VASILYEV AND OTHERS v. RUSSIA - 51329/08 (Judgment : Right to liberty and security : Third Section Committee) [2021] ECHR 564 (24 June 2021)

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You are here: BAILII >> Databases >> European Court of Human Rights >> VASILYEV AND OTHERS v. RUSSIA - 51329/08 (Judgment : Right to liberty and security : Third Section Committee) [2021] ECHR 564 (24 June 2021) URL: http://www.bailii.org/eu/cases/ECHR/2021/564.html Cite as: CE:ECHR:2021:0624JUD005132908, [2021] ECHR 564, ECLI:CE:ECHR:2021:0624JUD005132908

In the case of Vasilyev and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 3 June 2021,

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

I. 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.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

6. The applicants complained 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 regards application no. 72722/17, the Court would like to stress that this is the second application lodged by Mr Moskvitin concerning one and the same lengthy pre-trial detention. The Court has already found a violation of Article 5 § 3 of the Convention in respect of the first application (no. 43527/14) lodged by Mr Moskvitin on 30 April 2014 on account of his unreasonably long pre-trial detention from 19 June 2013 to 19 January 2015 (see Klepikov and Others v. Russia [Committee], nos. 3400/06 and 12 others, 24 November 2016). As regards the period subsequent to the one examined by the Court in the said judgment, the domestic courts continued the examination of the criminal case against the applicant who remained in detention pending trial from 19 January 2015 to 1 February 2016 and from 21 February 2017 to 18 January 2018. On 18 September 2017 Mr Moskvitin lodged the present application with the Court.

9. 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 application no. 43527/14 concerned the applicant’s excessively long pre-trial detention. After the Court had delivered its judgment on 24 November 2016, having found a violation of Article 5 § 3 of the Convention and having made an award in respect of the period from 19 June 2013 to 19 January 2015, the applicant remained in detention in connection with the same criminal proceedings.

12. Application no. 72722/17 concerns two periods of the applicant’s pre-trial detention. The applicant was detained pending trial from 19 January 2015 to 1 February 2016, when the court at first level of jurisdiction convicted the applicant, and from 21 February 2017, when the appeal court quashed his conviction and remitted the case for new consideration to the trial court, to 18 January 2018, when the applicant was convicted again. The Court has already held on a number of occasions that, as in the instant case, the applicants continued to be deprived of their liberty while the criminal proceedings were pending at the appeal stage, the multiple consecutive pre-detention periods should be regarded as a whole (see, among many other authorities, Solmaz v. Turkey, no. 27561/02, §§ 34‑37, 16 January 2007). In order to assess the length of the applicant’s pre-trial detention, the Court should therefore make an overall evaluation of the accumulated periods of detention under Article 5 § 3 of the Convention.

13. The Court further notes 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 case brought by the applicant. It may, nevertheless, take stock of subsequent factual developments. In this respect, the Court observes that the applicant was kept in pre-trial detention for over twelve months after the period of detention with regard to which the Court found a violation of Article 5 § 3 of the Convention, and was again detained for over eleven months after the Court had delivered its judgment in the case (see, mutatis mutandis, Wasserman (no. 2), cited above, § 36).

14. It follows that, in so far as the applicant’s complaint concerns the further period during which he continued to be detained allegedly in the absence of proper reasons for that, it has not been previously examined by the Court. The Court therefore has competence to entertain this complaint. Moreover, when assessing the reasonableness of the remaining periods from 20 January 2015 to 1 February 2016, and from 21 February 2017 to 18 January 2018 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).

15. As regards all 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 has already found a violation in respect of issues similar to those in the present case.

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 these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive.

17. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

18. In applications nos. 51329/08, 14820/16, 14980/17, 53939/17, 56438/17, 60494/17 and 77437/17 the applicants 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 Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts), concerning the use of metal cages during court hearings; Idalov v. Russia [GC], no. 5826/03, 22 May 2012, concerning lack of a speedy review of detention matters; and Siyrak v. Russia, no. 38094/05, §§ 25-33, 19/12/2013, concerning lack of legal representation on appeal).

IV. REMAINING COMPLAINTS

19. In applications nos. 53939/17 and 72722/17 the applicants also raised other complaints under various Articles of the Convention.

20. The Court has examined the applications listed in the appended table 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.

21. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

22. 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.”

23. 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, and Svinarenko and Slyadnev, cited above) the Court considers it reasonable to award the sums indicated in the appended table.

24. 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. Declares the complaints concerning the excessive length of pre-trial 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 applications nos. 53939/17 and 72722/17 inadmissible;

3. Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;

4. 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);

5. 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 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 amounts 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 24 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Darian Pavli
Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 5 § 3 of the Convention

(excessive length of pre-trial detention)

No.	Application no. Date of introduction	Applicant’s name Year of birth	Period of detention	Court which issued detention order/examined appeal	Length of detention	Specific defects	Other complaints under well-established case-law	Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]
	51329/08 16/09/2008	Mikhail Olegovich VASILYEV 1972	13/03/2006 to 05/05/2008	Moskovskiy District Court of Tver; Tver Regional Court	2 year(s) and 1 month(s) and 23 day(s)	Collective orders; use of stereotyped formula from one detention order to another one; as the case progressed, use of assumptions, in the absence of any evidentiary basis, of the persistent risks of absconding or re-offending, and obstructing justice;	Art. 6 (1) - and Art. 6 (3) (c) - unfair criminal proceedings due to lack of legal representation - The State-appointed counsel failed to appear for the appeal hearing and the appeal court proceeded in her absence. The applicant did not object and submitted that he chose not to be represented by the counsel who failed to appear. While the domestic judicial authorities were in no position to compel counsel to act in the best interest of the applicant’s defence, it was for the appeal court to verify whether the applicant’s statement amounted to a conscientious waiver of his right to legal assistance and, if it was not, to look into the circumstances of the counsel’s absence from the hearing. The appeal court should have considered whether the examination of the appeal should have been adjourned in the absence of counsel, regard being had to what was at stake for the applicant (he was sentenced to a 6 years’ imprisonment). Having omitted to do so, the domestic judicial authorities failed to secure effective legal assistance to the applicant during the appeal proceedings (compare Siyrak v. Russia, no. 38094/05, §§ 25-33, 19/12/2013).	2,900
	6937/13 10/01/2013	Vyacheslav Sergeyevich BOLSHAKOV 1975	12/03/2011 to 18/03/2013	Oktyabrskiy District Court of Ufa; Supreme Court of the Bashkortostan Republic	2 year(s) and 7 day(s)	Collective detention orders; 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.		2,100
	14820/16 04/03/2016	Aleksandra Pavlovna IVANOVA 1995	27/10/2015 to 22/12/2016	Lefortovskiy District Court of Moscow; Moscow City Court	1 year(s) and 1 month(s) and 26 day(s)	Failure to conduct the proceedings with due diligence during the period of detention; the courts repeatedly relied on the fact that the applicant had been caught in Turkey during her attempt to cross the border to Syria to join ISIS and that after her return to Russia she maintained contact with a member of ISIS, developing plans to once again leave Russia to join that terrorist organisation; the defence based their requests for release on arguments about the young age of the applicant; her stable family situation and her employment, the state of her health, as well as positive characteristics given to the applicant by prominent human rights activists and members of the Russian Science Academy; referring to the gravity of the crime, the courts cited risks of absconding, re-offending and obstructing justice. The courts did not explain why other measures of restraint, alternative to the detention, will not eliminate the alleged risks of re-offending or absconding; relying on the investigators’ materials which allegedly "convincingly demonstrated" the risks of the applicant absconding or obstructing justice, the courts did not cite specific evidence, having referred back to the mere charge of the applicant having been caught during her attempt to cross the border and her alleged connections to the member of ISIS.	Art. 5 (4) - excessive length of judicial review of detention - the detention order of 24/05/2016 of the Lefortovskiy District Court of Moscow was reviewed on appeal by the Moscow City Court on 21/06/2016.	1,700
	6144/17 14/06/2017	Ivan Viktorovich MAKARSKIY 1989	22/12/2010 to 29/05/2017	Kominternovskiy District Court of Voronezh; Moscow City Court; St Petersburg City Court; Nevskiy District Court of St Petersburg; Vologda Town Court; Vologda Regional Court	6 year(s) and 5 month(s) and 8 day(s)	Fragility of the reasons employed by the courts; collective detention orders; failure to conduct the proceedings with due diligence during the period of detention.		5,000
	14980/17 02/05/2017	Aleksandr Nikolayevich KUMPAN 1979	01/04/2015 to 03/02/2017	Yemelyanovskiy District Court of the Krasnoyarsk Region; Krasnoyarsk Regional Court	1 year(s) and 10 month(s) and 3 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.	Art. 5 (4) - excessive length of judicial review of detention - appeal complaint was submitted on 05/12/2016, examined on 10/01/2017 (36 days later).	2,500
	33851/17 19/06/2017	Nikolay Yuryevich PETRUSHEV 1987	29/06/2016 to 02/08/2017	Kaliniskiy District Court of Tyumen; Tyumen Regional Court	1 year(s) and 1 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 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.		1,200
	42325/17 11/05/2017	Albert Nailevich VALIULLIN 1981	02/12/2014 to 05/05/2017	Sovetskiy District Court of Kazan; Supreme Court of the Republic of Tatarstan	2 year(s) and 5 month(s) and 4 day(s)	Use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to conduct the proceedings with due diligence during the period of detention; failure to examine the possibility of applying other measures of restraint, fragility of the reasons employed by the courts.		2,600
	45057/17 29/05/2017	Lenar Azatovich SAITOV 1987	14/10/2014 to 08/12/2017	Vakhitovskiy District Court of Kazan; Supreme Court of the Republic of Tatarstan	3 year(s) and 1 month(s) and 25 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.		3,200
	46669/17 29/05/2017	Andrey Georgiyevich LISIMENKO 1976	16/03/2015 to 13/11/2017	Syktyvkar Town Court; Supreme Court of the Komi Republic	2 year(s) and 7 month(s) and 29 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.		2,800
	51913/17 08/06/2017	Vladimir Olegovich MAZNIK 1977	17/05/2011 to 29/05/2017	Sverdlovskiy District Court of Kostroma; Vologda Town Court; Vologda Regional Court	6 year(s) and 13 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.		5,000
	53939/17 05/07/2017	Sergey Aleksandrovich PLESHEV 1991	01/03/2017 to 06/12/2017	Sysolskiy District Court of the Komi Republic; Supreme Court of the Komi Republic	9 month(s) and 6 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.	Art. 5 (4) - excessive length of judicial review of detention - delay in examination of the applicant’s appeal against the second detention order of 28/04/2017. It took the courts 28 days between the introduction of his appeal and its examination on 26/05/2017.	1,400
	54511/17 22/06/2017	Irek Albertovich NABIULLIN 1978	15/11/2013 to 05/05/2017	Moskovskiy District Court of Kazan; Supreme Court of the Tatarstan Republic	3 year(s) and 5 month(s) and 21 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.		3,600
	56438/17 24/07/2017	Andrey Vladimirovich DEDKOV 1983	22/01/2015 to 03/10/2017	Sovetskiy District Court of Kazan; Supreme Court of the Tatarstan Republic	2 year(s) and 8 month(s) and 12 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.	Art. 3 - use of metal cages and/or other security arrangements in courtrooms- during the pre-trial detention and trial proceedings.	9,750
	60494/17 05/08/2017	Nikita Vadimovich GORYACHEV 1994	17/01/2015 to 03/10/2017	Sovetskiy District Court of Kazan; Supreme Court of the Tatarstan Republic	2 year(s) and 8 month(s) and 17 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.	Art. 3 - use of metal cages and/or other security arrangements in courtrooms during the pre-trial detention and trial proceedings.	9,750
	69676/17 14/02/2018	Sergey Nikolayevich IVLEV 1972	15/03/2016 to 29/06/2018	Kuybyshevskiy District Court of Omsk; Omsk Regional Court	2 year(s) and 3 month(s) and 15 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.		2,400
	72722/17 18/09/2017	Spartak Sergeyevich MOSKVITIN 1991	19/06/2013 to 01/02/2016 21/02/2017 to 18/01/2018	Sovetskiy District Court of Krasnoyarsk; Krasnoyarsk Regional Court	2 year(s) and 7 month(s) and 12 day(s) 10 month(s) and 29 day(s)	Collective detention orders; 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.		2,000
	77437/17 17/10/2017	Aleksandr Alekseyevich KHUKHLAYEV 1982	25/09/2015 to 27/12/2017	Rostov Regional Court; Pervomayskiy District Court of Rostov-on-Don	2 year(s) and 3 month(s) and 3 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 examine the possibility of applying other measures of restraint; failure to conduct the proceedings with due diligence during the period of detention.	Art. 5 (4) - excessive length of judicial review of detention - appeal decisions of 09/06/2017 (in relation to detention order of 29/03/2017), and 05/09/2017 (in relation to detention order of 20/06/2017).	2,800
	78460/17 30/01/2018	Kirill Vladimirovich SLYUSAR 1982	17/07/2015 to 15/01/2018	Sverdlovskiy District Court of Krasnoyarsk; Krasnoyarsk Regional Court	2 year(s) and 5 month(s) and 30 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.		2,600