THIRD SECTION

CASE OF MERZLYAKOV v. RUSSIA

( Application no. 12590/17 )

JUDGMENT

STRASBOURG

1 0 June 2021

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

In the case of Merzlyakov 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 20 May 2021 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 February 2017.

2 . The applicant was represented by Ms R. Magomedova , a lawyer practising in Moscow.

3 . The Russian Government (“the Government”) were given notice of the application.

4 . The Ukrainian Government exercised their right to intervene under Article 36 § 1 of the Convention and Rule 44 of the Rules of the Court and submitted written comments on the merits of the application.

THE FACTS

5 . The applicant ’ s details and other information relevant to the application are set out in the appended table.

6 . The applicant complained of the lack of speedy review of the lawfulness of his detention . He also raised other complaints under the provisions of the Convention.

THE LAW

7 . The applicant complained that his appeals against the detention orders of 15 August and 9 November 2016 had not been decided “speedily”. He relied on Article 5 § 4 of the Convention , which read s as follows:

“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.”

8 . The Russian Government admitted that the applicant ’ s appeals had not been considered speedily. The Ukrainian Government made no comments on the alleged violation of Article 5 § 4 of the Convention. The applicant maintained his complaint.

9 . The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and the ordering of its termination if it proves unlawful (see Baranowski v. Poland , no. 28358/95, § 68, ECHR 2000-III). Where an individual ’ s personal liberty is at stake, the Court has very strict standards concerning the State ’ s compliance with the requirement of speedy review of the lawfulness of detention (see, for example, Kadem v. Malta , no. 55263/00, §§ 44-45, 9 January 2003, where the Court considered a time period of seventeen days in deciding on the lawfulness of the applicant ’ s detention to be excessive, and Mamedova v. Russia , no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter alia , twenty-six days, was found to be in breach of the “speediness” requirement of Article 5 § 4).

10 . In the leading cases of Idalov v. Russia [GC], no. 5826/03, §§ 152 ‑ 58, 22 May 2012, and Khodorkovskiy v. Russia , no. 5829/04, §§ 237-41, 31 May 2011, the Court already found a violation in respect of the issues similar to those in the present case.

11 . Having examined all the material submitted to it and taking into account the Government ’ s acknowledgement of the violation of the applicant ’ s rights (see paragraph 8 above), 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 appeal proceedings for the review of the lawfulness of the applicant ’ s detention cannot be considered compatible with the requirements set out in Article 5 § 4 of the Convention.

12 . These complaints are therefore admissible and disclose a breach of Article 5 § 4 of the Convention.

13 . The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see the appended table).

14 . The Russian Government discerned no violation of the applicant ’ s rights. The Ukrainian Government stated that there was a violation of Article 3 of the Convention. The applicant maintained his complaints.

15 . Those 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 a violation of the Convention in the light of its well-established case-law (see Idalov v. Russia [GC], no. 5826/03, §§ 103-08, 22 May 2012, and Tomov and Others v. Russia , nos. 18255/10 and 5 others, §§ 92-156, 9 April 2019, concerning conditions of detention during transport and lack of an effective remedy in that respect) .

16 . The applicant also raised other complaints under various Articles of the Convention.

17 . The Court has examined the application 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.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 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 . Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Pukhachev and Zaretskiy v. Russia , nos. 17494/16 and 29203/16 , § § 14-16, 7 November 2017, Doherty v. the United Kingdom, no. 76874/11, §§ 113-15, 18 February 2016, and Karaosmanoglu and Özden v. Turkey, no. 4807/08, §§ 89-91, 17 June 2014), the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicant ’ s claims for just satisfaction.

20 . 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,

(a) that the respondent State is to pay the applicant, 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 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 10 June 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

{signature_p_2}

Viktoriya Maradudina Darian Pavli

             Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 5 § 4 of the Convention

( deficiencies in proceedings for review of the lawfulness of detention )

Application no.

Date of introduction

Applicant ’ s name

Year of birth

Representative ’ s name and location

First-instance court and date of detention order

Appeal instance court and date of decision

Procedural deficiencies

Other complaints under well-established case-law

Amount awarded for pecuniary and non ‑ pecuniary damage per applicant

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

12590/17

05/02/2017

Maksim Sergeyevich MERZLYAKOV

1983Magomedova Roza Saidovna

Moscow

Babushkinskiy District Court of Moscow on

15/08/2016;

Moscow City Court on 9/11/ 2016

Moscow City Court on

14/09/2016;

Appellate Division of the Moscow City Court on 13/12/2016

lack of speediness of review of detention ( Idalov v. Russia [GC], no. 5826/03, §§ 154-58, 22/05/2012)

Art. 3 - inadequate conditions of detention during transport - numerous occasions of transport between the detention facility and the courthouse by van, from 17/12/2015 and 09/11/2016; lack of fresh air, lack of or inadequate hygienic facilities, lack or insufficient quantity of food, no or restricted access to potable water, overcrowding

Art. 13 - lack of any effective remedy in domestic law in respect of inadequate conditions of detention during transport

1,500

850[1] Plus any tax that may be chargeable to the applicant.

[2] Plus any tax that may be chargeable to the applicant.