective review of the lawfulness of his continued detention, being unable to present his case effectively at any stage of the proceedings (compare, Vladimir Solovyev v. Russia, no. 2708/02, §§ 134-39, 24 May 2007). The Court therefore finds that there has been a violation of Article 5 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
30. 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.”
31. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints under Article 5 §§ 3 and 4 concerning the excessive duration and review of pre-trial detention admissible;
2. Holds that there has been a violation of Article 5 § 3 of the Convention;
3. Holds that there has been a violation of Article 5 § 4 of the Convention.
Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident
Full & Egal Universal Law Academy