Постановление Европейского суда по правам человека от 19.03.2009 «Дело Любименко (Lyubimenko) против России» [англ.]

not justify more than five years' detention pending investigation and trial (see Erdem v. Germany, No. 38321/97, § 46, ECHR 2001-VII (extracts)).
81. There has therefore been a violation of Article 5 § 3 of the Convention.

III. Alleged violation of Article 5 § 4 of the Convention

82. The applicant further complained under Article 6 § 3 (b) that he had been refused access to the materials submitted by the prosecution in support of their requests for an extension of his detention. The Court considers that this complaint falls to be examined under Article 5 § 4 (see Lamy v. Belgium, 30 March 1989, §§ 29 and 37, Series A No. 151), which provides:
"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."
83. The Court observes that the applicant did not raise this issue in his appeal submissions. Therefore, he did not afford the appeal court an opportunity to examine the alleged breaches of his right to challenge appropriately the reasons relied upon to justify his being remanded in custody and, if appropriate, to offer redress. The applicant has not provided any adequate explanation of why this complaint was not raised before the appeal court. The Court considers that the applicant has failed to exhaust domestic remedies in respect of this complaint, as required by Article 35 § 1. Accordingly, this complaint must be rejected pursuant to Article 35 § 4 of the Convention.

IV. Application of Article 41 of the Convention

84. 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

85. The applicant claimed 8,000 euros (EUR) in respect of non-pecuniary damage.
86. The Government submitted that the claim was excessive and was not supported by documents.
87. The Court considers that the applicant has suffered non-pecuniary damage as a result of his detention for more than five years in inhuman and degrading conditions. Moreover, his detention was not based on sufficient grounds. In these circumstances, the Court considers that the applicant's suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on it.

B. Costs and expenses

88. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.

C. Default interest

89. The Court considers it appropriate that the default interest 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

1. Declares the complaint concerning the inhuman conditions and excessive length of the applicant's detention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention;
3. Holds that there has been a violation of Article 5 § 3 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros), plus any tax that may be charge



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