THIRD SECTION

CASE OF MYALICHEV v. RUSSIA

(Application no. 9237/14)

JUDGMENT

STRASBOURG

8 November 2016

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

In the case of Myalichev 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 11 October 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 9237/14) 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 Sergey Anatolyevich Myalichev (“the applicant”), on 8 January 2014.
2.  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 2 December 2014 the complaint concerning the applicant’s detention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1974 and lived in the Sverdlovsk Region.
5.  On 6 April 2012 the Leninskiy District Court in Nizhniy Tagil issued a detention order in respect of the applicant who had been charged with murder and had absconded. The order was to be valid for an initial period of two months following the applicant’s arrest.
6.  On 19 February 2013 the applicant was apprehended in China and extradited to Russia.
7.  On 30 April 2013 the Leninskiy district prosecutor asked the District Court to extend the applicant’s detention for a further two months. On the same day the District Court granted the application in part. It extended the authorised period of detention “for one month, until 19 May”.
8.  The applicant filed an appeal. He complained, in particular, that the initial two-month detention period had expired already on 19 April 2013 and that his subsequent detention had been unlawful.
9.  On 10 June 2013 the Sverdlovsk Regional Court rejected the appeal. On 26 September 2013 a judge of the Regional Court refused the applicant leave to appeal to the regional cassation instance.
10.  On 4 March 2014 a judge of the Supreme Court of the Russian Federation refused the applicant leave to appeal to the Supreme Court. The judge noted, in particular, that the belated filing of an application for an extension of the authorised period of detention was not a ground for varying the custodial measure.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
11.  The applicant complained that his detention in the period from 19 to 30 April 2013 had been unlawful. The Court will examine this complaint under Article 5 § 1 of the Convention which reads as follows:
“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save ... in accordance with a procedure prescribed by law ...”
A.  Admissibility
12.  The Government submitted that the application was inadmissible by virtue of the six-month rule because the applicant had lodged his complaint on 8 January 2014, more than six months after the appeal decision of 10 June 2013. In reply, the applicant referred to the Supreme Court’s decision of 4 March 2014, by which his complaint had been rejected at final instance.
13.  The Court observes that the application was introduced more than six months after the appeal decision of 10 June 2013 but within six months of the regional court’s decision of 26 September 2013 by which the application for review on points of law (cassation) had been rejected. These developments coincided in time with a reform of the system of appeals in Russian criminal proceedings in which an appeal instance was added at the regional level and two levels of cassation proceedings replaced two levels of supervisory review. As regards the former system, it had been the Court’s constant position that a decision taken by a second-instance court at the regional level in the criminal cassation proceedings was the “final decision” within the meaning of Article 35 § 1 of the Convention. In the new system, the time-limits for lodging cassation appeals were longer, but the Court recently expressed the opinion that such time-limits could still be reconciled with the Convention requirements on an effective remedy (see Kashlan v. Russia (dec.), no. 60189/15, § 27, 19 April 2016). It was therefore not unreasonable for the applicant to attempt a remedy which had been previously considered to result in the final decision in the domestic proceedings and which had not been found by the Court to be ineffective. The Court accordingly finds that the application was not belated and rejects the Government’s objection.
14.  The Court considers that the application 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
15.  The Court observes that the initial detention order authorised the applicant’s detention for a period of two months starting from the date of his arrest. As he was arrested on 19 February 2013, the authorised detention period expired on 19 April 2013. A further extension was not granted until 30 April 2013; it covered retrospectively the period from 19 to 30 April 2013 and a future period until 19 May 2013.
16.  It follows that the applicant’s detention between 19 and 30 April 2013 was not based on a judicial order. As regards the retrospective authorisation of that period by the order of 30 April, the Court has found in many Russian cases that any ex post facto authorisation of detention on remand is in breach of both the domestic law and the Convention requirements because it is incompatible with the “right to security of person” and is necessarily tainted with arbitrariness (see, among others, Khudoyorov v. Russia, no. 6847/02, §§ 138-142, ECHR 2005-X (extracts); Shukhardin v. Russia, no. 65734/01, § 69, 28 June 2007; Samoshenkov and Strokov v. Russia, nos. 21731/03 and 1886/04, § 49, 22 July 2010, and Karimov v. Russia, no. 54219/08, § 117, 29 July 2010).
17.  There has accordingly been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention from 19 to 30 April 2013.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
18.  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.”
19.  The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. The Government considered the claim to be excessive.
20.  The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.
21.  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 application admissible;

2.  Holds that there has been a violation of Article 5 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, 7,500 (seven thousand five hundred) euros 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helena Jäderblom
	Deputy Registrar	President