CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 octobre 2016

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RUSSIA   (Application no. 19857/09)                   JUDGMENT     STRASBOURG   11 October 2016         This judgment is final but it may be subject to editorial revision.   In the case of Urmanov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Branko Lubarda, President,   Pere Pastor Vilanova,   Georgios A. Serghides, 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. 19857/09) 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 Timur Akhatovich Urmanov (“the applicant”), on 27 February 2009. 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 22 January 2014 the complaints concerning the applicant’s pre ‑ trial detention and the hindrance in the exercise of the right of individual petition 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 1976 and lives in Neftekamsk, Bashkortostan Republic. A.     Criminal proceedings against the applicant 5.     On 4 September 2008 the applicant was arrested on suspicion of causing and inciting prostitution of minors and unlawful breaking and entering. According to the record of the arrest, a number of witnesses made statements about the applicant’s involvement in the said crimes. 6.     On 5 September 2008 the Leninskiy District Court of Ufa remanded the applicant in custody noting as follows: “[The applicant] is charged with serious offences, which fact suggests that, being a former law enforcement officer, if released, he may interfere with the establishment of the truth, influence or threaten witnesses and victims, continue criminal activities or abscond and it will not be possible to complete the investigation or conduct a trial. The Court considers that [a less strict] restrictive measure cannot be applied.” 7.     The applicant remained in custody pending investigation and trial. Relying on the seriousness of the charges against the applicant, the District Court extended the applicant’s detention during investigation on 30   October and 18 December 2008. On 15   July and 20   October 2009, 20   January, 15   April, 16   June, 19   August and 15   November 2010 the Supreme Court of the Bashkortostan Republic extended the applicant’s detention pending trial. Each time the Supreme Court issued a collective detention order in respect of five defendants, including the applicant, and noted that the circumstances underlying their remand in custody had not ceased to exist. Relying further on the seriousness of the charges against the five defendants, the Supreme Court reasoned that, if released, they might abscond, continue criminal activities or interfere with the establishment of the truth. The applicant’s appeals were to no avail. 8.     On an unspecified date the applicant was charged with abuse of power and organisation of a criminal gang. 9.     On 27 December 2010 the Supreme Court of the Bashkortostan Republic found the applicant guilty of several counts of causing and inciting prostitution of minors, abuse of power and unlawful breaking and entering. He was acquitted of organisation of a criminal gang and one count of causing and inciting prostitution of minors. 10.     On 27 April 2011 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal. 11.     On 21 July 2011 the applicant was released on parole. B.     Delays in delivery and opening of the Court’s letter of 17   April 2009 12.     Following the remand in custody on 5   September 2008, the applicant was detained in remand prison no.   IZ-3/1 in Ufa. On 20   April 2009 the applicant was transferred to remand prison no.   IZ 3/5 in Dyurtyuli where he was detained until 12   October 2009. 13.     On 27   February 2009 the applicant sent a letter to the Court alleging a violation of his right to liberty and asking the Court to send him an application form. His letter was registered as application no.   19857/09. 14.     On 17 April 2009 the Court sent a letter to the applicant which contained an application form to be filled out. In the letter the Court advised the applicant that he was to submit a completed application form by 12   June 2009. The Court’s letter was sent to remand prison no.   IZ-3/1 in Ufa. The applicant was not detained at the remand prison at the moment and the Court’s letter was forwarded, to correctional colony no.   IK-4. According to the stamp on the Court’s letter of 17   April 2009, the correctional colony received it on 2   September 2009. Then the administration of the correctional colony sent the letter back to remand prison no.   IZ-3/1. The remand prison received it on 14   September 2009 and forwarded it to remand prison no.   IZ ‑ 3/5 where the applicant was detained. The letter arrived there on 2   October 2009 and on the same day the applicant received it (according to the applicant, he received the letter on 5   October 2009). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5   §   3 OF THE CONVENTION 15.     The applicant complained under Articles   5   §§   1, 3 and 4 and 6   §   2 of the Convention that his pre-trial detention had not been justified. The Court will examine the complaint under 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.” 16.     The Government contested that argument. The considered that the applicant’s pre-trial detention had been based on relevant and sufficient reasons. He had been a former police officer and, if at large, could have interfered with administration of justice. 17.     The applicant maintained his complaint. A.     Admissibility 18.     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 19.     The Court notes that the applicant’s pre-trial detention lasted from 4   September 2008, when the applicant was arrested, until 27   December 2010, when the applicant was convicted by the court at first level of jurisdiction. It amounted to almost to two years and five months. 20.     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 seriousness of the charges and using stereotyped formulae without addressing his or her specific situation (see, among many other authorities, Valeriy Samoylov v. Russia , no.   57541/09, 24 January 2012; Romanova v.   Russia , no.   23215/02, 11 October 2011; Sutyagin v. Russia , no.   30042/02, 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). 21.     Having regard to the materials in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. When extending the applicant’s detention, the domestic courts consistently relied on the seriousness of the charges against the applicant giving no heed to his personal situation. Accordingly, the Court considers that by failing to address specific facts or consider alternative preventive measures and by issuing collective detention orders, 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 approximately two years and five months. In those circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”. 22.     Having regard to the above, the Court finds that there has been a violation of Article 5 § 3 of the Convention. II.     ALLEGATION OF HINDRANCE IN THE EXERCISE OF THE RIGHT OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION 23.     The applicant complained that the Court’s letter of 17   April 2009 had been delivered to him with a significant delay. The Court will examine this complaint from the standpoint of the right of individual petition guaranteed by Article   34 of the Convention, which reads: “The Court may receive applications from any person... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A.     The parties’ submissions 24.     The Government submitted that the facts complained of by the applicant did not support the applicant’s allegations of the hindrance in the exercise of the right of individual petition. The delay in the delivery of the Court’s letter to the applicant should not be attributed to the authorities. The applicant’s place of detention changed and the authorities had duly forwarded the letter to his new address. The stamps indicating dates of the letter’s receipt were necessary for the letter’s registration purposes and should not be construed as the censorship of the applicant’s letter. 25.     The applicant considered that the delay in the delivery of the letter had been caused by the authorities. In particular, the letter arrived to the remand prison on 5   May 2009. For the reasons unknown, it had not been dispatched immediately. According to the stamps on the letter, it arrived to its next destination only in September 2009. The applicant argued that the administration of the remand prison had deliberately procrastinated with the despatch of the letter to make him miss the deadline for sending the application form to the Court. B.     The Court’s assessment 26.     The Court reiterates that the right of individual petition under Article   34 of the Convention will operate effectively only if an applicant can interact with the Court freely, without being subjected to any form of pressure from the authorities to withdraw or modify his or her complaints (see Akdivar and Others v. Turkey , no. 21893/93, § 105, ECHR 1996 ‑ IV). The expression “any form of pressure” must be taken to cover not only direct coercion and flagrant acts of intimidation of applicants or their legal representatives but also other improper indirect acts or contacts designed to dissuade or discourage them from pursuing a Convention remedy or having a “chilling effect” on the exercise of the right of individual petition by applicants and their representatives (see Fedotova v. Russia , no.   73225/01, §§   48-51, 13 April 2006; McShane v. the United Kingdom , no.   43290/98, §   151, 28 May 2002; and Tanrıkulu v. Turkey [GC], no. 23763/94, § 130, ECHR 1999-IV). The intentions or reasons underlying the acts or omissions in question are of little relevance when assessing whether Article   34 of the Convention was complied with; what matters is whether the situation created as a result of the authorities’ act or omission complies with Article   34 (see Paladi v. Moldova [GC], no. 39806/05, § 87, 10 March 2009). 27.     Turning to the circumstances of the present case, the Court observes that its letter of 17   April 2009 with the enclosed application form for the applicant to fill out was handed to him by the remand prison’s administration approximately five months after its receipt and when the time-limit set out by the Court for the submission of the application form had already expired. Admittedly, the authorities needed certain time to re ‑ address the Court’s letter in view of the applicant’s transfer to another detention facility. However, the Court finds it striking, as pointed out by the applicant, that for almost four months the administration of the remand prison did nothing in order to send the letter to the applicant’s new place of detention. Furthermore, the letter was first, for the reasons unknown forwarded to a correctional colony where the applicant had never been detained. That mistake on the part of the authorities caused further delay in the delivery of the letter. 28.     Regard being had to the nature of the Court’s correspondence and its importance for the subsequent procedure before the Court, the significance of the delay in handing it to the applicant, the Court considers that the actions of the domestic authorities had affected the effective exercise by the applicant of his right to individual petition, which is incompatible with the respondent State’s obligations under Article 34 of the Convention (compare, Kononenko v. Russia , no. 33780/04, §§   75-76, 17 February 2011, where the Court found a forty-two days’ delay in delivering the Court’s letter to the applicant to be incompatible with the requirements set out in Article34 of the Convention). 29.     In view of the foregoing, the Court finds that, by causing, through their acts and omissions, the delayed delivery of the Court’s correspondence to the applicant, the Russian authorities failed to ensure his effective and open access to the Court. The Court therefore concludes that the respondent State has failed to comply with its obligations under Article 34 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.” A.     Damage 31.     The applicant claimed 884,000 Russian roubles (RUB) (lost income and profit) in respect of pecuniary damage. He further claimed non ‑ pecuniary damage leaving the determination of its amount to the Court’s discretion. 32.     The Government considered the applicant’s pecuniary damage claim excessive and unsubstantiated. As to the non-pecuniary damage, they proposed that the finding of a violation would constitute sufficient just satisfaction. 33.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant 3,900 euros (EUR) in respect of non ‑ pecuniary damage. B.     Costs and expenses 34.     The applicant also claimed RUB   222.30 for the postal expenses incurred before the Court. 35.     The Government did not object to the reimbursement of the amount claimed by the applicant 36.     Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the sum of EUR   3 covering costs for the proceedings before the Court. C.     Default interest 37.     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.     Declares the application admissible;   2.     Holds that there has been a violation of Article 5   §   3 of the Convention;   3.     Holds that the State has failed to meet its obligation under Article   34 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 3,900 (three thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 3 (three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Branko Lubarda Deputy Registrar   President