THIRD SECTION

DECISION

Applications nos. 16284/18 and 16288/18 Valeriy Nikolayevich PARFENOV against Russia and Kirill Vladimirovich BARABASH against Russia

The European Court of Human Rights (Third Section), sitting on 2 July 2019 as a Committee composed of:

Alena Poláčková, President, Dmitry Dedov, Gilberto Felici, judges, and Fatoş Aracı, Deputy Section Registrar

Having regard to the above applications lodged on 26 March 2018,

Having deliberated, decides as follows:

THE FACTS

The applicants are two Russian nationals, Mr Valeriy Nikolayevich Parfenov and Mr Kirill Vladimirovich Barabash, who were born in 1974 and 1977 respectively and are detained in Moscow. The applications were lodged on 26 March 2018. The applicants were represented before the Court by Ms M. Visentin, a lawyer practising in Lainate, Italy.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 28 July 2015 the applicants were arrested on charges of membership of an extremist organisation. On the next day the Khamovnicheskiy District Court of Moscow authorised their detention. Their detention was later extended on several occasions, most recently on 10 July 2017. The applicants ’ appeals against detention orders were repeatedly dismissed by the Moscow City Court. On 10 August 2017 the Tverskoy District Court of Moscow convicted the applicants as charged and sentenced them to four years ’ imprisonment. Two months later, on 9 October 2017 the City Court examined and dismissed their appeal against the detention order of 10 July 2017.

B. Relevant domestic law

For the relevant domestic law see Chuprikov v. Russia , no. 17504/07 , § 37, 12 June 2014.

THE LAW

The applicants complained under Article 5 of the Convention about the absence of relevant and sufficient reasons for their pre-trial detention and the domestic courts ’ failure to examine speedily their appeals against the detention orders. Article 5, in so far as relevant, reads as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. 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.”

Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

A. Complaint under Article 5 § 3 of the Convention

The Court observes that the applicants ’ complaints concerned their prolonged detention in custody pending trial. The Court notes, firstly, that the applicants were detained within the meaning of Article 5 § 3 of the Convention from 28 July 2015, when they had been arrested, until their conviction by the Tvesrkoy District Court of Moscow on 10 August 2017. Starting from that date onwards, they were detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a), and therefore their detention after 10 August 2017 falls outside the scope of Article 5 § 3 (see Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000-XI). Taking into account that the applicants lodged their applications with the Court on 26 March 2018, that is more than six months after their conviction, this complaint is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention.

B. Complaint under Article 5 § 4 of the Convention

The Court further observes, that the appeal review of all of the detention orders, except for the last one, issued on 10 July 2017, has ended before the applicants ’ conviction on 10 August 2017. Accordingly, this part of their complaint under Article 5 § 4 of the Convention was also introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see for similar reasoning above).

As regards the very last detention order of 10 July 2017 and the domestic courts ’ alleged failure to examine speedily the applicants ’ appeals against it, the Court recalls that 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 (see Iłowiecki v. Poland , no. 27504/95, § 76, 4 October 2001, with further references). The primary purpose of Article 5 § 4 is to ensure to a person deprived of liberty a speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release. The requirement of speediness is therefore relevant, while that person ’ s detention lasts and is no longer relevant after the person ’ s release (see Kováčik v. Slovakia , no. 50903/06, § 77, 29 November 2011, with further references). A former detainee, however, may well have a legal interest in the determination of the lawfulness of his or her detention, even after release, as an issue can arise, for example, as regards the “enforceable right to compensation” guaranteed by Article 5 § 5 of the Convention. Therefore the guarantee of efficiency of the review should continue to apply even thereafter (see Osmanović v. Croatia , no. 67604/10 , § 47, 6 November 2012, with further references ).

Accordingly, the applicants ’ conviction and the respective change of the legal basis for their detention stripped the applicants ’ appeal against the detention order issued before the conviction and not yet decided of any legal meaning, as it could not result in the applicants ’ release which they had sought by lodging an appeal. From the date of the conviction and the sentence of imprisonment the applicants should have realised the fruitlessness of any further attempts to challenge the pre-trial detention. The Court observes that it applies a similar approach to cases concerning Article 5 § 3 of the Convention by calculating the six-month time-limit for applicants to complain about the unreasonably long detention on remand from the date of the trial judgment, irrespective of the fact if an appeal may be pending (see Novinskiy v. Russia (dec.), no. 11982/02, § 107, 6 December 2007; Fedosov v. Russia (dec.), no. 42237/02. 25 January 2007; Kositsyn v. Russia (dec.), no. 69535/01, 19 October 2006; Mironov v. Russia (dec.), no. 22625/02, 5 October 2006; Daktaras v. Lithuania (dec.), no. 42095/98, 11 January 2000). Therefore, similarly to other complaints examined above, the applicants should have applied to the Court with their complaint about the alleged lack of speediness of the appeal review of the detention order of 10 July 2017 within six months from the date of their conviction, that is, no later than 10 February 2018. It follows that this complaint was also lodged out of out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 25 July 2019 .

Fatoş Aracı Alena Poláčková Deputy Registrar President