CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 janvier 2020

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RUSSIA (Applications nos. 34645/17 and 8 others – see appended list)           JUDGMENT   STRASBOURG 16 January 2020         This judgment is final but it may be subject to editorial revision.   In the case of Digay and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Alena Poláčková, President,   Dmitry Dedov,   Gilberto Felici, judges, and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 12 December 2019, 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 Russian Government (“the   Government”) were given notice of the applications. 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 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. 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 reads as follows: Article   5   §   3 “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 As concerns applications nos. 2974/18 and 3654/18, the Court would like to stress that these are the second applications lodged by Mr Yurtayev and Mr Kamenev, respectively, concerning the same lengthy detention on remand. The Court has already found a violation of Article 5 § 3 of the Convention, on account of their on-going unreasonably long detention on remand, in respect of the first application (no. 47013/16) lodged by Mr   Yurtayev on 12 July 2016 (see Belyayev and others v Russia [Committee], nos. 49132/10 and 5 others, 9 November 2017) and in respect of the first application (no. 11743/16) lodged by Mr Kamenev on 16   February 2016 (see Shirokikh and others v Russia [Committee], nos.   30532/07 and 6 others, 6 July 2017). Following those judgments by the Court, the two applicants remained in detention pending trial proceedings against them until their conviction on 18   December 2017. In December   2017, which is within six months from the final order authorising the extension of their detention on remand, the applicants lodged the present applications with the Court (for further details see the appended table below). 9.     The Government did not make any observations in this respect. The Court 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). 10.     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). 11.     The Court observes that the first applications lodged by the two applicants (cited above) concerned their excessively long detention on remand. When the Court delivered its judgments on 6 July and 9   November   2017, finding a violation of Article 5 § 3 of the Convention and making an award in respect of the period preceding its judgments, the applicants were still in detention on remand. 12.     The present applications, which the applicants lodged in December   2017, concern their continuous detention on remand in the period subsequent to the Court’s judgments of 6 July and 9 November 2017. 13.     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 cases brought by the applicants. It may, nevertheless, take stock of subsequent factual developments. In this respect, the Court observes that the applicants continued to be detained for another month and a half and five months, respectively, after the Court had delivered its judgment in those cases (see, mutatis mutandis , Wasserman (no. 2), cited above, § 36). 14.     It follows that, in so far as the applicants’ complaint concerns the further period during which they continued to be detained on remand allegedly in the absence of proper reasons therefor, it has not been previously examined by the Court. The Court therefore has competence ratione materiae and ratione personae to entertain this complaint. 15.     Moreover, when assessing the reasonableness of the remaining period between the delivery of the Court’s judgments (see paragraph 8 above) and the end of the applicants’ detention on remand 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; for similar approach by the Court see Kolosyuk and Others v. Russia [Committee], nos.   45162/13 and 4 others, 14 June 2018). 16.     As concerns all of the applications in the present case, the Court notes that in the leading case of Dirdizov v. Russia, no. 41461/10, 27   November 2012, it already found a violation in respect of issues similar to those in the present case. 17.     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. Having regard to its case-law on the subject, the Court rejects the Government’s objections made to the present applications and 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. REMAINING COMPLAINTS 19.     In applications nos.   34645/17, 46226/17 and 61310/17, the applicants also raised other complaints under various Articles of the Convention. 20.     The Court has examined these applications 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.   APPLICATION OF ARTICLE 41 OF THE CONVENTION 21.     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.” 22.     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), the Court considers it reasonable to award the sums indicated in the appended table. It dismisses the remainder of the claims for just satisfaction submitted by the applicant in application no. 61310/17. 23.     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, Decides to join the applications; Declares the complaints concerning the excessive length of pre-trial detention admissible,   and the remainder of applications nos.   34645/17, 46226/17 and 61310/17 inadmissible; Holds that these complaints disclose a breach of Article   5   §   3 of the Convention concerning the excessive length of pre-trial detention; 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 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. Dismisses the remainder of claims for just satisfaction lodged by the applicant in application no. 61310/17. Done in English, and notified in writing on 16 January 2020, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.   Liv Tigerstedt   Alena Poláčková Acting Deputy Registrar   President   APPENDIX Application raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no. Date of introduction Applicant’s name Date of birth   Representative’s name and location Period of detention Court which issued detention order/examined appeal Length of detention Specific defects Amount awarded for pecuniary and non ‑ pecuniary damage and costs and expenses per applicant (in euros) [i]     34645/17 06/04/2017 Nataliya Sergeyevna Digay 19/02/1980 Pyatitskiy Yevgeniy Fedorovich Rostov-na-Donu 08/04/2016 Pending Leninskiy District Court of Rostov-on-Don; Rostov Regional Court More than 3   year(s) and 6 month(s) and 9 day(s)   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 re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention. 4,800     46226/17 09/06/2017 Oksana Pavlovna Murashova 29/08/1974 Yershova Yelena Viktorovna Moscow 31/08/2016 Pending Presnenskiy District Court of Moscow; Zamoskvoretskiy District Court of Moscow; Moscow City Court More than 3   year(s) and 1 month(s) and 17 day(s)   Collective detention orders; 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 re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention. 4,200     61310/17 11/08/2017 Aleksandr Yevgenyevich Abrosimov 23/09/1985     17/03/2016 to 10/12/2017 Tsentralnyy District Court of Volgograd; Traktorozavdskiy District Court of Volgograd; Volgograd Regional Court 1 year(s) and 8 month(s) and 24 day(s)   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 re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention. 2,500     74561/17 12/10/2017 Mikhail Dmitriyevich Popov 02/03/1988 Druzhkova Olga Vladimirovna Moscow 29/01/2017 to 03/10/2018 Prigorodnyy District Court of the Nothern Osetiya-Alaniya Republic; Supreme Court of the Northern Osetiya-Alaniya Republic 1 year(s) and 8 month(s) and 5 day(s)   Use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to examine the possibility of applying other measures of restraint; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; failure to conduct the proceedings with due diligence during the period of detention. 2,500     79072/17 01/11/2017 Aleksandr Vladimirovich Khachemizov 10/05/1978     01/03/2012 Pending Supreme Court of the Republic of Komi More than 7   year(s) and 7 month(s) and 16 day(s)   Collective detention orders; failure to conduct the proceedings with due diligence during the period of detention; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding as the case progressed. 10,100     2974/18 22/12/2017 Aleksey Aleksandrovich Yurtayev 25/07/1975     24/09/2013 to 18/12/2017 Yelabuga Town Court of the Tatarstan Republic; Supreme Court of the Tatarstan Republic 4 year(s) and 2 month(s) and 25 day(s)   By final judgment of 09/11/2017 the Court already found a violation of Article 5 § 3 of the Convention in respect of the applicant’s detention within the same set of the criminal proceedings. Starting from his arrest and following the Court’s judgment of 09/11/2017 the applicant continued being detained on remand with his detention regularly extended until his conviction (see §§ 9-15 above). Collective detention orders; 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 re-offending, colluding or absconding as the case progressed; failure to conduct the proceedings with due diligence during the period of detention. 150     3654/18 21/12/2017 Yevgeniy Aleksandrovich Kamenev 21/04/1975     28/02/2014   to 18/12/2017 Yelabuga Town Court of the Tatarstan Republic; Supreme Court of the Tatarstan Republic 3 year(s) and 9 month(s) and 21 day(s)   By final judgment of 06/07/2017 the Court already found a violation of Article 5 § 3 of the Convention in respect of the applicant’s detention within the same set of the criminal proceedings. Starting from his arrest and following the Court’s judgment of 06/07/2017 the applicant continued being detained on remand with his detention regularly extended until his conviction (see §§ 9-15 above). Collective detention orders; failure to conduct the proceedings with due diligence during the period of detention; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice as the case progressed; fragility of the reasons employed by the courts; failure to examine the possibility of applying other measures of restraint. 900     21502/18 11/04/2018 Andrey Vissarionovich Sanukov 22/08/1978     20/01/2016 Pending Privolzhskiy District Court of Kazan; Supreme Court of the Tatarstan Republic More than 3   year(s) and 8 month(s) and 27 day(s)   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 re-offending, colluding or absconding; failure to conduct the proceedings with due diligence during the period of detention. 5,100     23815/18 16/05/2018 Vitaliy Aleksandrovich Fabryy 12/07/1977     15/02/2017 Pending Leninskiy District Court of Rostov-on-Don; Rostov Regional Court More than 2   year(s) and 8 month(s) and 2 day(s)   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 re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint. 3,800     [i] .     Plus any tax that may be chargeable to the applicants.