THIRD SECTION

CASE OF ANTSIFEROV AND NOVIKOV v. RUSSIA

(Applications nos. 10387/07 and 1372/10)

JUDGMENT

STRASBOURG

22 November 2016

This judgment is final but it may be subject to editorial revision.
In the case of Antsiferov and Novikov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Helena Jäderblom, President,
	Dmitry Dedov,
	Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 3 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in two applications (nos. 10387/07 and 1372/10) 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, Mr Pavel Anatolyevich Antsiferov and Mr Sergey Ivanovich Novikov (“the applicants”), on 22 December 2006 and 27 November 2009 respectively.
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 16 March 2015 the complaints concerning the length of pre-trial detention and review of detention were communicated to the Government and the remainder of the applications was declared inadmissible.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
Section 1.01	A.  Common facts
4.  The applicants were prosecuted in Russia for crimes. They were arrested and detained while the crimes were investigated and pending trial. Their detention was ordered and extended by the courts. The detention orders were essentially based on the gravity of the charges, the primary grounds being the risk of the applicants’ absconding and interfering with the course of justice. The detention and extension orders used stereotypical formulae, without addressing specific facts or considering alternative preventive measures.
Section 1.02	B.  Facts specific to each application
(a)	1.  The case of Mr Antsiferov
5.  The first applicant was born on 20 August 1983 and lived, prior to his arrest, in Yekaterinburg, Sverdlovsk Region. The applicant was arrested on 30 March 2005 on suspicion of fraud and placed in detention. He remained in custody pending investigation and trial.
6.  On 19 April and 14 July 2006 his pre-trial detention was extended. His appeals against these detention orders were considered on 23 July and 3 November 2006 respectively. The applicant and his lawyer did not attend the hearing on 19 April 2006.
7.  On 23 October 2006 the Leninskiy District Court of Yekaterinburg convicted the applicant of fraud and sentenced him to three years’ imprisonment.
(b)	2.  The case of Mr Novikov
8.  The second applicant was born on 2 November 1972 and lived, prior to his arrest, in Vorkuta, Komi Republic. The applicant was arrested on 14 January 2008. He remained in custody pending investigation and trial.
9.  On 5 June and 2 September 2009 the applicant’s pre-trial detention was extended. His appeals against these detention orders were examined on 24 July and 30 October 2009. The applicant and his lawyer were not present at the hearings on 24 July, 2 September and 30 October 2009.
10.  On 6 November 2009 the Vorkuta Town Court of the Komi Republic convicted him of drug dealing and sentenced him to fourteen years and nine months’ imprisonment and a fine.
Article II.	II.  JOINDER OF THE APPLICATIONS
11.  Having regard to the similarity of the main issues under the Convention in the above cases, the Court decides to join the applications and examine them in a single judgment.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
12.  The applicants complained that the duration of their pre-trial detention had been excessive and in breach of Article 5 § 3 of the Convention, which reads:
“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.”
Section 3.01	A.  The parties’ submissions
13.  By letters submitted on 18 May 2015, the Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issue raised by the applicants. They further requested the Court to strike out the applications, in accordance with Article 37 of the Convention.
14.  In the declarations, the Government acknowledged that the applicants’ pre-trial detention had been in violation of Article 5 § 3 of the Convention and stated their readiness to pay the following amounts of compensation:
(a)  1,900 euros (EUR) to Mr Antsiferov for his pre-trial detention from 30 March 2005 to 23 October 2006 (1 year, 6 months, and 24 days);
(b)  EUR 2,200 to Mr Novikov for his pre-trial detention between 14 January 2008 and 6 November 2009 (1 year, 9 months, and 23 days).
15.  The remainder of their declarations provided as follows:
“The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from 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.
This payment will constitute the final resolution of the case.”
16.  The applicants rejected the Government’s offers. They expressed the view that the sums mentioned in the Government’s declarations were insufficient.
Section 3.02	B.  The Court’s assessment
17.  The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. In particular, Article 37 § 1 (c) of the Convention enables the Court 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”.
18.  It also observes that in certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration submitted by a respondent Government.
19.  To that end, the Court will carefully examine the declarations in the light of the principles established in its case-law, in particular in Tahsin Acar v. Turkey ([GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; also see WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
20.  The Court notes at the outset that since its first judgment concerning the excessive length of pre-trial detention in Russia (see Kalashnikov v. Russia, no. 47095/99, §§ 104-21 ECHR 2002-VI), it has found a violation of Article 5 § 3 of the Convention on account of excessively long pre-trial detention without proper justification in more than a hundred cases against Russia (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 200, 10 January 2012). Accordingly, the complaint raised by the applicants is based on clear and extensive Court case-law.
21.  As regards the nature of the admissions contained in the Government’s declarations, the Court is satisfied that the Government have not disputed the allegations made by the applicants and have explicitly acknowledged that their pre-trial detention was in breach of Article 5 § 3 of the Convention.
22.  As to the intended redress to be provided to the applicants, the Court is satisfied that the amount of compensation proposed is consistent with the amounts awarded in similar cases (see Yuriy Yakovlev v. Russia, no. 5453/08, § 95, 29 April 2010; Valeriy Kovalenko v. Russia, no. 41716/08, § 67, 29 May 2012; or Kislitsa v. Russia, no. 29985/05, § 49, 19 June 2012).
23.  The Court therefore considers that it is no longer justified to continue the examination of this complaint. The Court is satisfied that respect for human rights as defined in the Convention (Article 37 § 1 in fine) does not require it to continue the examination of this part of the applications. In any event, the Court’s decision is without prejudice to any decision it might take to restore the applications to its list of cases, pursuant to Article 37 § 2 of the Convention, should the Government fail to comply with the terms of their unilateral declarations (see Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006, and Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
24.  In view of the above, it is appropriate to strike this part of the applications out of the list in accordance with Article 37 § 1 (c) of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
25.  The applicants complained that their appeals against detention orders had not been considered speedily and that the authorities had failed to ensure their participation in detention proceedings. They relied on Article 5 § 4 of the Convention which provides:
“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.”
Section 4.01	A.  Admissibility
26.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
Section 4.02	B.  Merits
27.  The Court will examine the merits of the applicants’ complaints under Article 5 § 4 of the Convention in the light of the applicable general principles set out in, among others, Idalov v. Russia [GC] (no. 5826/03, §§ 154-55, 161, 22 May 2012, with further references).
(a)	1.  Speediness of review
28.  The first applicant, Mr Antsiferov, alleged that his appeals against detention orders of 19 April 2006 and 14 July 2006 had not been decided “speedily”, the appeal hearings being held on 23 June 2006 and 3 November 2006 respectively.
29.  The second applicant, Mr Novikov, alleged that his appeal against the detention order of 2 September 2009 had been considered only on 30 October 2009.
30.  The Government did not comment.
31.  The Court notes that the parties did not indicate the dates on which the applicants filed appeals against the above detention orders. Even assuming that the applicants lodged them on the last day of the ten days’ prescription periods, it took the appeal courts 1 month and 24 days and 3 months and 11 days (in Mr Antsiferov’s case) and 1 month and 17 days (in Mr Novikov’s case) to examined the appeals.
32.  In the Court’s opinion, the issues before the appeal courts were not overly complex. Nor is there anything in the material before the Court to suggest that either the applicant or his counsel contributed to the length of the appeal proceedings. Moreover, the Government did not provide any justification for the time it took the domestic courts to review the applicant’s pre-trial detention. Accordingly, the entire length of the appeal proceedings in the present case was attributable to the authorities. The Court further reiterates that where an individual’s personal liberty is at stake, it has very strict standards concerning the State’s compliance with the requirement of speedy review of the lawfulness of detention (see, for example, Kadem v. Malta, no. 55263/00, §§ 44-45, 9 January 2003, where the Court considered a time-period of seventeen days in deciding on the lawfulness of the applicant’s detention to be excessive, 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 of the Convention).
33.  Having regard to the above, the Court considers that the appeal proceedings for the review of the lawfulness of the applicants’ pre-trial detention cannot be considered compatible with the “speediness” requirement of Article 5 § 4 of the Convention. There has therefore been a violation of that provision.
(b)	2.  Attendance of detention hearings
34.  In view of the above findings, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 5 § 4 of the Convention in respect of authorities’ failure to ensure the applicants’ presence at the detention hearings.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
35.  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.”
Section 5.01	A.  Damage
36.  Mr Ansiferov claimed EUR 15,000 as just satisfaction. Mr Novikov asked to award him fair compensation.
37.  The Government did not comment.
38.  The Court considers that the applicants must have suffered distress and frustration as a result of the violations of their rights. Having regard to the nature of the violation found, and making its assessment on an equitable basis, the Court awards EUR 4,600 to Mr Antsiferov and EUR 4,300 to Mr Novikov in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
Section 5.02	B.  Costs and expenses
39.  The applicants did not claim reimbursement of any costs and expenses.
Section 5.03	C.  Default interest
40.  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.  Decides, having regard to the terms of the Government’s declarations, and the arrangements for ensuring compliance with the undertakings referred to therein, to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaint under Article 5 § 3 of the Convention;

3.  Declares the complaint concerning the review of pre-trial detention admissible;

4.  Holds that there has been a violation of Article 5 § 4 of the Convention on account of the failure to examine speedily the applicants’ appeals against the detention orders of 19 April 2006, 14 July 2006 and 2 September 2009;

5.  Holds that it is not necessary to examine the complaints about attendance of detention hearings under Article 5 § 4 of the Convention;

6.  Holds
(a)  that the respondent State is to pay, within three months, EUR 4,600 (four thousand six hundred euros) to Mr Antsiferov and EUR 4,300 (four thousand tree hundred euros) to Mr Novikov, plus any tax that may be chargeable, 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;

7.  Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 22 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helena Jäderblom
	Deputy Registrar	President