THIRD SECTION

CASE OF SHAGABUTDINOV v. RUSSIA

(Application no. 51389/07)

JUDGMENT

STRASBOURG

13 December 2016

This judgment is final but it may be subject to editorial revision.

In the case of Shagabutdinov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 22 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 51389/07) 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 Ildar Fatykhovich Shagabutdinov (“the applicant”), on 16 October 2007.
2.  The applicant was represented by Mr R. Karpinskiy, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.
3.  On 20 May 2009 the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1976 and lives in Moscow.
5.  On 13 October 2006 the Zamoskvoretskiy District Court in Moscow remanded the applicant in custody on the charge of fraud. Subsequently the District Court extended the applicant’s detention on 8 December 2006 and on 2 February, 10 April, 29 May and 18 September 2007. Each time the District Court attached preponderant weight to the gravity of the charges against the applicant. On 21 May and 4 July 2007 the Moscow City Court rejected the appeals against the detention orders of 10 April and 29 May 2007, respectively.
6.  The City Court authorised further extensions of the applicant’s detention on 28 September and 26 December 2007. The Supreme Court rejected his appeals on 31 October 2007 and 15 February 2008, respectively.
7.  On 14 February 2008 the case was submitted for trial. On 20 February, 30 June and 17 December 2008 and 18 March and 18 June 2009 the District Courts in Moscow prolonged the applicant’s detention pending trial, referring mainly to the gravity of the charges. The most recent extension order was issued for the period until 19 September 2009.
8.  Between 27 January 2007 and 16 May 2008 the applicant was detained in the IZ-77/1 remand prison in Moscow. The prison was filled beyond the design capacity and cells were severely overcrowded. He was later transferred to another remand prison in Moscow.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLES 3 AND 5 § 4 OF THE CONVENTION
9.  The applicant complained that the conditions of his detention in the IZ-77/1 prison had been inhuman and degrading in breach of Article 3 of the Convention and that the appeals against the detention orders had not been examined “speedily” in breach of Article 5 § 4.
10.  On 26 September 2014 the Government submitted a unilateral declaration, inviting the Court to strike the case out of its list. They acknowledged that from 27 January 2007 to 16 May 2008 the applicant had been detained in conditions which did not comply with the requirements of Article 3 of the Convention, and that the appeals had not been examined “speedily” in breach of Article 5 § 4. They offered to pay the applicant 7,000 euros (EUR). The remainder of the declaration read:
“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 Convention. 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.”
11.  The applicant did not accept the Government’s offer.
12.  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) 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.”
13.  It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles established in its case-law, in particular, the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
14.  Since its first judgment concerning the inhuman and degrading conditions of detention in Russian penitentiary facilities (see Kalashnikov v. Russia, no. 47095/99, ECHR 2002‑VI), the Court found similar violations in many cases against Russia which concerned the conditions of detention in remand prisons (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012). The complaint relating to substantial delays in examining the appeals against detention orders is also based on well‑established case-law of the Court (see Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006).
15.  Turning next to the nature of the admissions contained in the Government’s declarations, the Court is satisfied that the Government did not dispute the allegations made by the applicant and acknowledged violations of Articles 3 and 5 § 4 of the Convention.
16.  As to the intended redress to be provided to the applicant, the Court notes that proposed sum is not unreasonable both in absolute terms and in relation to awards in similar cases. The Government have committed themselves to effecting the payment of the sum within three months of the Court’s decision, with default interest to be payable in case of delay of settlement.
17.  The Court therefore considers that it is no longer justified to continue the examination of the case in the part concerning the above‑mentioned complaints. As the Committee of Ministers remains competent to supervise, in accordance with Article 46 § 2 of the Convention, the implementation of the judgments concerning the same issues, the Court is also 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 case. In any event, the Court’s decision is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the applications to its list of cases, should the Government fail to comply with the terms of their unilateral declarations (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006).
18.  In view of the above, it is appropriate to strike the case out of the list in the part concerning the above-mentioned complaints.
II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUCTION WITH ARTICLE 3
19.  The applicant further complained that he did not have an effective remedy for his complaint about the conditions of detention, in breach of the requirements of Article 13 of the Convention which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
20.  The Court has on many occasions examined the effectiveness of the domestic remedies suggested by the Russian Government in cases concerning inadequate conditions of an applicant’s detention and found them to be lacking in many regards. The Court has held, in particular, that the Government were unable to show what redress could have been afforded to the applicant by a prosecutor, a court, or any other State agency, bearing in mind that the problems arising from inhuman conditions of detention were apparently of a structural nature and did not concern the applicant’s personal situation alone (see the authorities referred to in Ananyev and Others, cited above, § 99).
21.  Having regard to its case-law on the subject, the Court declares this complaint admissible and finds that the applicant did not have at his disposal an effective remedy for his complaint about the conditions of detention in breach of Article 13 of the Convention.
III.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
22.  The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had not been based on relevant and sufficient reasons. Article 5 § 3 provides 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.”
A.  Admissibility
23.  The Government referred to their objections as to the admissibility of the complaint which they formulated in the case of Kalinin v. Russia (no. 54749/12, § 12, 19 February 2015).
24.  The Court reiterates that it rejected the Government’s objections in the Kalinin case (cited above, §§ 14-24) and it finds nothing in the circumstances of the present case to warrant a different conclusion.
25.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
26.  The Government submitted that the applicant’s detention had complied with the requirements of Article 5 § 3.
27.  The Court notes that the period to be taken into consideration for the purposes of Article 5 § 3 of the Convention lasted for two years and eleven months, from the applicant’s arrest on 13 October 2006 until 19 September 2009, the most recent date on which he was known to be in custody (see Pushchelenko and Others v. Russia, nos. 45392/11, 47671/11, 62205/11, 45312/13 and 53366/13, § 32, 12 March 2015).
28.  The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the ground that the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges (see, among many others, Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012).
29.  The Court notes that the domestic courts relied essentially on the gravity of the charges to keep the applicant in custody. It finds that the reasons for extending the custodial measure cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.
30.  There has accordingly been a violation of Article 5 § 3 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
31.  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.”
32.  Making its assessment on an equitable basis, and taking into account the sum payable to the applicant under the unilateral declaration (see Urazov v. Russia, no. 42147/05, § 106, 14 June 2016), the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
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,
1.  Decides, having regard to the terms of the Government’s declaration, and the arrangements 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 5 § 4 of the Convention;

2.  Declares the remainder of the application admissible;

3.  Holds that there has been a violation of Article 13 of the Convention read in conjunction with Article 3;

4.  Holds that there has been a violation of Article 5 § 3 of the Convention;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 1,000 (one 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.
Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President