THIRD SECTION
DECISION
Applications nos. 9659/18 and 28858/18
Kazbek Khizriyevich GIMBATOV
against Russia
The European Court of Human Rights (Third Section), sitting on 17 June 2021 as a Committee composed of:
Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the declaration submitted by the respondent Government requesting the Court to strike the applications out of the list of cases insofar as they relate to Article 5 § 4 of the Convention,
Having regard to the observations submitted by the Government in response to the remaining complaints,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Kazbek Khizriyevich Gimbatov, a Russian national, was born in 1971 and lived in Moscow. He was represented before the Court by Mr D. Panfilov, a lawyer practising in Moscow.
2. The applicant’s complaints under Article 5 § 4 of the Convention about the length of the judicial review of the house arrest orders of 10 November 2017 and 23 March 2018 and under Article 5 § 3 of the Convention concerning the length of his house arrest were communicated to the Russian Government (“the Government”).
THE LAWJOINDER OF THE APPLICATIONS
3. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.Complaint under ARTICLE 5 § 4 OF THE CONVENTION
4. The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving issues raised under Article 5 § 4 of the Convention.
5. The Government acknowledged a violation of Article 5 § 4 of the Convention on account of the length of the judicial review of the house arrest orders of 10 November 2017 and 23 March 2018. They offered to pay the applicant the amount of EUR 500, free of any taxes that may be chargeable, and invited the Court to strike the applications out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The 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.
6. The payment will constitute the final resolution of the case.
7. The applicant disagreed with the terms of the declaration.
8. The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
9. Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued (see, in particular, the Tahsin Acar v. Turkey judgment (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI).
10. The Court has established clear and extensive case-law concerning complaints related to the length of judicial review of detention (see, for example, Idalov v. Russia [GC], no. 5826/03, §§ 150-158, 22 May 2012).
11. Noting the admissions contained in the Government’s declaration as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications in the part covered by the unilateral declaration (Article 37 § 1 (c)).
12. In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications in the part covered by the unilateral declaration (Article 37 § 1 in fine).
13. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the applications may be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
14. In view of the above, it is appropriate to strike the cases out of the list as regards the complaints concerning the length of the judicial review of the house arrest orders of 10 November 2017 and 23 March 2018.Complaint under ARTICLE 5 § 3 OF THE CONVENTION
15. The applicant also complained under Article 5 § 3 of the Convention about the excessive length of his house arrest.
16. The Government submitted that the applicant had been placed under house arrest between 15 December 2016 and 16 April 2018, thus for sixteen months in total. They further pointed out that the applicant did not appeal against most of the house arrest orders, and even consented to some of them. They also submitted that the case was complex since it had been merged with other criminal proceedings and there had been several co-defendants. Finally, the Government highlighted that the applicant had been charged with bribing a judge.
17. The Court observes that the existence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention (see Idalov, cited above, § 140), however, after a certain lapse of time it no longer suffices. As time passed the domestic courts analysed the prospect of applying more lenient interim measures, but did not find it possible since he was facing charges for crimes related to the administration of justice and there had been substantiated risks that he would frustrate the criminal proceedings by putting pressure on witnesses, contacting other alleged perpetrators and tampering with evidence. The Court reiterates that, in cases such as the present one concerning organised criminal activities, the risk that a detainee, if released, might put pressure on witnesses or other co-accused, or otherwise obstruct the proceedings, is by the nature of things often particularly high (see Štvrtecký v. Slovakia, no. 55844/12, § 61, 5 June 2018). The Court also notes that, with the passing of time, the courts’ reasoning evolved to reflect the state of the investigation and to verify whether the grounds for detention remained valid. Finally, the Court notes that despite the complexity of the case, the applicant was brought to trial less than a year after he had been charged with the crime.
18. Having regard to the above-mentioned considerations, the Court concludes that the complaint under Article 5 § 3 of the Convention is manifestly ill-founded, and thus must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the respondent Government’s declaration in so far as it concerns the complaints under Article 5 § 4 of the Convention, and of the arrangements for ensuring compliance with the undertakings referred to therein;
Decides to strike this part of the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the applications inadmissible.
Done in English and notified in writing on 8 July 2021.
{signature_p_2}
Viktoriya MaradudinaDarian Pavli
Acting Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 5 § 4 of the Convention
(excessively lengthy proceedings for judicial review of detention)
Applications nos.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Date of receipt of Government’s declaration
Date of receipt of applicant’s comments, if any
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses
per applicant
(in euros)[1]
9659/18
13/02/2018
AND
28858/18
13/06/2018
Kazbek Khizriyevich GIMBATOV
1971
Panfilov Dmitriy Vladimirovich
Moscow
20/01/2020
11/09/2020
500
[1] Plus any tax that may be chargeable to the applicant
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