CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 14 juin 2018

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font-size:5.33pt; vertical-align:super; color:#000000 }       THIRD SECTION             CASE OF KOLOSYUK AND OTHERS v. RUSSIA (Applications nos. 45162/13 and 4 others – see appended list )                 JUDGMENT             STRASBOURG   14 June 2018       This judgment is final but it may be subject to editorial revision. In the case of Kolosyuk and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Alena Poláčková, President,   Dmitry Dedov,   Jolien Schukking, judges, and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 24 May 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in applications against Russia lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.     The applications were communicated to the Russian Government (“the Government”). THE FACTS 3.     The list of applicants and the relevant details of the applications are set out in the appended table. 4.     The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention. THE LAW I.     JOINDER OF THE APPLICATIONS 5.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II.     ALLEGED VIOLATION OF ARTICLE 5   §   3 OF THE CONVENTION 6.     The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article   5   §   3 of the Convention, which read as follows:   “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.” 7.     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). 8.     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. 9.     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. 10.     Turning to application no. 46121/16, the Court would like to stress, in particular, that this is the second application lodged by Mr Shilov, concerning one and the same lengthy detention on remand period. The Court has already found a violation of Article 5 § 3 of the Convention in respect of the first application (no. 59337/13) lodged by Mr Shilov on 13   September 2013 on account of his on-going unreasonably long detention on remand (see Aristov and 10 others v. Russia [Committee], nos. 36101/11 et al., 21 July 2016). Following that judgment, Mr Shilov remained in detention pending the trial proceedings against him and until his release on 21   November 2016. In the meantime, on 29 July 2016 he lodged the present application with the Court. The Court further observes that the Presidium of the Supreme Court, responding to the Court’s findings in the Aristov and 10   others case (cited above), quashed all the detention orders issued by the Russian courts during the investigation stage in respect of the applicant, up to the detention order of 2 February 2016, and explicitly refused to assess the subsequent detention orders, delivered by the Russian courts after the applicant’s criminal case had been transferred to the trial court for examination on the merits. 11.     The Government objected that the applicant’s second application (no. 46121/16) was substantially similar to his first one (no. 59337/13) and that the breach of his rights under Article 5 § 3 of the Convention had been remedied by the decision of the Presidium of the Russian Supreme Court to quash the detention orders. Having examined the Government’s objections, the Court dismisses them for the following reasoning. It reiterates that in principle there is nothing to prevent the Court from examining a subsequent application raising a new issue undecided by the original judgment (see Mehemi v. France (no. 2), no. 53470/99, § 43, ECHR 2003 ‑ IV; Pailot v.   France , 22 April 1998, § 57, Reports of Judgments and Decisions 1998 ‑ II; Leterme v. France , 29 April 1998, Reports 1998 ‑ III; and Rando v.   Italy , no 38498/97, 15 February 2000). 12.     In the specific context of a continuing violation of a Convention right following adoption of a judgment in which the Court found a violation of that right during a certain period, it is not unusual for the Court to examine a second application concerning a violation of the same right during the subsequent period (see Wasserman v. Russia (no. 2) , no.   21071/05, §   33, 10   April 2008, with further references). 13.     The Court observes that application no. 59337/13 concerned the applicant’s excessively long detention on remand. When the Court delivered its judgment on 21 July 2016, having found a violation of Article 5 § 3 of the Convention and having made an award in respect of the period preceding its judgment, the applicant was still in detention on remand. 14.     The present application, which the applicant lodged on 29 July 2016, concerns his continuous detention on remand in the period subsequent to the Court’s judgment of 21 July 2016. 15.     The Court acknowledges that it has no jurisdiction to review the measures adopted in the domestic legal order to put an end to the violations found in its judgment in the first case brought by the applicant. It may, nevertheless, take stock of subsequent factual developments. In this respect, the Court observes that the applicant continued to be detained for another four months after the Court had delivered its judgment in the case (see, mutatis mutandis , Wasserman (no. 2), cited above, § 36). 16.     It follows that, in so far as the applicant’s complaint concerns the further period during which he continued to be detained on remand allegedly in the absence of proper reasons for that, it has not been previously examined by the Court. Furthermore, the Court also does not lose sight of the fact that the Presidium of the Supreme Court has explicitly refused to examine the detention orders issued in respect of the applicant after 2   February 2016. The Presidium therefore has failed to take any steps to address the applicant’s continuous detention following the Court’s judgment. The Court therefore has competence ratione materiae and ratione personae to entertain this complaint. Moreover, when assessing the reasonableness of the remaining period between 21 July and 21   November   2016 for the purposes of Article 5 § 3 of the Convention, the Court “can take into consideration the fact that an applicant has previously spent time in custody pending trial” (see Idalov v. Russia [GC], no.   5826/03, §   130, 22   May 2012). 17.     Turning back to all applications in the present case, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 18.     These complaints are therefore admissible and disclose a breach of Article   5 §   3 of the Convention. III.     OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 19.     Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, §§ 122-139, ECHR 2014 (extracts), concerning applicant’s confinement in a metal cage during court hearings in criminal proceedings; Idalov v. Russia (no. 2) , no. 41858/08, 13   December 2016, dealing with poor conditions of applicant’s transport; and Idalov v. Russia [GC], no.   5826/03, §§   154-158, 22 May 2012, related to the lack of a speedy review of detention matters. IV.     REMAINING COMPLAINTS 20.     In applications nos.   45162/13 and 72335/14, the applicants also raised other complaints under various Articles of the Convention. 21.     The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles   34 and   35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article   35   §   4 of the Convention. V.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 22.     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.” 23.     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), as well as taking into account the amount of the award which the Court has already made in favour of the applicant, Mr Shilov (application no. 46121/16), when it found a violation of Article 5 § 3 of the Convention in respect of his first application (see Aristov and 10 others, cited above), the Court considers it reasonable to award the sums indicated in the appended table. 24.     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.     Decides to join the applications;   2.     Declares the complaints concerning the excessive length of pre-trial detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible   and the remainder of the applications nos.   45162/13 and 72335/14 inadmissible;   3.     Holds that these complaints disclose a breach of Article   5   §   3 of the Convention concerning the excessive length of pre-trial detention;   4.     Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);   5.     Holds (a)     that the respondent State is to pay the applicants, 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 14 June 2018, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.   Liv Tigerstedt   Alena Poláčková Acting Deputy Registrar   President APPENDIX List of applications raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no. Date of introduction Applicant name Date of birth   Representative name and location Period of detention Length of detention Courts which issued detention orders/examined appeals   Specific defects Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]     45162/13 24/06/2013 Anatoliy Nikolayevich Kolosyuk 25/07/1981 Falkov Vyacheslav Vladimirovich St Petersburg 16/12/2008 to 10/09/2013 4 year(s) and 8 month(s) and 26 day(s)   Primorskiy District Court of St Petersburg / St Petersburg City Court / Appeal Collegium of St Petersburg City Court - collective detention orders; - fragility of the reasons employed by the courts, as the case progressed; - failure to examine the possibility of applying other measures of restraint, as the case progressed; - failure to conduct the proceedings with due diligence during the period of detention.   4,900     72335/14 01/10/2014 Aleksandr Vasilyevich Govorov 10/07/1977     31/10/2011 to 17/10/2016 4 year(s) and 11 month(s) and 18 day(s)   Vologda Town Court / Cherepovetsk Town Court / Vologda Regional Court - failure to examine the possibility of applying other measures of restraint, as the case progressed; - failure to conduct the proceedings with due diligence during the period of detention.   Art. 3 - use of metal cages and/or other security arrangements in courtrooms during the hearings in criminal proceedings leading to the applicant’s conviction on 17/10/2016 by the Cherepovets Town Court;   Art. 3 - inadequate conditions of detention during transport - van, court premises (31/10/2011-02/06/2016); 0.37 sq. m. and 0.4 sq. m. respectively; the applicant was transported in poor conditions between the detention facility and the courthouse in an overcrowded van.   9,750     46121/16 29/07/2016 Roman Sergeyevich Shilov 18/02/1981 Shukhardin Valeriy Vladimirovich Moscow 06/07/2012 to 21/11/2016 4 year(s) and 4 month(s) and 16 day(s)   Bryansk Regional Court / Appellate Division of the Bryansk Regional Court - failure to examine the possibility of applying other measures of restraint, as the case progressed; - failure to conduct the proceedings with due diligence during the period of detention. Art. 5 (4) - excessive length of judicial review of detention - 87 days on appeal, from 14/03/2016 to 09/06/2016; 50 days on appeal, from 14/12/2015 to 02/02/2016. 520     9902/17 13/01/2017 Sergey Valeryevich Karpov 07/02/1985 Pakin Konstantin Vladimirovich Velikiy Novgorod 02/07/2015 to 30/09/2016 1 year(s) and 2 month(s) and 29 day(s)   Kalininskiy District Court of St Petersburg / St Petersburg City Court - fragility of the reasons employed by the courts; - use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; - failure to assess the applicant’s personal situation reducing the risks of reoffending, colliding or absconding; - failure to examine the possibility of applying other measures of restraint.   1,300     12954/17 30/01/2017 Gabil Zabil Kazymov 07/06/1990 Pakin Konstantin Vladimirovich Velikiy Novgorod 20/02/2015 to 29/03/2017 2 year(s) and 1 month(s) and 10 day(s)   Novgorodskiy District Court of the Novgorod Region / Borovichi Town Court of the Novgorod Region / Pestovskiy District Court of the Novgorod Region / Novgorod Regional Court - fragility of the reasons employed by the courts, as the case progressed; - failure to examine the possibility of applying other measures of restraint, as the case progressed; - failure to conduct the proceedings with due diligence during the period of detention.   2,200   [1] .     Plus any tax that may be chargeable to the applicants.