FIRST SECTION
CASE OF SERGEY
SOLOVYEV v. RUSSIA
(Application no.
22152/05)
JUDGMENT
STRASBOURG
25 September 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Sergey Solovyev v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
NinaVajić, President,
AnatolyKovler,
PeerLorenzen,
ElisabethSteiner,
KhanlarHajiyev,
Linos-AlexandreSicilianos,
ErikMøse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 4 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
22152/05) 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 Russian national, Mr Sergey Yuryevich Solovyev (“the
applicant”), on 30 May 2005.
The applicant was represented by Mr V. Klimashin,
a lawyer practising in Volgograd. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The applicant complained, in particular, under
Article 5 of the Convention that he had been unlawfully detained.
On 29 January 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (former Article 29
§ 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1982 and lives in Volgograd.
A. Proceedings concerning the applicant’s detention
On 10 March 2003 the applicant was arrested on
suspicion of involuntary manslaughter. On an unspecified date he retained
private counsel, A.B.
On 11 March 2003 the Krasnoarmeyskiy District
Court of Volgograd (hereinafter “the District Court”) ordered the applicant’s
detention on remand with reference to Articles 97-101 and 108 of the Russian
Code of Criminal Procedure (hereinafter “the CCP”).
On 19 March 2004 the criminal case against the
applicant was sent for trial to the District Court, following which that court
extended his detention on several occasions.
By a decision of 21 December 2004 the District
Court extended the applicant’s detention until 20 March 2005.
On an unspecified date in March 2005 the
prosecution applied to the District Court seeking a further extension of the
applicant’s detention on remand; the related hearing was fixed for 17 March
2005.
By a
decision of 17 March 2005 the District Court adjourned the hearing on the
extension of the applicant’s detention because his lawyer, although duly
notified about the hearing, had failed to attend, without providing any
reasons. The new hearing was scheduled for 22 March 2005. The applicant was
present at the hearing of 17 March 2005.
At noon on
21 March 2005 the applicant’s lawyer was notified of the new hearing date, time
and venue, against his signature.
By a decision of 22
March 2005 the District Court extended the applicant’s detention until 20 June
2005. The decision stated, among other things, that the term of the applicant’s
detention authorised by the decision of 21 December 2004 had expired on 20
March 2005. According to the hearing record, the applicant’s lawyer did not
attend and had not informed the court of the reasons for his absence. The applicant,
when asked by the court whether he objected to the examination of the issue in
the absence of his counsel, stated that he had no objections.
On an
unspecified date the applicant complained to the Volgograd Regional Court
(hereinafter “the Regional Court”) that his detention between 20 and 22
March 2005 had been unlawful because it had not been covered by a court
decision. He also complained that on 22 March 2005 the District Court had
examined the issue of his detention in the absence of his lawyer. There is no
indication that the applicant also complained about the District Court’s
alleged failure to appoint legal-aid counsel for him or to adjourn the hearing.
On 26 April
2005 the Regional Court dismissed the complaint. It held that the applicant’s
arguments concerning the gap between the detention orders and the examination
of the detention issue in the absence of his lawyer were “insignificant” (“неявляютсясущественными”),
and that the District Court had not breached the relevant provisions of the
criminal procedure in extending his detention. As regards the lawyer’s absence,
the court noted that A.B. had been duly notified of the hearing of 22 March
2005 against his signature and had not requested that it be postponed, and
that, accordingly, the District Court had correctly decided to proceed with the
examination of the case.
B. The applicant’s acquittal and the related
compensation proceedings
On 16 March 2006 the District Court acquitted
the applicant of all charges and ordered his release. The judgment stated,
among other things, that the applicant had a right to seek compensation for any
pecuniary and non-pecuniary damage caused by his criminal prosecution.
On an unspecified date in 2007 the applicant
brought proceedings seeking compensation for his criminal prosecution and for
unlawful detention. He claimed, in particular, 736,000 Russian roubles (RUB) in
respect of non-pecuniary damage, and RUB 177,355 in respect of pecuniary
damage.
By a judgment
of 6 March 2007 the District Court partly granted the applicant’s claims,
awarding him RUB 137,377 in respect of pecuniary damage and RUB 400,000 in
respect of non-pecuniary damage, to be recovered from the Federal Treasury. The
court’s judgment, in so far as relevant, reads as follows:
“...
Bearing in mind that [the applicant] was acquitted, that is, found
not guilty of the particularly serious crime of which he had been charged ...
the court finds that [the applicant] was unlawfully prosecuted and unlawfully
held in detention ... and ... sustained, as a result, pecuniary damage because
of loss of salary, and non-pecuniary damage on account of mental suffering in
the form of continuing stress because of being held in a detention facility,
... a special institution with a strict regime; [and because of] the
restriction of his right to freedom of movement and anxiety about his future
...
...
Having regard to the fact that [the applicant’s] criminal
prosecution resulted in an acquittal, the court considers it obvious and not
requiring any additional proof that the plaintiff sustained non-pecuniary
damage because, as a result of unlawful acts by State officials, he was
deprived of his right to freedom of movement and his right to choose his place
of residence was circumscribed.
In assessing the amount of the monetary compensation, the court
takes into account the intensity of [the applicant’s] mental suffering related
to [the fact of his] detention, including the unavoidable contact with the
prison population, the restrictions connected to the particular regime of the
detention facility [and] the length of [his] detention on remand (over 24
months)[, which took place] while [the applicant] was of a young age.
At the same time, the court takes account of the fact that the
[applicant’s] arrest [and] placement in custody and the extension of [his]
detention were carried out in accordance with the law of criminal procedure [врамках, предусмотренныхуголовно-процессуальнымзаконом],
there being sufficient grounds to suspect and charge [him] of having committed
a particularly serious crime entailing the deprivation of life of the victim;
during the criminal proceedings [the applicant’s] defence rights were secured;
it has not been established that there were faulty unlawful acts on the part of
the investigating authorities, the detention facility or the courts.”
On an unspecified date in 2007 the respondent
appealed against the judgment of 6 March 2007 to the Regional Court.
By a judgment
of 24 May 2007 the Regional Court granted the appeal in part. In particular,
whilst endorsing the trial court’s reasoning, the Regional Court considered
that “the requirements of Article 1101 of the Civil Code concerning
reasonableness and justice in determining the amount of compensation for
non-pecuniary damage”, as well as “the specific circumstances of the case”,
called for a reduction of the amount of the award to RUB 100,000. The court
upheld the first-instance judgment in the remaining part.
On 27 August 2007
the Presidium of the Volgograd Regional Court examined the case by way of
supervisory review, set aside the courts’ findings in respect of the award
concerning pecuniary damage, and terminated the proceedings in that part. In
that regard, the court held that, pursuant to Article 135 of the CCP,
claims for compensation for pecuniary damage arising out of an unlawful
prosecution fell within the competence of the criminal courts and were to be
examined under the rules of criminal procedure.
It appears that the
applicant was paid the compensation in respect of non-pecuniary damage without
delay. There is no indication that he applied to the criminal courts with a
view to obtaining compensation in respect of pecuniary damage, as directed by
the Presidium of the Volgograd Regional Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions concerning detention on remand
The Russian
Constitution of 12 December 1993 establishes that a judicial decision is
required before a defendant can be detained or his detention extended (Article
22).
According to
the Russian Code of Criminal Procedure (hereinafter “the CCP”), a decision
ordering or extending detention on remand in respect of a suspect or an accused
is taken by a district or town court on the basis of a reasoned request by a
prosecutor, supported by appropriate evidence (Articles 108 §§ 1, 3-6 and 109 §
2).
B. Right to compensation for unlawful criminal
prosecution
1. The CCP
Chapter 18 of
the Code regulates the so-called “right to rehabilitation” (правонареабилитацию),
which includes, among other things, the right for an individual to obtain from
the State full compensation for pecuniary and non-pecuniary damage sustained as
a result of criminal prosecution, irrespective of any fault of the investigating
authorities, prosecutors or courts (Article 133 § 1).
The right to compensation arises in the case of
acquittal and also a number of other situations where the criminal prosecution
is terminated on so-called “rehabilitation” grounds (реабилитирующиеоснования),
that is, for example, where the prosecution has dropped the charges or where
criminal proceedings have been terminated owing to a lack of corpus delicti
or because the person was not involved in the criminal act (Article 133 § 2).
However, no right to compensation arises where the prosecution is terminated on
“non-rehabilitation” grounds, such as in the case of an amnesty or where the
prosecution has become time-barred (Article 133 § 4).
Article 133 § 3 specifically provides that any
person on whom a measure of restraint has been unlawfully imposed in connection
with a criminal prosecution has a right to compensation under the rules of
Chapter 18.
In a judgment
acquitting an individual a court has to mention explicitly that he has the
right to “rehabilitation” (Article 134). A claim for compensation of
pecuniary damage is to be lodged with the same authority which issued the
decision to acquit or the decision to terminate the criminal prosecution
(Article 135 § 2), whereas any claims for monetary compensation of
non-pecuniary damage are to be lodged with civil courts and examined under the
relevant provisions of the Code of Civil Procedure (Article 136 § 2).
2. The Civil Code
The Civil Code
of the Russian Federation provides as follows:
Article 1070: Responsibility for damage caused by unlawful
acts of
investigating authorities, prosecuting authorities and courts
“1. Damage caused to a citizen as a result of
unlawful conviction, unlawful criminal prosecution, ... [or] unlawful detention
on remand ... shall be compensated at the expense of the Treasury of the
Russian Federation, and in the instances provided for by law, at the expense of
the Treasury of the subject of the Russian Federation ... in full, irrespective
of the fault of the officials of the agencies ...”
Article 1100: Grounds for compensation for non-pecuniary
damage
“Compensation for non-pecuniary damage shall be made
irrespective of the fault of the person having caused the damage when:
... the damage has been caused to a citizen as a result of his
unlawful conviction, unlawful criminal prosecution, [or] unlawful detention on
remand ...”
3. Case-law of the Constitutional Court and the
Supreme Court of Russia
In its ruling (определение)
no. 242-O of 21 April 2005 the Constitutional Court held, inter alia, as
follows:
“ ... Article 133 of the [CCP] ... does not limit an
individual’s right to obtain compensation in connection with a criminal
prosecution only to situations of rehabilitation of a suspect or an accused ...
Accordingly, in providing that pecuniary and non-pecuniary
damage sustained by a citizen as a result of, among other things, unlawful ...
detention, is to be compensated for irrespective of the fault of the relevant
officials, Articles 1070 § 1 and 1100 § 3 of the Civil Code of the Russian
Federation do not make the issuing of such decisions conditional upon the existence
of a judgment acquitting the citizen ...
Hence, the legislation in force ... does not exclude that a
court can also issue a decision to compensate a citizen for pecuniary and
non-pecuniary damage sustained as a result of unlawful prosecution and ... unlawful
detention in cases where an investigating authority, a prosecutor or a court
did not take a decision on the full rehabilitation [решениеополнойреабилитации]
of a suspect or an accused...”
In its ruling
no. 47-O-O of 18 January 2011 the Constitutional Court reiterated that
Article 133 of the CCP and the related provisions of the Code of Civil
Procedure did not make an award of compensation in respect of pecuniary or
non-pecuniary damage conditional upon an acquittal and that the relevant
provisions did not exclude the possibility for courts to make such an award in
respect of damage sustained as a result of criminal prosecution in other
situations, account being taken of the particular circumstances of the case.
The Constitutional
Court specifically noted in its ruling no. 1583‑O‑O of 17
November 2011 that, pursuant to Article 133 § 3 of the CCP, any person who was
unlawfully held in detention in connection with his criminal prosecution had a
right, under the rules of Chapter 18 of the CCP, to compensation for the
damage sustained.
In its resolution (постановление)
no. 17 of 29 November 2011, the Plenary of the Supreme Court of Russia
provided clarifications on the application by the courts of the provisions
concerning compensation for pecuniary and non-pecuniary damage sustained as a
result of unlawful criminal prosecution. It noted, among other things, that in assessing
claims for compensation of non-pecuniary damage the domestic courts were to
take into account the level and nature of the physical and mental suffering and
the individual characteristics of the person who had sustained the damage, and
other circumstances, such as the length of the proceedings against him, the
length and conditions of his detention on remand, and the type of penitentiary
institution where he had served his sentence, as well as considerations of
justice and reasonableness. The courts were also directed to set out those
circumstances in their decisions awarding damages.
On the notion of “unlawfulness” of criminal
prosecution and detention, as interpreted by the Russian courts, see Trepashkin
v. Russia (no. 36898/03, § 62, 19 July 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained under Articles 5 and 6
of the Convention that his detention between 20 and 22 March 2005 had been
unlawful. The Court considers that this complaint falls to be examined under
Article 5 § 1 (c) 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:
...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so;
...”
A. Submissions by the parties
The Government argued that the applicant could
no longer claim to be a “victim” of the alleged breach of Article 5 of the
Convention because the domestic courts had declared his detention on remand
unlawful and had awarded him compensation of RUB 100,000. They stated, in
particular, that the courts had found unlawful the entire period of the
applicant’s detention on remand, which, in the Government’s submission, was to
be understood as also covering the time span between 20 and 22 March 2005
in respect of which the applicant had complained to the Court. The Government
concluded that the domestic authorities had not only acknowledged the breach of
the applicant’s rights but had also afforded him appropriate redress.
The applicant stressed that the domestic courts
had declared his detention on remand unlawful only after his acquittal, and
that when he had complained to the Regional Court that his detention between 20
and 22 March 2005 had been unlawful, it had dismissed his submissions,
stating that the irregularity in question was “insignificant”. The applicant
therefore considered that he retained “victim” status.
B. The Court’s assessment
1. Admissibility
Having regard to the parties’ submissions, the
Court has first to assess whether the applicant has ceased to be a “victim” of
the alleged breach of Article 5, as argued by the Government.
In this regard the Court reiterates that it
falls first to the national authorities to redress any alleged violation of the
Convention. At the same time, a decision or measure favourable to the applicant
is not, in principle, sufficient to deprive him of his status as a “victim” for
the purposes of Article 34 of the Convention unless the national authorities
have acknowledged, either expressly or in substance, and then afforded redress
for the breach of the Convention (see Gäfgen v. Germany [GC],
no. 22978/05, § 115, ECHR 2010, with further references).
The Government submitted that the domestic
courts’ findings in the compensation proceedings to the effect that the
applicant’s detention had been unlawful were to be regarded as covering the
entire period of his detention, including the impugned time span between 20 and
22 March 2005.
In this connection, the Court notes at the
outset that it has already had an opportunity to examine similar arguments by
the Government in a number of cases involving “rehabilitation proceedings”
where the Russian courts found the applicants’ detention on remand unlawful
following their acquittal (see, for example, Trepashkin v. Russia, cited
above, §§ 69-70, and Shcherbakov v. Russia, no. 23939/02, §§ 55-63, 17 June 2010).
In particular, in its Trepashkin judgment
the Court pointed out that although the domestic courts’ findings concerning
the unlawfulness of the applicant’s detention resulted from his acquittal and
the courts had not analysed in detail his specific submissions under Article 5
concerning the irregularities in his detention, it was prepared to assume that
the relevant decisions contained, at least in substance, an acknowledgment of a
breach of his rights under Article 5. Emphasising that it would not adopt an
approach of excessive formalism, the Court reasoned that the “unlawfulness”
ascertained by the domestic courts was of a more general character than the
“unlawfulness” referred to by the applicant (see Trepashkin, cited
above, §§ 69-70).
Having regard to the cases mentioned above and
to the relevant provisions of the domestic law, as construed by the national
courts (see paragraphs 25-32 above), the Court reaffirms, on a more general
level, that it cannot be excluded that an acquitted applicant who is no longer
detained under Article 5 § 1 (c) and who has duly pursued compensation proceedings
and has been awarded damages under the above-mentioned provisions, may cease to
be a “victim” of the alleged breach of his rights under
Article 5 § 1(c), provided that the relevant decisions of the
domestic courts comply with the requirements of acknowledgment and redress, as
set down in the Court’s case-law. In this regard it also takes note of the
decisions of the Constitutional Court, which appear to suggest that an
opportunity to seek damages in connection with the unlawfulness of one’s
detention is, moreover, not limited to situations of acquittal (see, in
particular, paragraphs 30-32 above).
In any event, the Court reiterates that its task
is not to review the compatibility of the relevant law and practice with the
Convention in abstracto (see, for example, Brogan and Others v. the
United Kingdom, 29 November 1988, § 53, Series A no. 145‑B), but
to determine, as has been pointed out above, whether the applicant in the
present case can still claim to be a “victim” of the alleged breach of his
rights under Article 5 § 1 of the Convention.
Turning to the circumstances of the case, and
having regard to the parties’ submissions and the decisions of the domestic
courts, the Court finds that it cannot accept the Government’s argument as
convincing for the following reasons.
As regards the acknowledgment of the alleged breach
of the applicant’s rights, the Court reiterates that the gist of the
applicant’s complaint is the alleged unlawfulness of his detention between 20
and 22 March 2005, owing to the lack of judicial authorisation for it. It
is further pointed out that the applicant duly brought his grievance to the
attention of the Regional Court when challenging the decision of 22 March
2005 on appeal (see paragraph 14 above), and it follows from the District and
the Regional Courts’ decisions that both authorities had no doubts about the
existence of the impugned gap between his detention orders (see
paragraphs 13 and 15 above).
However, the Regional Court dismissed the
applicant’s arguments as “insignificant”, finding that the District Court had
not breached the applicable rules of criminal procedure in extending his
detention (see paragraph 15 above). In other words, it remains unclear if the Regional Court acknowledged the alleged breach of the applicant’s rights on account of the
gap between the detention orders.
The Court further observes that in the
compensation proceedings which followed the applicant’s acquittal the District
Court found that his prosecution had been unlawful and also noted that he had
been “unlawfully held in detention” (see paragraph 18 above). At the same time
and in the same judgment the court held that “the [applicant’s] arrest [and]
placement in custody and the extension of [his] detention were carried out in
accordance with the law of criminal procedure” (ibid.).
Having regard to what has been stated above, the
Court considers that the findings of the domestic courts in the detention and
compensation proceedings are unclear and ambiguous, as regards the
acknowledgment of the alleged breach of the applicant’s rights. The Government
failed to explain why, in their view, the Court in its assessment should prefer
the findings of the courts in the compensation proceedings over those in the detention
proceedings and also provided no explanation for the discrepancies in the
District Court judgment of 6 March 2007 mentioned above. In this connection the
Court specifically notes that the present case has to be distinguished from the
Trepashkin case mentioned above, where the domestic courts had
unequivocally established the unlawfulness of the impugned period of the
applicant’s detention before he was acquitted and awarded damages in the
compensation proceedings (see judgment cited above, § 12). Therefore it has
serious doubts as to whether the domestic authorities can be said to have
acknowledged, even in substance, the alleged breach of the applicant’s rights
in the present case.
In any event, even assuming that they did so,
the Court is not persuaded that the applicant was afforded adequate redress.
In this connection the Court reiterates that it
is prepared to accept that monetary compensation for damage can constitute
“appropriate” redress for an applicant who, by the time he is awarded it, is no
longer in detention (see Trepashkin, cited above, § 72, with further
references).
It remains to be ascertained whether the redress
afforded to the applicant can be considered “sufficient” (see Shilbergs v. Russia, no. 20075/03, §§ 72-74,
17 December 2009)
In this regard the Court points out that after
the decisions of the courts in the compensation proceedings had been set aside
in the part concerning compensation for pecuniary damage, it was open to the
applicant to seek those damages in the criminal courts, but there is no
indication that he availed himself of that possibility (see paragraphs 21 and 22
above). Nor did he raise this specific issue in his submissions to this Court.
As to the
awardin respect of non-pecuniary damage, the Court notes that it is unable to
assess whether it was “sufficient”. In particular, when applying for
compensation the applicant did not specifically complain about the gap between
the detention orders (see, by contrast, Trepashkin, cited above,
§ 12), which the Court does not find unreasonable, given that the Regional
Court, by a final decision, had already dismissed those submissions duly raised
by the applicant when he was still in detention. Hence, whilst in Trepashkin
the applicant’s complaint to the courts in the compensation proceedings about a
specific period of his detention enabled the Court, among other things, to
accept that he had been awarded damages on that account, it cannot reach a
similar conclusion in the present case. Moreover, while in the present case the
domestic courts referred to the applicant’s detention when making their award,
the gist of their findings appears to have concerned mostly the unlawfulness of
the applicant’s criminal prosecution.
In sum, having regard to what has been stated
above, the Court dismisses the Government’s argument and holds that the
applicant may still claim to be a “victim” of the alleged breach of his rights
under Article 5 § 1 of the Convention.
It further notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that it not inadmissible on any other grounds. It must therefore
be declared admissible.
2. Merits
The Court notes, and this was not disputed by
the parties, that there was no valid judicial authorisation for the applicant’s
detention on 21 March and until the new detention order was issued on 22 March
2005.
In this regard it reiterates that for detention
to meet the standard of “lawfulness” it must have a basis in the domestic law
(see, among many other authorities, Khudoyorov v. Russia, no. 6847/02, §
149, ECHR 2005‑X (extracts)).
In examining the applicant’s complaint the Regional Court found that his arguments concerning the lack of judicial authorisation for his
detention on 21 March 2005 were “insignificant”. The Court will not dwell upon
the exact meaning of that statement, which remains rather unclear. It notes,
however, that both the District and the Regional Courts acknowledged that there
had been a gap between the applicant’s detention orders.
It further observes that the Government did not
refer to any legal provisions permitting an accused to continue to be held in
custody once the authorised period of his detention had expired (see ibid.)
Moreover, it follows from the relevant provisions of the domestic law that the
power to extend the detention of an accused in criminal proceedings is vested
in courts and that no exceptions to that rule are permitted or provided for, no
matter how short the duration of the detention (see paragraphs 23 and 24 above;
Khudoyorov, cited above, § 149; Lebedev v. Russia, no. 4493/04, § 59,
25 October 2007; compare Nikolov v. Bulgaria,no. 38884/97, § 85,
30 January 2003; Salayev v. Azerbaijan, no. 40900/05, §§ 46-48, 9 November 2010).
Accordingly, having regard to the fact that during the relevant period of time
there was no judicial decision authorising the applicant’s detention, the Court
concludes that his detention on 21 March 2005 and until the new detention order
was issued on 22 March 2005 was “unlawful” (see also Starokadomskiy v.
Russia, no. 42239/02, §§ 62-64, 31 July 2008).
It follows that there has been a violation of
Article 5 § 1 (c) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The applicant further complained under Articles
5 and 6 of the Convention that on 22 March 2005 the District Court had examined
the prosecution’s request for the extension of his detention in the absence of
his counsel, and that it had not considered appointing legal-aid counsel for
him or adjourning the hearing. The Court will examine this complaint under
Article 5 § 4 of the Convention (see Khodorkovskiy v. Russia, no.
5829/04, § 203, 31 May 2011, and
Sokurenko v. Russia, no. 33619/04, §§ 94-95, 10 January 2012). Article 5 § 4 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.”
The Court notes that in the detention
proceedings the applicant was represented by a private counsel and that on
17 March 2005 the District Court decided to postpone the hearing on the
applicant’s detention because of his lawyer’s absence. It follows from the
relevant court decision (see paragraph 11 above) – and this was not contested
by the applicant – that his counsel was duly apprised of the hearing of 17
March 2005 and did not request that it be postponed, or otherwise refer to any
reasons preventing him from attending. It can furthermore be seen from the
material available to the Court that the applicant’s lawyer failed to attend
the rescheduled hearing of 22 March 2005, despite the fact the he had been
notified of it against his signature the day before (see paragraph 12 above).
According to the hearing record, the applicant, when duly consulted by the
District Court, confirmed that he had no objections to the examination of the
detention issue in the absence of his counsel (see paragraph 13 above).
The Court reiterates that detention proceedings
require special expedition and Article 5 does not contain any explicit mention
of a right to legal assistance in this connection. The difference in aims
explains why Article 5 contains more flexible procedural requirements than
Article 6 while being much more stringent as regards speediness. Therefore, as
a rule, the judge may decide not to wait until a detainee avails himself of
legal assistance, and the authorities are not obliged to provide him with free
legal aid in the context of detention proceedings (see Lebedev v. Russia,
cited above, § 84).
Having regard to what has been stated above, the
Court concludes that the applicant’s complaint about the domestic courts’
examination of the detention issue in his counsel’s absence is manifestly
ill-founded and should be dismissed pursuant to Article 35 §§ 1 and 3 (a) of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicant claimed 1,000,000 Russian roubles
(RUB) in respect of non‑pecuniary damage in connection with his unlawful
criminal prosecution and detention.
The Government argued that they did not consider
that the applicant’s rights had been violated and submitted that, should the
Court find a breach of the Convention, the finding of a violation would
constitute sufficient just satisfaction.
The Court reiterates that the amount of
compensation to be awarded for non-pecuniary damage is assessed with a view to
providing “reparation for the anxiety, inconvenience and uncertainty caused by
the violation” (see, for example, Ramadhi and Others v. Albania, no.
38222/02, § 99, 13 November 2007, and Shtukaturov v. Russia(just satisfaction), no. 44009/05, § 13, 4 March 2010).
It further notes that, in so far as the
applicant may be understood to claim compensation for non-pecuniary damage in
connection with the criminal proceedings against him, his criminal prosecution
is not the subject of the present application. Accordingly, his claims in this
regard should be dismissed.
At the same time, the Court observes that it has
found a violation of Article 5 § 1 of the Convention on account of the
unlawfulness of the applicant’s detention on 21 March 2005 and until the
issuing of a new detention order on 22 March 2005. The Court considers that the
breach of the Convention established in the case cannot be compensated solely
by the finding of a violation and accordingly awards the applicant 500 euros
(EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable
to him.
B. Costs and expenses
The applicant made no claims in respect of costs
and expenses. Accordingly, the Court considers that there is no call to award
him any sum on that account.
C. Default interest
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
1. Declares the complaint under Article 5 § 1
concerning the unlawfulness of the applicant’s detention on 21 March 2005 and
until a new detention order was issued on 22 March 2005 admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 5 § 1 (c) of the Convention;
3. Holds
(a) that the respondent State is to pay the
applicant, within three monthsfrom the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 500
(five hundred euros) in respect of non-pecuniary damage, plus any tax that may
be chargeable, to be converted into Russian Roubles at the rate applicable on
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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 September
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
