THIRD SECTION

DECISION

Application no . 59989/11 Sergey Aleksandrovich YEFIMENKO against Russia

The European Court of Human Rights (Third Section), sitting on 27 September 2016 as a Committee composed of:

Helena Jäderblom, President, Dmitry Dedov, Branko Lubarda, judges,

and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 7 June 2011,

Having regard to the declaration submitted by the respondent Government on 17 July 2014 requesting the Court to strike a part of the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

PROCEDURE

The applicant, Mr Sergey Aleksandrovich Yefimenko, is a Russian national, who was born in 1969 and is detained in Chelyabinsk.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

The applicant complained that his pre-trial detention had been unreasonably long and that it had not been based on relevant or sufficient reasons.

On 18 March 2014 the application was communicated to the Government.

FACTS

On 13 March 2001 the applicant was arrested on suspicion of having murdered his aunt. He remained in pre-trial detention pending investigation and trial.

On 24 April 2003 the Chelyabinsk Regional Court convicted the applicant of several offences (fraud, abduction, extortion, theft and several counts of murder) and sentenced him to twenty-two years ’ imprisonment. On 19 September 2003 the Supreme Court of Russia upheld the judgment, in substance, on appeal.

On 10 June 2009 the Presidium of the Supreme Court quashed, by way of supervisory review, the appeal judgment of 19 September 2003 and remitted the matter for fresh examination.

On 3 September 2009 the Supreme Court examined and set aside the judgment of 24 April 2003 and ordered a retrial. The applicant remained in detention. The courts extended his detention on the ground of gravity of charges, possibility of absconding and re-offending stating that the circumstances of the case had not changed. They also referred to the applicant ’ s character and his state of health.

On 16 February 2011 the Regional Court convicted the applicant of murder, kidnapping and extortion. On 12 May 2011 the Supreme Court upheld the judgment on appeal.

THE LAW

The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long and had not been based on relevant and sufficient reasons. Article 5 § 3, in so far as relevant, 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.”

The Government argued that the applicant had failed to comply with the six months ’ rule with regard to his complaint about pre-trial detention between 13 March 2001 and 24 April 2003.

They acknowledged that the applicant ’ s pre-trial detention between 3 September 2009 and 16 February 2011 had been incompatible with the requirements set out in Article 5 § 3 of the Convention and proposed to make a unilateral declaration. They further asked the Court to strike out this part of the application, in accordance with Article 37 of the Convention.

In the declaration, the Government acknowledged that the applicant had been detained “without well-founded justification on the basis of decisions rendered by the courts”, which did “not comply with the requirements of Article 5 § 3 of the Convention” and stated their readiness to pay 1,750 euros to the applicant for his pre-trial detention form 3 September 2009 to 16 February 2011.

The remainder of the declaration read as follows:

“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 European Convention on Human Rights. 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.

This payment will constitute the final resolution of the case.”

By letter of 18 August 2014 , the applicant rejected the Government ’ s offer. He expressed the view that the sum mentioned in the Government ’ s declaration was insufficient.

A. Pre-trial detention between 16 March 2001 and 24 April 2003

The Court observes that in the present case the applicant ’ s pre-trial detention comprised two distinct periods: (1) from 13 March 2001, when the applicant was arrested pending criminal investigation against him, to 24 April 2003, when he was convicted, and (2) from 3 September 2009, when the appeal court quashed the verdict, to his conviction on 16 February 2011. In between those two periods the applicant ’ s first conviction became final, when upheld by the appellate court on 19 September 2003, and the applicant, for about six years, served a prison sentence.

The Court considers that the issue in the present case is whether the two periods of the applicant ’ s pre-trial detention can be assessed cumulatively. The Court answers this question in the negative. In the Court ’ s view, the fact that the applicant ’ s conviction became final once upheld on appeal on 19 September 2003 and he started serving a prison sentence had the effect of triggering the application of the six-month r ule referred to in Article 35 § 1 of the Convention in respect of the first period of his pre-trial detention (see Nasakin v. Russia , no. 22735/05, §§ 81 – 85, 18 July 2013).

Having regard to the above, the applicant ’ s complaint with regard to the detention period from 13 March 2001 to 24 April 2003 should be declared inadmissible as being lodged out of time.

B. Pre-trial detention between 3 September 2009 and 16 February 2011

As regards the applicant ’ s pre-trial detention between 3 September 2009 and 16 February 2011, 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) of the Convention 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.”

It also observes that in certain circumstances it may strike out an application under Article 37 § 1 (c) of the Convention 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 carefully examine the declarations in the light of the principles established in its case-law (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

The Court notes at the outset that since its first judgment concerning lengthy pre-trial detention in Russia (see Kalashnikov v. Russia , no. 47095/99, §§ 104-21 ECHR 2002-VI), it has found a violation of Article 5 § 3 of the Convention in more than one hundred cases against Russia on account of an excessively lengthy pre-trial detention without proper justification. It follows that the complaint raised in the present application is based on clear and extensive Court ’ s case-law.

Turning next to the nature of the admissions contained in the Government ’ s declaration, the Court is satisfied that the Government does not dispute the allegations made by the applicant and has explicitly acknowledged that his pre-trial detention was in breach of Article 5 § 3 of the Convention.

As to the intended redress to be provided to the applicant, the Government have undertaken to pay him a certain amount as just satisfaction. The Government have committed themselves to effecting the payment of this sum within three months of the Court ’ s decision, with default interest to be payable in the event of a delay in settlement.

The Court is satisfied that the proposed sum is not unreasonable in comparison with the awards made by the Court in similar cases (see Yuriy Yakovlev v. Russia , no. 5453/08 , § 95, 29 April 2010; Valeriy Kovalenko v. Russia , no. 41716/08, § 67, 29 May 2012; Kislitsa v. Russia , no. 29985/05, § 49, 19 June 2012).

The Court therefore considers that it is no longer justified to continue examining this case. The Court is 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 the case. In any event, the Court ’ s decision is without prejudice to any decision it might take pursuant to Article 37 § 2 of the Convention to restore the application to its list of cases, should the Government fail to comply with the terms of their unilateral declaration (see Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006, and Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

In view of the above, it is appropriate to strike out this part of the application of the list.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 5 § 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike that part of the application concerning the applicant ’ s pre-trial detention between 3 September 2009 and 16 February 2011 out of its list of cases in accordance with Artic le 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 20 October 2016 .

FatoÅŸ Aracı Helena Jäderblom              Deputy Registrar President