CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 janvier 2022

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RUSSIA (Applications nos. 50956/15 and 37964/17)             JUDGMENT   STRASBOURG 11 January 2022 This judgment is final but it may be subject to editorial revision. In the case of Lepeshkina and Shilov 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 Olga Chernishova, Deputy Section Registrar, Having regard to: the applications (nos.   50956/15 and 37964/17) 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 two Russian nationals, Ms Anna Vladimirovna Lepeshkina and Mr Roman Sergeyevich Shilov (“the applicants”), on 9   October 2015 and 27 April 2017, respectively; the decisions of 18 September 2017 and 10 May 2019 respectively to give notice of the applications to the Russian Government (“the Government”), initially represented by Mr M.   Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and lately by his successor in that office, Mr   M.   Vinogradov; the parties’ observations; Having deliberated in private on 7 December 2021, Delivers the following judgment, which was adopted on that date: SUBJECT-MATTER OF THE CASE 1.     The applications concern the applicants’   right to liberty and security of person. The applicants were arrested on suspicion of different crimes. The courts placed them under house arrest or under house arrest and pre-trial detention. They allege that the courts failed to provide relevant and sufficient reasons for the house arrest (see   Buzadji   v.   the Republic of Moldova   [GC], no.   23755/07, §§ 104-105, ECHR 2016 (extracts)). 2.     Ms Lepeshkina (application no. 50956/15) also complains about delayed review of her appeals against house-arrest orders (see,   mutatis mutandis ,   Pichugin   v.   Russia , no.   38623/03, §§ 148-56, 23 October 2012). Lepeshkina v . Russia ( application no. 50956/15) 3.     The applicant was born in 1989 and lives in Moscow. 4.     On 20 August 2014 the applicant was arrested on suspicion of banditry and vandalism. On the next day the Taganskiy District Court of Moscow ordered to place her under house arrest. It was subsequently extended by the District Court on 14 October, 17 November 2014, 19 January, 16 March, 15   May and 17 July 2015. 5 .     On 16   October and 20   November 2014, and 21 January, 19   March and 18   May 2015 she contested the court orders of 14   October, 17   November 2014 and 19 January, 16 March and 15 May 2015, respectively. On   12   November, 22 December 2014, 18 March, 20 April, 25 June 2015, respectively, the Moscow City Court upheld them on appeal. 6.     On 10 September 2015 the District Court acquitted the applicant. On 17 December 2015 the City Court upheld the verdict on appeal. 7 .     On 18 April 2016 the Simonovskiy District Court of Moscow awarded her 100,000 roubles (RUB) in non-pecuniary damage for the unlawful prosecution. 8 .     On 16 September 2016 the Taganskiy District Court of Moscow awarded her RUB 667,021.48 in pecuniary damage for the unlawful prosecution. Shilov v . Russia ( application no . 37964/17) 9.     The applicant was born in 1981 and lives in Seltso, Bryansk Region. 10.     On 6 July 2012 the applicant was arrested on suspicion of multiple offences, including drug-related crimes, smuggling and organisation or participation in a criminal organisation. On the same day the Bryansk Regional Court remanded him in custody. His pre-trial detention was subsequently extended on multiple occasions. 11.     On 21 November 2016 the Regional Court replaced the applicant’s pre-trial detention with house arrest. It was subsequently extended by the Regional Court on multiple occasions. 12.     On 24 January 2019 the Regional Court acquitted the applicant, following the non-guilty verdict of the jury. JOINDER OF THE APPLICATIONS 13.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 14.     The applicants complained that their house arrest had been unjustified and excessively long. They relied on 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.” Admissibility 15.     The Government argued that the applicants could no longer be regarded as victims in view of their acquittal. They further submitted that the applicants were entitled to “rehabilitation” following their acquittal, where they had the possibility to obtain redress and compensation for any pecuniary and non-pecuniary damage. As the applicants failed to file a rehabilitation claim, their complaint should be rejected as inadmissible for non-exhaustion of domestic remedies. 16.     The applicants contested the Government’s argument. They argued that in the “rehabilitation” proceedings, the authorities did not have to examine, still less acknowledge, at least in substance, that the detention had been formally defective, or that it had been based on insufficient reasoning, or had exceeded a reasonable time. Ms Lepeshkina further claimed that she had benefitted from the rehabilitation procedure and she was awarded in total around RUB   750,000 (paragraphs 7-8 above). However, in her opinion, it did not cover any deficiencies during her house arrest. 17.     The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France , 25 June 1996, § 36, Reports 1996-III, and   Dalban v.   Romania   [GC], no.   28114/95, § 44, ECHR 1999-VI). 18.     The Court finds that the award of compensation within the rehabilitation procedure is subject to   the   fulfilment of specific conditions not required under Article 5   §   3, specifically the applicant’s acquittal or the discontinuation of the proceedings. These   grounds   for compensation do not correspond to the basis of the applicants’ complaints under Article 5   §   3 and the alleged violation could not therefore be redressed in these proceedings (see, mutatis mutandis , Lyubushkin v. Russia , no.   6277/06, §§   49-52, 22 October 2015, with further references). 19.     Accordingly, in the absence of acknowledgement that the applicants’ house arrest had been excessive in its duration or that the court orders were not based on relevant and sufficient   reasoning, the payment of compensation, if any, inter alia , for the time the applicant spent in detention pending trial is not sufficient to deprive them of their status as a “victim” of a violation of Article 5   §   3   of the Convention, within the meaning of Article 34. The Court dismisses the Government’s objection. 20.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) and that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 21.     The Court reiterates that house arrest is considered to amount to deprivation of liberty within the meaning of Article   5 of the Convention, and it requires relevant and sufficient reasons (see Buzadji v.   the   Republic of Moldova [GC], no. 23755/07, § 104 and § 113, 5 July 2016). It further reiterates that it makes no distinction between pre-trial detention and house arrest and applies the same criteria when assessing the reasonableness of their length (ibid. §§   113-14). 22.     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). 23.     In the leading case against Russia concerning pre-trial detention Dirdizov v. Russia (no.   41461/10, 27   November 2012), the Court has already found a violation in respect of the issues similar to those in the present case. 24.     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. Even though in the instant case the length of the applicants’ house arrest was not necessarily excessive by itself (one   year and twenty   days (from 21 August 2014 to 10 September 2015) for the first applicant, and slightly over two years and two months (from 21 November 2016 to 24 January 2019), for the second applicant), the Court considers that the reasons invoked by the domestic courts for ordering and prolonging the applicants’ house arrest were stereotyped and abstract. Their decisions cited the grounds without showing how they applied   concretely   to   the specific circumstances of   the applicants’ case. With the passing of time,   the courts’   reasoning did not evolve to reflect the state of the   investigation and to verify whether the grounds for house arrest remained valid.   Finally, the domestic courts did not analyse the prospect of applying more lenient preventive measures (compare with Razvozzhayev v.   Russia and Ukraine and Udaltsov v. Russia , nos.   75734/12 and 2 others, §§   212-19, 19   November 2019). 25.     Having regard to its case-law in similar cases and to the facts of the present case, the Court finds that there has been a violation of Article 5 § 3 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 26.     Ms Lepeshkina complained that   the appeals she had lodged against the house-arrest orders (see paragraph 5 above) had not been examined speedily,   in contravention of Article   5   §   4 of the Convention. These complaints are covered by the well ‑ established case-law of the Court. 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 grounds. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they disclose a violation of Articles 5 § 4 of the Convention in the light of its findings in the following judgments (see, mutatis mutandis , Idalov v. Russia [GC], no. 5826/03, §§   154-58, 22 May 2012, with further references, and Mamedova   v. Russia , no.   7064/05, §   96, 1   June 2006,   where   the length of   appeal proceedings lasting,   inter alia,   twenty-six days,   was   found to be in breach of   the “speediness” requirement of Article   5   §   4). APPLICATION OF ARTICLE 41 OF THE CONVENTION Damage 27.     Ms Lepeshkina claimed 3,000 euros (EUR) and Mr Shilov claimed EUR   15,000 in respect of non ‑ pecuniary damage. 28.     The Government reiterated their argument that compensation for any pecuniary and non-pecuniary damage could have been obtained at the domestic level. They further considered the applicants’   claims excessive and incompatible   with   the Court’s case-law. 29.     Having regard to its case-law, the Court considers it appropriate to award Ms Lepeshkina EUR 1,400 and Mr Shilov EUR 2,200 in respect of non-pecuniary damage, plus any tax that may be chargeable on the applicants. Costs and expenses 30.     Ms Lepeshkina did not make any claims in respect of costs and expenses, while Mr   Shilov further claimed 140,000 roubles (EUR   1,750). 31.     The Government considered the applicant’s   claims excessive and incompatible   with   the Court’s case-law. 32.     An applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum   (see   Merabishvili v.   Georgia   [GC], no.   72508/13, §§   370-71, 28   November 2017). Having regard to the material in its possession, the Court considers it reasonable to award the applicant EUR 850, plus any tax that may be chargeable to the applicant. 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, Decides to join the applications; Declares the applications admissible; Holds that there has been a violation of Article 5 § 3 of the Convention in respect of both applicants; Holds that there has been a violation of Article 5 § 4 of the Convention in respect of Ms Lepeshkina; Holds (a)   that the respondent State is to pay the applicants, 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 1,400 (one thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to Ms   Lepeshkina; (ii)   EUR 2,200 (two thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to Mr   Shilov; (iii)   EUR   850 (eight hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses to Mr   Shilov; (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 the applicants’ claim for just satisfaction. Done in English, and notified in writing on 11 January 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Olga Chernishova   Peeter Roosma   Deputy Registrar   President