CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 2 décembre 2021

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RUSSIA (Application no. 42787/11)             JUDGMENT   STRASBOURG 2 December 2021   This judgment is final but it may be subject to editorial revision. In the case of Yevdokimov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Peeter Roosma, President,   Dmitry Dedov,   Andreas Zünd, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 10   November 2021, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application against Russia lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 July 2011. 2.     The applicant was represented by Ms Shaysipova, a lawyer practising in Tambov. 3.     The Russian Government (“the Government”) were given notice of the application. THE FACTS 4.     The applicant’s details and information relevant to the application are set out in the appended table. 5.     The applicant complained of deficiencies in proceedings for review of the lawfulness of his detention. He also raised complaints under other provisions of the Convention. THE LAW alleged violation of articles 3 and 13 OF THE CONVENTION 6.     The Government submitted a unilateral declaration whereby they acknowledged that the conditions of the applicant’s detention from 23   September 2010 to 21   April 2011 had not been compatible with the requirements set out in Article   3 of the Convention and that the applicant had not had an effective domestic remedy in respect of that complaint about the conditions of detention in violation of Article   13 of the Convention. They offered to pay the applicant 2,871 euros (EUR) and invited the Court to strike the application out of the list of cases in accordance with Article 37 §   1 (c) of the Convention. The said 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 this 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. 7.     The Court has not received a response from the applicant accepting 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”. 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, Tahsin Acar v. Turkey (preliminary issue) [GC], no.   26307/95, §§   75-77, ECHR 2003-VI). 9.     The Court has established clear and extensive case-law concerning inadequate conditions of detention (see, among other numerous authorities, Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, 10   January 2012). 10.     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 relevant part of the application (Article 37 § 1 (c)). 11.     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 application in that part (Article 37 § 1 in fine). 12.     Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application 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). 13.     In view of the above, it is appropriate to strike out this part of the application of the list. ALLEGED VIOLATION OF ARTICLE 5 §   4 of the Convention 14.     The applicant complained that he had been unable to obtain a judicial review of his detention pending expulsion. He relied on Article   5   §   4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 15.     The Court reiterates that the purpose of Article   5   §   4 of the Convention is to ensure for arrested and detained individuals the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, among other authorities, Azimov v.   Russia , no.   67474/11, §   150, 18 April 2013). When examining similar complaints against Russia, the Court has already found a violation of Article   5   §   4 on account of the absence, at the relevant time, of any domestic legal provision which could have allowed a detainee to bring proceedings for judicial review of his or her detention pending expulsion (see, for example, Kim v.   Russia , no. 44260/13, §§   39-43, 17 July 2014, Rakhimov v.   Russia , no.   50552/13, §§ 147-50, 10 July 2014, and Akram Karimov v.   Russia , no.   62892/12, §§   199-204, 28 May 2014). 16.     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 this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant has not had at his disposal a procedure for a judicial review of the lawfulness of his detention pending expulsion. 17.     This complaint is therefore admissible and discloses a breach of Article   5 § 4 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 18.     The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see the 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 well-established case-law (see Khalikov v. Russia , no. 66373/13, §§   69-76, 26   February 2015, concerning the authorities’ failure to indicate the time-limit in respect of the detention pending expulsion). REMAINING COMPLAINTS 19.     The applicant also raised other complaints under the Convention. 20.     The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matter complained of are within its competence, this complaint either does not meet the admissibility criteria set out in Articles   34 and   35 of the Convention or does 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 application 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, Oravec v. Croatia, no. 51249/11, §§   78-80, 11   July 2017, Ayboğa and Others v. Turkey, no. 35302/08, §§   28-30, 21   June 2016, Doherty v. the United Kingdom, no. 76874/11, §§   113-15, 18   February 2016, and Albrechtas v. Lithuania, no. 1886/06, §§   87-89, 19   January 2016), the Court considers it reasonable to award the applicant EUR   1,400 in just satisfaction, as indicated in the appended table. 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,   having regard to the terms of the Government’s declaration,   and   the arrangement for ensuring compliance with the undertakings referred   to therein, to strike the application out of its list of cases in accordance   with Article 37 § 1 (c) of the Convention in so far as it concerns the   complaints under Articles   3 and 13 of the Convention related to the period of detention from 23 September 2010 to 21   April 2011; Declares the complaints concerning the deficiencies in proceedings for review of the lawfulness of 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 application inadmissible; Holds that there has been a violation of Article 5 § 4 of the Convention; 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 the appended table); Holds (a)   that the respondent State is to pay the applicant, within three months, the amount 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 amount 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 2 December 2021, pursuant to Rule   77   §§   2 and   3 of the Rules of Court. Viktoriya Maradudina   Peeter Roosma Acting Deputy Registrar   President APPENDIX Application raising complaints under Article 5 § 4 of the Convention (deficiencies in proceedings for review of the lawfulness of detention) Application no. Date of introduction Applicant’s name Year of birth   Representative’s name and location First-instance court and date of detention order Procedural deficiencies Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1] 42787/11 01/07/2011 Yuriy Vladimirovich YEVDOKIMOV 1989 Shaysipova Valentina Alekseyevna Tambov Umetskiy District Court of the Tambov Region, 23/09/2010; until the release on 27/04/2011 lack of periodic review of detention (Khalikov v.   Russia, no.   66373/13, §§   61-66, 26   February 2015) Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - The applicant’s detention from 23/09/2010 to 27/04/2011 for the purpose of administrative removal was based on a judicial decision which did not establish the time-limit for detention ( Khalikov , cited above, §§   69-76) 1,400   and   2,871 (under the unilateral declaration of the Government)   [1] Plus any tax that may be chargeable to the applicant.