I correctly predicted that there was a violation of human rights in GVISHIANI v. RUSSIA.
Information
- Judgment date: 2022-12-15
- Communication date: 2020-01-14
- Application number(s): 27766/19
- Country: RUS
- Relevant ECHR article(s): 5, 5-1-c
- Conclusion:
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.836415
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
Published on 3 February 2020 The applicant, Mr Gogita Anzorovich Gvishiani, is a stateless person, who was born in 1967 and is detained in Chita, the Zabaykalskiy Region.
He is represented before the Court by Ms M. Sheykina, a lawyer practising in Chita.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was placed in custody pending criminal proceedings against him.
His detention was extended on a number of times.
On 25 September 2017 the applicant began studying the case materials.
On 13 July 2018 the maximum eighteen-month period of pre-trial detention expired.
On 4 July, 8 August and 14 November 2018 the Zabaykalskiy Regional Court extended the applicant’s detention relying on Article 109 § 7 of the Criminal Procedure Code (“CCrP”) which allowed extending detention period in excess of the maximum period of eighteen months for the defendant to study the case-file.
The applicant appealed against the extension order of 14 November 2018.
He submitted that Article 109 § 7 allowed just one, but not multiple, extensions on that ground.
On 28 November 2018 his appeal was dismissed.
His argument concerning the prohibition of multiple extensions was not addressed.
On 13 February 2019 the Zabaykalskiy Regional Court extended the applicant’s detention based on Article 109 § 7 of the CCrP for a further three months.
On 22 February 2019 the extension order was upheld on appeal.
See the relevant domestic law and practice in the case of Suslov v. Russia, no.
2366/07, §§ 51-58 and §§ 63-68, 29 May 2012.
On 7 January 2019 a new amendment of the CCrP entered into force.
Article 109 § 8 (1) was supplemented by the following phrase: “...Extension of detention period on the grounds set by Article 109 § 7 of the CCrP is permissible for not more than three months each time”.
COMPLAINT The applicant complains under Article 5 § 1 of the Convention that his detention exceeding the statutory eighteen-month limit is unlawful under the national law as Article 109 § 7 of the CCrP does not allow multiple extensions.
Judgment
THIRD SECTIONCASE OF GVISHIANI v. RUSSIA
(Application no. 27766/19)
JUDGMENT
STRASBOURG
15 December 2022
This judgment is final but it may be subject to editorial revision. In the case of Gvishiani v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President, Ioannis Ktistakis, Andreas Zünd, judges,and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 24 November 2022,
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 26 April 2019. 2. The applicant was represented by Ms M.S. Sheykina, a lawyer practising in Chita. 3. The Russian Government (“the Government”) were given notice of the application. THE FACTS
4. The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant complained of the excessive length of his pre-trial detention and detention pending trial. He also raised other complaints under the provisions of the Convention. THE LAW
6. The applicant complained principally that his pre-trial detention and detention pending trial had been unreasonably long. He relied on Article 5 § 3 of the Convention, which reads 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.”
7. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‐XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‐X, with further references). 8. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, 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 length of the applicant’s pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. 11. The applicant also complained under Article 5 § 1 of the Convention about excessively lengthy detention in violation of domestic law. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 5 § 3 of the Convention, the Court considers that it has examined the main legal questions raised in the present application with regard to Article 5 of the Convention. It thus considers that the applicant’s complaint is admissible but that there is no need to give a separate ruling on the complaint under Article 5 § 1 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). 12. 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.”
13. Regard being had to the documents in its possession and to its case‐law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sum indicated in the appended table. 14. The Court further 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 amount 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 amounts 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 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Darian Pavli Acting Deputy Registrar President
APPENDIX
Application raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
Application no. Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Period of detention
Court which issued detention order/examined appeal
Length of detention
Specific defects
Amount awarded for non-pecuniary damage and costs and expenses
(in euros)[1]
27766/19
26/04/2019
Gogita Anzorovich GVISHIANI
1967
Sheykina Marina Sergeyevna
Chita
01/02/2018 to
11/02/2022
Tsentralnyy District Court of Chita; Zabaykalskiy Regional Court
4 year(s) and 11 day(s)
fragility and repetitiveness of the reasoning employed by the courts as the case progressed; persistent reliance, as the case progressed, on charges concerning membership of an organised criminal group
4,250
[1] Plus any tax that may be chargeable to the applicant. THIRD SECTION
CASE OF GVISHIANI v. RUSSIA
(Application no. 27766/19)
JUDGMENT
STRASBOURG
15 December 2022
This judgment is final but it may be subject to editorial revision. In the case of Gvishiani v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President, Ioannis Ktistakis, Andreas Zünd, judges,and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 24 November 2022,
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 26 April 2019. 2. The applicant was represented by Ms M.S. Sheykina, a lawyer practising in Chita. 3. The Russian Government (“the Government”) were given notice of the application. THE FACTS
4. The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant complained of the excessive length of his pre-trial detention and detention pending trial. He also raised other complaints under the provisions of the Convention. THE LAW
6. The applicant complained principally that his pre-trial detention and detention pending trial had been unreasonably long. He relied on Article 5 § 3 of the Convention, which reads 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.”
7. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‐XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‐X, with further references). 8. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, 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 length of the applicant’s pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. 11. The applicant also complained under Article 5 § 1 of the Convention about excessively lengthy detention in violation of domestic law. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 5 § 3 of the Convention, the Court considers that it has examined the main legal questions raised in the present application with regard to Article 5 of the Convention. It thus considers that the applicant’s complaint is admissible but that there is no need to give a separate ruling on the complaint under Article 5 § 1 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). 12. 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.”
13. Regard being had to the documents in its possession and to its case‐law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sum indicated in the appended table. 14. The Court further 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 amount 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 amounts 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 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Darian Pavli Acting Deputy Registrar President
APPENDIX
Application raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
Application no. Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Period of detention
Court which issued detention order/examined appeal
Length of detention
Specific defects
Amount awarded for non-pecuniary damage and costs and expenses
(in euros)[1]
27766/19
26/04/2019
Gogita Anzorovich GVISHIANI
1967
Sheykina Marina Sergeyevna
Chita
01/02/2018 to
11/02/2022
Tsentralnyy District Court of Chita; Zabaykalskiy Regional Court
4 year(s) and 11 day(s)
fragility and repetitiveness of the reasoning employed by the courts as the case progressed; persistent reliance, as the case progressed, on charges concerning membership of an organised criminal group
4,250
Application no. Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Period of detention
Court which issued detention order/examined appeal
Length of detention
Specific defects
Amount awarded for non-pecuniary damage and costs and expenses
(in euros)[1]
27766/19
26/04/2019
Gogita Anzorovich GVISHIANI
1967
Sheykina Marina Sergeyevna
Chita
01/02/2018 to
11/02/2022
Tsentralnyy District Court of Chita; Zabaykalskiy Regional Court
4 year(s) and 11 day(s)
fragility and repetitiveness of the reasoning employed by the courts as the case progressed; persistent reliance, as the case progressed, on charges concerning membership of an organised criminal group
4,250
[1] Plus any tax that may be chargeable to the applicant.