CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 mai 2016

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RUSSIA   (Application no. 44815/10)             JUDGMENT         STRASBOURG   24 May 2016     This judgment is final but it may be subject to editorial revision. In the case of Shepel 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 Stephen Phillips, Section Registrar, Having deliberated in private on 3 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 44815/10) 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 Vladimir Gennadyevich Shepel (“the applicant”), on 15 July 2010. 2.     The applicant was represented by Mr S. Uvarov, a lawyer practising in Yaroslavl. 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 1 October 2014 the complaint concerning the length of pre-trial detention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of the Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1968 and, prior to his conviction, lived in Yaroslavl. 5.     On 15 April 2008 the applicant was arrested on suspicion of fraud. Subsequently, he was charged with fraud, attempted fraud, embezzlement, tax evasion and a breach of duties in his work as a tax agent. 6.     On 16 April 2008 the Kirovskiy District Court of Yaroslavl remanded the applicant in custody pending investigation. The judge found that (1) the applicant was suspected of serious crimes, (2) he might abscond, (3) he might put pressure on witnesses, or (4) he might interfere with the investigation. 7.     On 25 April 2008 the Yaroslavl Regional Court upheld the detention order of 16 April 2008 on appeal. 8.     The applicant remained in detention pending investigation and trial. The courts extended his detention, using the same stereotyped formula as described above. 9.     On 16 March 2009 he was committed for trial before the Kirovskiy District Court of Yaroslavl. 10.     On 27 October 2009 he was convicted of the charges and sentenced to seven years’ imprisonment. 11.     On 29 December 2009 the Yaroslavl Regional Court quashed the judgment on appeal and remitted the case to the first-instance court for a fresh examination. 12.     On 25 January 2010 the trial court ordered his release on bail. 13.     On 27 January 2010 the bail was paid and the applicant was released. 14.     On 20 July 2010 the applicant was convicted of fraud and attempted fraud and sentenced to five years and six months’ imprisonment. 15.     On 19 October 2010 the Yaroslavl Regional Court upheld the judgment on appeal. II.     PROCEEDINGS BEFORE THE COURT 16.     On 2 December 2014 the Government submitted a unilateral declaration. They acknowledged that the applicant had been detained “between 15 April 2008 and 27 October 2009 ... without relevant and sufficient grounds”, in breach of the requirements of Article 5 § 3 of the Convention. They offered to pay him a sum of 1,850 euros (EUR) as just satisfaction and invited the Court to strike the case out of its list of cases. 17.     On 2 February 2015 the applicant replied that he had taken note of the Government’s acknowledgment of the violation, but that the amount of compensation was not acceptable to him. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 18.     The applicant complained that the duration of his pre-trial detention had been excessive and therefore in breach of 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.     Scope of the complaint 19.     Having regard to the provisions contained in the unilateral declaration submitted by the Government, the Court considers it necessary to determine the scope of the applicant’s complaint at the outset. 20.     The Court reiterates that, generally speaking, when determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance, or, possibly, when the applicant is released from custody pending criminal proceedings against him (see Labita v.   Italy   [GC], no. 26772/95, §§ 145-47, ECHR 2000‑IV, and Idalov v.   Russia [GC], no. 5826/03, § 112, 22 May 2012). 21.     In the present case, the applicant’s pre-trial detention began at the date when he was arrested, namely, on 15 April 2008. He was detained for the purpose of Article 5 § 3 until his conviction by the Kirovskiy District Court of Yaroslavl on 27 October 2009. He was then placed in pre-trial detention again on 29 December 2009 when the Yaroslavl Regional Court quashed his conviction. He was detained till 27 January 2010 when he was released (see Solmaz v. Turkey , no. 27561/02, §§ 34-37, 16 January 2007). Thus, the applicant was in pre-trial detention for one year, seven months and eleven days. B.     The Government’s request for the case to be struck out under Article 37 of the Convention 22.     Having studied the terms of the Government’s declaration of 2   December 2014, the Court is satisfied that the Government have acknowledged a violation of the applicant’s right to release pending trial under Article 5 § 3 of the Convention and have also offered to pay compensation. 23.     The Court observes, however, that the Government submitted a declaration which only covered part of the period of the applicant’s pre-trial detention, namely, the period from 15 April 2008 to 27 October 2009, and did not acknowledge the violation of Article 5 § 3 of the Convention with regard to the period of pre-trial detention from 29 December 2009 to 27   January 2010. Without prejudging its decision on the admissibility and merits of the case, the Court considers, in such circumstances, that the Government’s declaration does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see Sorokin v.   Russia , no. 67482/10, § 21, 10   October 2013, and Kalınin v. Russia , no.   54749/12, § 23, 19 February 2015). 24.     That being so, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case. C.     Admissibility 25.     The Court considers that the application 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. D.     Merits 26.     The Court has already, on a large number of 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 extended an applicant’s detention, relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many other examples, Valeriy Samoylov v. Russia , no.   57541/09, 24   January 2012; Romanova v. Russia , no. 23215/02, 11   October 2011; Sutyagin v. Russia , no. 30024/02, 3 May 2011; Logvinenko v. Russia , no.   44511/04, 17 June 2010; Gultyayeva v. Russia , no. 67413/01, 1 April 2010; Makarenko v. Russia , no. 5962/03, 22   December 2009; Lamazhyk v.   Russia , no. 20571/04, 30 July 2009; Belov v. Russia , no. 22053/02, 3 July 2008; and Shukhardin v. Russia , no.   65734/01, 28 June 2007). Similar considerations apply in the circumstances of the present case, in which the domestic courts failed to consider any alternative to a custodial preventive measure and in which the Government acknowledged the absence of relevant and sufficient reasons for keeping the applicant in custody during the initial one and a half years of his detention. 27.     There has accordingly been a violation of Article 5 § 3 of the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 28.     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 29.     The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. 30.     The Government offered in their unilateral declaration EUR 1,850 in respect of pecuniary and non-pecuniary damage as well as costs and expenses. 31.     The Court awards the applicant EUR 2,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. B.     Costs and expenses 32.     The applicant did not make any claim under this head. C.     Default interest 33.     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.     Rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention;   2.     Declares the application admissible;   3.     Holds that there has been a violation of Article 5 § 3 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months from the date of the judgment, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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 amount 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 claim for just satisfaction. Done in English, and notified in writing on 24 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Helena Jäderblom   Registrar   President