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Europejskiego Trybunału Praw Człowieka
z dnia 24 września 2019 r.
83594/17

UZASADNIENIE

Wstęp

ECLI:CE:ECHR:2019:0924JUD008359417

THIRD SECTION

CASE OF GEDZHADZE v. RUSSIA

(Application no. 83594/17)

JUDGMENT

STRASBOURG

24 September 2019

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

In the case of Gedzhadze v. Russia,

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

Alena Poláčková, President,

Dmitry Dedov,

Gilberto Felici, judges,

and Stephen Phillips, Section Registrar,

Having deliberated in private on 3 September 2019,

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

Postępowanie

PROCEDURE

1. The case originated in an application (no. 83594/17) 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 Georgian national, Mr Aleksandr Gedzhadze ("the applicant"), on 29 November 2017.

2. The applicant was represented by Ms O.V. Golub, a lawyer practising in Suzemka, Bryansk Region. The Russian Government ("the Government") were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

3. On 26 June 2018 notice of the complaints under Articles 3, 13, 5 §§ 1 (f) and 4 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. The applicant being of Georgian nationality, the Government of Georgia were informed about the application on 3 July 2018 and invited, if they so wish, to submit written comments on the case (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court). On 2 November 2018 they informed the Court that they will not submit written observations on the case.

Uzasadnienie faktyczne

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1984. In Italy the applicant is charged with armed robbery, inflicting grave bodily injuries and false imprisonment.

6. On 14 January 2017 he was apprehended in Sheremetyevo Airport in Moscow as a person under an Interpol search warrant originating from the Italian authorities. On the same day the Italian authorities submitted a request for the applicant's detention, note verbale of the Italian Embassy in Russia, decision of an Italian prosecutor to detain the applicant, excerpts of the Italian Criminal Code, fingerprinting card and other relevant documents.

7. On 16 January 2017 the applicant was detained pending extradition by the Khimkinskiy Town Court of the Moscow Region.

8. On 6 and 14 February 2017 the Italian authorities confirmed that they intended to pursue the extradition proceedings.

9. On 21 February, 19 May, 11 July and 13 October 2017 the Babushkinskiy District Court of Moscow extended the applicant's detention pending extradition. The detention orders were upheld on appeal by the Moscow City Court on 14 March, 15 June, 1 August and 14 November 2017 respectively.

10. The applicant applied for the refugee status in Russia on 6 March 2017 and requested temporary asylum on 15 June 2017. His requests were dismissed by the final decision of migration authorities on 25 October 2017 and the final judgment of the Moscow City Court on 24 April 2018.

11. In view of the applicant's repeated claims of possible ill-treatment in Italy, the Russian authorities requested additional assurances from the Italian Ministry of Justice, which were given on 16 August 2017 and 22 February 2018.

12. On 15 May 2018 the Prosecutor General's Office of Russia granted the extradition request. The decision was upheld by the final judgment of the Supreme Court of Russia on 4 September 2018.

13. On 13 July 2018 after expiry of the maximum period for detention pending extradition the applicant was released on his own recognizance.

RELEVANT DOMESTIC LAW

14. For relevant provisions of the domestic law and the domestic practice see Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 70-97, ECHR 2013 (extracts).

Uzasadnienie prawne

THE LAW

ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION

15. The applicant complained of violations of Articles 3 and 13 of the Convention on account of the conditions of detention in the IZ-77/4 between 16 January 2017 and 13 July 2018, the condition of his transportation on 21 February, 19 May, 11 July and 13 October 2017, as well as about being placed in a metal cage during the domestic court hearing on 14 November 2017 and absence of effective remedies in this regard.

16. On 23 October 2018 the Government submitted a unilateral declaration with a view to resolving the issues raised by the above complaints. They acknowledged the above violations of Articles 3 and 13 of the Convention. They offered to pay the applicant 8,000 euros (EUR) and invited the Court to strike the applications out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The payment will constitute the final resolution of the case.

17. The above amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court's decision. In the event of failure to pay these amounts within the above–mentioned three-month period, the Government undertook to pay simple interest on them, from the 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.

18. On 26 December 2018 the applicant accepted the terms of the Government's unilateral declaration.

19. The Court observes that Article 37 § 1 (c) enables it 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".

20. Noting the acknowledgement contained in the Government's declaration as well as the amount of compensation proposed - which is consistent with the amounts awarded in similar cases - the Court considers that it is no longer justified to continue the examination of the applications in the part covered by the unilateral declarations (Article 37 § 1 (c)).

21. In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application in that part (Article 37 § 1 in fine).

22. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

23. In view of the above, it is appropriate to strike the case out of the list as regards the complaints concerning the inadequate conditions of detention and transportation, as well as placing the applicant in a metal cage during a court hearing and absence of effective remedies in this regard.

ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

24. The applicant complained that his detention pending extradition had been unlawful. In his submissions he relied on Article 5 § 1 (f) 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 the following cases and in accordance with a procedure prescribed by law ...

(f) the lawful arrest or detention ... of a person against whom action is being taken with a view to deportation or extradition ..."

25. The Government contested that argument.

26. The Court reiterates that the exception contained in sub–paragraph (f) of Article 5 § 1 of the Convention requires only that "action is being taken with a view to deportation or extradition", without any further justification (see, inter alia, Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996–V), and that deprivation of liberty will be justified as long as deportation or extradition proceedings are in progress (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009). If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible (see Chahal, cited above § 113; see also Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 74, ECHR 2007-II). In asking whether "action is being taken with a view to deportation", this Court has found that removal must be a realistic prospect (see A. and Others, cited above, § 167, and Amie and Others v. Bulgaria, no. 58149/08, § 144, 12 February 2013).

27. The question of whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features (see, mutatis mutandis, McKay v. the United Kingdom [GC], no. 543/03, §§ 41-45, ECHR 2006–X) and that the arguments for and against release must not be "general and abstract" (see, for example, Khudoyorov v. Russia, no. 6847/02, § 173, ECHR 2005–X (extracts)), but contain references to the specific facts and the applicant's personal circumstances justifying his detention.

28. Turning to the present case the Court notes that the Government in their submissions maintained that the applicant's detention had been justified by the ongoing removal proceedings.

29. The applicant on the other hand stated that his detention pending extradition had been unlawful in absence of sufficient grounds for it. At the same time the applicant in his submission did not argue that the extradition proceedings were carried without requisite diligence, were conducted in bad faith, tainted by unjustified delays or otherwise deficient. Neither in the application form, nor in his observations the applicant highlighted facts or supplied legal reasons relevant for the analysis under the above principles under Article 5 § 1 (f) of the Convention.

30. The Court does not find it appropriate to rule in abstract and without relevant submissions from the applicant on whether in the light of the Convention standard the progress of the extradition proceedings justified his continued detention.

31. Given that the applicant had failed to substantiate his complaint with reference to the pertinent facts and relevant legal arguments, the Court concludes that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible.

ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

32. The applicant further complained under Article 5 § 4 of the Convention about allegedly excessive length of appeal review proceedings for the detention order of 13 October 2017 by the Babushkinskiy District Court of Moscow.

33. The Government did not submit any observations on this point.

34. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible.

35. The Court notes that the detention order of 13 October 2017 by the Babushkinskiy District Court of Moscow was reviewed on appeal on 14 November 2017 by the Moscow City Court, i.e. 32 days later. In absence of any persuasive justification for that delay, the Court considers that in the present case there has been a violation of Article 5 § 4 of the Convention on account of the excessive length of appeal review proceedings for the detention order of 13 October 2017.

OTHER ALLEGED VIOLATIONS OF THE CONVENTION

36. The applicant submitted further complaints under Article 5 § 4 of the Convention about allegedly excessive length of appeal review proceedings for the detention orders of 21 February, 19 May and 11 July 2017. The Court having regard to all of the available material and its case-law on the matter concludes that these complaints are manifestly ill-founded and must be rejected under Article 35 § 3 (a) of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

37. 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."

A. Damage

38. The applicant claimed 25,000 euros (EUR) in respect of non–pecuniary damage and EUR 2,000 in respect of pecuniary damage.

39. The Government did not comment in this regard.

40. The Court notes that the applicant specified neither the nature of the alleged pecuniary damage, nor the purported method of calculation. Accordingly, the applicant's claims in this regard must be dismissed in full.

41. As regards the non-pecuniary damage, the Court having regard to the violation of Article 5 § 4 of the Convention established above and acting on an equitable basis awards the applicant EUR 1,000.

B. Costs and expenses

42. The applicant also claimed the costs and expenses incurred before the Court in the amount of EUR 6,000 for the services of Ms Olga Golub and Ms Roza Magomedova as well as EUR 420 for "postal and administrative expenses". In support of the claim a receipt of 10 May 2017 issued by Ms Golub for 29,000 Russian roubles (approximatively EUR 510) was attached to the applicant's submission.

43. The Government did not comment in this regard.

44. According to the well-established case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum.

45. Turning to the present case the Court notes at the outset that that the costs and expenses are claimed for the legal services of Ms Olga Golub and Ms Roza Magomedova. However, it is striking that any claim should be made in connection with Ms Magomedova's alleged legal services, since the case file contains neither an authority form in her name, nor any submissions on her part. Further, the receipt of 10 May 2017 issued by Ms Golub contains no indication that the amount claimed is related in any way with the proceedings before this Court. Lastly, the applicant's claim in respect of either of the above persons is not supported by any contract or other document which legally binds the applicant to cover the amounts claimed.

46. Accordingly, the Court rejects the applicant's claim for costs and expenses.

C. Default interest

47. 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.

Sentencja

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Takes note of the terms of the respondent Government's declaration, in so far as it concerns the inadequate conditions of detention and transportation, as well as placing the applicant in a metal cage during a court hearing and absence of effective remedies in this regard, and of the arrangements for ensuring compliance with the undertakings referred to therein;

2. Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

3. Declares the complaint under Article 5 § 4 of the Convention concerning allegedly excessive length of appeal review proceedings for the detention order of 13 October 2017 admissible and the remainder of the application inadmissible;

4. Holds that there has been a violation of Article 5 § 4 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 and that this amount is 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;

6. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 24 September 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips

Alena Poláčková

Registrar

President