THIRD SECTION

CASE OF MANEROV v. RUSSIA

(Application no. 49848/10)

JUDGMENT

STRASBOURG

5 January 2016

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Manerov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Luis López Guerra, President,
	Helena Jäderblom,
	Helen Keller,
	Johannes Silvis,
	Dmitry Dedov,
	Branko Lubarda,
	Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 8 December 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 49848/10) 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 a Russian national, Mr Aleksandr Vyacheslavovich Manerov (“the applicant”), on 25 July 2010.
2.  The applicant was represented by Mr R. Ryabiy, a lawyer practising in Vladivostok. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3.  The applicant alleged, in particular, that the domestic court had discontinued his appeal against the decision of 15 February 2010 rejecting his application for release, and that the examination of his appeal against the custody order of 22 March 2010 had not been speedy.
4.  On 27 August 2013 the above complaints were communicated to the Government under Article 5 § 4 of the Convention and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant, a former military unit commander, was born in 1963 and lives in Vladivostok.
6.  On 28 May 2008 the applicant was arrested on suspicion of fraud.
7.  On 30 May 2008 he was released having given an undertaking not to leave his place of residence.
8.  On 1 July 2009 the Military Court of the Vladivostok Garrison (the Garrison Court) convicted the applicant of fraud committed in abuse of position and sentenced him to four years’ imprisonment with a dishonourable discharge. The applicant was arrested in the courtroom and placed in a remand prison.
9.  On 29 January 2010 the Military Court of the Pacific Fleet (the Fleet Court) quashed the conviction on appeal and ordered a retrial. The court held that the custodial measure applied to the applicant should remain unchanged until 1 April 2010 in view of the seriousness of the charges against him, and the risk of his absconding and threatening witnesses, a risk confirmed by the statements of Sh., a witness.
10.  On 15 February 2010 the Garrison Court rejected the applicant’s application for release, including in its reasoning the seriousness of the charges and the risk of the applicant absconding and exerting pressure on witnesses. The decision mentioned that it could be appealed against within a three-day time-limit to the Fleet Court. The applicant appealed.
11.  However, on 26 March 2010 the Fleet Court discontinued the appeal proceedings against the decision of 15 February 2010. Relying on Article 355 § 5 (2) of the Russian Code of Criminal Procedure, the court held that the refusal of an application for release was not amenable to a separate appeal before the final decision in the case, as it was not in breach of the applicant’s right to access to a court and his right to have the case heard within a reasonable time, and did not delay the progress of the proceedings.
12.  In the meantime, on 22 March 2010 the Garrison Court extended the applicant’s detention until 1 July 2010. The court again mentioned the seriousness of the charges against the applicant in its reasoning. It further held, with reference to a medical report, that the applicant’s state of health allowed him to participate in the proceedings, and that his judge-ordered removal from the courtroom until the end of the proceedings due to unacceptable behaviour gave sufficient grounds to believe that, if released, he might influence the witnesses and abscond from justice.
13.  On 25 March 2010 a copy of the extension order of 22 March 2010 was handed over to the applicant after the three-day time-limit for lodging an appeal against it had expired.
14.  On 27 March 2010 the applicant lodged his appeal against the extension order of 22 March 2010.
15.  On 8 April 2010 the Garrison Court renewed the time-limit for the applicant to lodge his appeal against the extension order of 22 March 2010.
16.  On 21 April 2010 the applicant’s appeal was submitted to the Fleet Court for examination. On the same day the Fleet Court scheduled the hearing for 23 April 2010, to be held by video link, and sent notification to the remand prison where the applicant was being held.
17.  On 23 April 2010 the applicant was informed of the examination of his appeal before the Fleet Court. He requested an adjournment of the hearing because of the late notification. The applicant also asked the Fleet Court to ensure his physical presence at the examination of the appeal as a hearing impairment condition prevented him from following effectively the examination of his appeal by video link.
18.  On 23 April 2010 the Fleet Court granted the applicant’s request and adjourned the examination of his appeal against the custody order of 22 March 2010 until 30 April 2010.
19.  On 29 April 2010 the Garrison Court convicted the applicant of nine counts of fraud committed in abuse of office and sentenced him to four years’ imprisonment with a dishonourable discharge.
20.  On 30 April 2010 the Fleet Court upheld on appeal the custody order of 22 March 2010.
21.  On 2 December 2010 the Fleet Court discontinued the appeal proceedings against the judgment of 29 April 2010 as the applicant had withdrawn his request for reconsideration.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
A.  Code of Criminal Procedure of the Russian Federation
22.  A judge’s decision on detention is amenable to appeal before a higher court within three days of its delivery date. Having received a file, the second-instance court should examine the appeal lodged against the judge’s decision on detention within three days (Article 108 § 11).
23.  Procedural decisions rendered by a court in the course of a trial in response to requests lodged by a party to the trial proceedings are not amenable to separate appeal (Article 355 § 5 (2)).
B.  Case-law of the Constitutional Court of the Russian Federation
24.  In its decision no. 44-O of 6 February 2004, the Constitutional Court held as follows:
“3.  In accordance with Article 355 § 5 (2) of the Code of Criminal Procedure of the Russian Federation, [procedural decisions] rendered by the court in the course of a trial granting or rejecting requests [lodged] by parties to the trial proceedings are not amenable to [a separate] appeal.
This approach is consistent with the judicial opinion of the Constitutional Court of the Russian Federation, as shown in its ruling of 2 July 1998 ... pursuant to which, in order to secure the independence of the court, the lawfulness and reasoning of intermediate court decisions can only be challenged once the proceedings before the first-instance court have been completed, at the same time as, and in connection with, a judgment [on the merits of the criminal case].
In the above-mentioned ruling the Constitutional Court of the Russian Federation admitted, at the same time, that delayed control over the lawfulness and reasoning of intermediate court decisions ... is not a sufficient guarantee of human rights and freedoms and cannot be found to be in compliance with Articles 21 § 1, 22 § 1, 45 § 2 and 46 §§ 1 and 2 of the Constitution of the Russian Federation. When such decisions (including decisions on the application or alteration of a preventive measure) lead to consequences which go beyond the framework of proper criminal procedure, they significantly limit a person’s constitutional rights and freedoms and cause damage which may be impossible to rectify in the future. Judicial control over [such procedural decisions] must be provided without delay, until the pronouncement of the judgment [on the merits of the criminal case].
This judicial opinion of the Constitutional Court of the Russian Federation was reflected in the Code of Criminal Procedure of the Russian Federation. Its Articles 108 §§ 10-11 and 255 § 4 regulate the procedure for dealing with, in the course of a trial, the choice of measure of restraint and the extension of custodial measures, as well as the procedure and time-limits for appealing against relevant court decisions.
It follows from the judicial opinions formulated in the ruling of the Constitutional Court of the Russian Federation of 2 July 1998 that when it comes to examination on appeal of a complaint against a decision rendered in the course of a trial on the application of a custodial measure or its extension, the provisions of Article 355 of the Code of Criminal Procedure of the Russian Federations should be applied together with Article 108 §§ 10 and 11 and Article 255 § 4 of the Code of Criminal Procedure, regardless of whether the contested ruling on the custodial measure had been taken on the initiative of the court or at the request of a party to the trial proceedings.”
25.  It its ruling no. 4-P of 22 March 2005, the Constitutional Court held as follows:
“1.2.  In his complaint Mr S.V. Brovchenko also challenges the constitutionality of Article 355 §§ 5 and 6 of the Code of Criminal Procedure of the Russian Federation in so far as [the relevant provisions] exclude, in the applicant’s opinion, the possibility to appeal against the decisions taken by a first-instance court to reject a request for release ... and thereby restrict without reason the right to judicial protection.
The Constitutional Court of the Russian Federation, in its ruling of 2 July 1998 regarding the constitutionality of Articles 331 and 464 of the Code of Criminal Procedure of the Russian Soviet Federal Socialist Republic ... governing the procedure for appeal against first-instance court decisions, held that the above provisions had been in violation of the Constitution of the Russian Federation in so far as they excluded the possibility, prior to delivery of the judgment [on the merits of the criminal case], to challenge on appeal court decisions authorising or extending preventive measures in respect of the accused ...
The above ruling remains in force, and the judicial opinion expressed in it is applicable to determining the question of the possibility of challenging a court’s decision rejecting a request for release until delivery of a judgment [on the merits of the criminal case].
Taking into account this judicial opinion, the provisions of Article 355 §§ 5 and 6 of the Code of Criminal Procedure of the Russian Federation cannot be viewed as violating an individual’s constitutional rights and liberties. Moreover, upon discovery of circumstances showing the existence of grounds for termination of the custodial measure, the affected person is entitled to lodge a further request for release.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
26.  The applicant complained that the examination of his appeal against the decision of 15 February 2010 rejecting his application for release had been discontinued. He further complained that his appeal against the decision of 22 March 2010 extending his detention pending trial had not been examined speedily. 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.”
A.  Admissibility
27.  The Government submitted that, in so far as the applicant complained about the failure of the domestic authorities to examine his appeal against the decision of 15 February 2010, his complaint should be declared inadmissible for failure to comply with the six-month rule. Although the final judgment in respect of this complaint had been given on 26 March 2010, the Court had not received the application form until 22 October 2010.
28.  The applicant argued that his complaints were admissible. His application should have been considered as submitted on 25 July 2010 (the date of his first letter to the Court).
29.  The Court reiterates that Article 35 § 1 of the Convention permits it to deal with a matter only if the application has been lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. The Court further observes that under Rule 47 § 5 of the Rules of the Court in its version at the material time, the date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application.
30.  Turning to the present case, the Court observes that the final decision for the purposes of the applicant’s complaint about the refusal of the domestic authorities to examine his appeal against the decision of 15 February 2010 rejecting his application for release was taken on 26 March 2010. In a letter of 25 July 2010 addressed to the Court, the applicant set out a series of facts which gave rise to the present application and, in particular, the complaint about unlawfulness of decisions taken by the domestic authorities in connection with his deprivation of liberty. On 22 October 2010 the applicant sent the completed application form to the Court, raising the same complaints in more detail. Given that the applicant submitted the completed application form without excessive delay, the Court confirms that the date of his first letter to the Court is the date of the introduction of the application (see, with similar reasoning, Kozlitin v. Russia, no. 17092/04, §§ 41-43, 14 November 2013). It follows that the applicant’s complaint about the failure of the domestic authorities to examine his appeal against the decision of 15 February 2010 was submitted within the six-month period after the final decision in the case. Accordingly, the Court dismisses the Government’s objection on this point.
31.  The Court further notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B.  Merits
1.  Appeal against the decision of 15 February 2010
(a)  Submissions by the parties
32.  The Government submitted that the decision of 26 March 2010, by which the examination of the applicant’s appeal against the decision of 15 February 2010 had been discontinued, had been the result of an incorrect application of the provisions of the criminal procedural law by the Fleet Court. Relying on the ruling of the Constitutional Court of 2 July 1998 (see paragraphs 24 and 25 above), they asserted that any judicial decision pertaining to the examination of the parties’ requests for a change of preventive measure was amenable to appeal prior to the delivery of the final decision in the case.
33.  The applicant maintained his complaint.
(b)  The Court’s assessment
(i)  General principles
34.  The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law, but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Grauslys v. Lithuania, no. 36743/97, § 53, 10 October 2000). In order to satisfy the requirements of Article 5 § 4 of the Convention, a “review of the lawfulness of the applicant’s detention” must comply with both the substantive and the procedural rules of the national legislation and moreover be conducted in conformity with the aim of Article 5, namely to protect the individual against arbitrariness (see Keus v. the Netherlands, 25 October 1990, § 24, Series A no. 185‑C).
(ii)  Application of those principles in the present case
35.  The Court observes that on 26 March 2010 the Fleet Court discontinued its examination of the applicant’s appeal against the decision of 15 February 2010 rejecting his request for release. The Fleet Court reasoned that the refusal of an application for release was not amenable to a separate appeal before the final decision in the case as it was not in breach of the applicant’s right to access to a court and his right to have the case heard within a reasonable time, and did not delay the progress of the proceedings (see paragraph 11 above).
36.  The Court has already examined a similar issue in the cases of Makarenko v. Russia (no. 5962/03, §§ 121-25, 22 December 2009), and Chuprikov v. Russia (no. 17504/07, §§ 82-87, 12 June 2014). In both cases it found a violation of Article 5 § 4 on account of the failure of the domestic court to consider the substance of the applicants’ appeals against the decisions rejecting their requests for release.
37.  In view of the foregoing and the Government’s statement to the effect that the discontinuation of the examination of the applicant’s appeal against the decision of 15 February 2010 was brought about as a result of misinterpretation of the provisions of the domestic law by the domestic court, the Court considers that the decision of 26 March 2010 did not constitute, for the purposes of Article 5 § 4, an adequate judicial response to the applicant’s complaint against the decision of 15 February 2010 rejecting his application for release and that it infringed the applicant’s right to institute proceedings by which the lawfulness of his detention could have been decided.
38.  It follows that there has been a violation of Article 5 § 4 of the Convention on account of the failure to consider the substance of the applicant’s appeal against the decision of 15 February 2010 to reject his request for release.
2.  Speediness of review of the detention order of 22 March 2010
(a)  Submissions by the parties
39.  The Government submitted that, in view of the particular circumstances of the present case – namely, the examination by the domestic court of the issue of the resetting of the time-limit for the applicant to lodge his appeal against the custody order of 22 March 2010, and the adjournment of the hearing in order to secure the applicants’ personal participation – the proceedings for the examination of the applicant’s appeal complied with the requirements of Article 5 § 4 of the Convention.
40.  The applicant maintained his complaint.
(b)  The Court’s assessment
(i)  General principles
41.  The Court reiterates that Article 5 § 4, in guaranteeing to individuals arrested or detained the right to bring proceedings to challenge the lawfulness of their detention, also proclaims their right to a speedy judicial decision concerning the lawfulness of detention and to have it terminated if it proves unlawful (see Idalov v. Russia [GC], no. 5826/03, § 154, 22 May 2012). There is a special need for a swift decision determining the lawfulness of detention in cases where a trial is pending, because the defendant should benefit fully from the principle of the presumption of innocence (ibid, § 155).
42.  Although the number of days taken to conduct the relevant proceedings is obviously an important element, it is not necessarily in itself decisive for the question of whether a decision has been given with the requisite speed. What is taken into account is the diligence shown by the authorities, the delay attributable to the applicant, and any factors causing a delay for which the State cannot be held responsible. The question whether the right to a speedy decision has been respected must thus be determined in the light of the circumstances of each case (Delijorgji v. Albania, no. 6858/11, § 87, 28 April 2015).
(ii)  Application of those principles in the present case
43.  The Court notes that the applicant’s appeal against the detention order of 22 March 2010 was lodged on 27 March 2010 and was examined by the Fleet Court thirty-four days later, on 30 April 2010 (see paragraphs 14 and 20 above). It further notes that nothing suggests that the applicant caused any delays in the examination of this appeal.
44.  The Court takes account of the Government’s argument that particular circumstances in the present case justified the delay in the examination of the applicant’s appeal. However, in so far as the Government referred to the need for the resetting of the time-limit for appeal, the Court observes that such necessity was prompted by the domestic authorities’ own failure to provide the applicant with a copy of the custody order of 22 March 2010 in time for him to comply with the time‑limit for lodging an appeal (see paragraph 13 above). The Court is also mindful of the fact that it took the Garrison Court twelve days to reset the above time-limit (see paragraphs 14 and 15 above), and another thirteen days to submit the applicant’s appeal to the Fleet Court for examination (see paragraph 16 above). Moreover, as regards the need for an adjournment of the hearing so as to ensure the applicant’s participation, the Court observes that this was a result of the domestic authorities’ failure to notify the applicant in advance about the examination of his appeal (see paragraph 17 above). In the light of the foregoing, the Court considers that the domestic authorities failed to show required diligence in dealing with the applicant’s appeal and that the overall delay in those proceedings was wholly caused by those failings.
45.  The Court reiterates that it has found a violation of Article 5 § 4 in Russian cases where appeal proceedings lasted twenty (see Butusov v. Russia, no. 7923/04, §§ 32-35, 22 December 2009), twenty-six (see Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006), and twenty-seven days (see Pichugin v. Russia, no. 38623/03, §§ 154-56, 23 October 2012), stressing, in each case, that their entire duration was attributable to the authorities.
46.  Having regard to its established case-law on the issue and the circumstances of the present case, the Court considers that the time it took the domestic court to examine the applicant’s appeal against the detention order of 22 March 2010 cannot be considered compatible with the “speediness” requirement of Article 5 § 4.
47.  There has therefore been a violation of Article 5 § 4 of the Convention on account of the length of the appeal proceedings in relation to the detention order of 22 March 2010.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
48.  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.”
A.  Damage
49.  The applicant claimed 127,000 euros (EUR) in respect of pecuniary damage and EUR 275,000 in respect of non-pecuniary damage.
50.  The Government considered the applicant’s claim for pecuniary damages unsubstantiated and his claim for non-pecuniary damages excessive and not corresponding to the Court’s case-law.
51.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 5,000 in respect of non‑pecuniary damage.
B.  Costs and expenses
52.  The applicant also claimed EUR 9,930 for his legal representation before the Court and EUR 72,000 for other costs and expenses incurred before the Court. The applicant did not submit any documents to support his claim.
53.  The Government considered that no costs and expenses should be awarded to the applicant since he had failed to submit any documents proving that such costs and expenses had been actually incurred.
54.  According to the Court’s case-law, 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. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses for the proceedings before the Court.
C.  Default interest
55.  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.  Declares the complaints under Article 5 § 4 of the Convention admissible;

2.  Holds that there has been a violation of Article 5 § 4 of the Convention on account of the failure to consider the substance of the applicant’s appeal against the decision of 15 February 2010 to reject his request for release;

3.  Holds that there has been a violation of Article 5 § 4 of the Convention on account of the length of the appeal proceedings in relation to the detention order of 22 March 2010;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Luis López Guerra
	Registrar	President