Communicated on 30 March 2015
FIRST SECTION
Application no. 22118/10
Andrey Aleksandrovich DROBODKO against Russia
and 9 other applications
(see list appended)
STATEMENT OF FACTS
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The case of Mr Drobodko (application no. 22118/10)
The applicant, Mr Andrey Aleksandrovich Drobodko, is a Russian national who was born in 1978 and lives in Nizhniy Novgorod.
On 19 December 2006 the Sovetskiy District Court of Nizhniy Novgorod convicted the applicant of trespassing and sentenced him to one year’s detention in a high-security facility. On 27 February 2007 the Nizhniy Novgorod Regional Court upheld the conviction on appeal.
On 12 July 2007 the Presidium of the Regional Court quashed the conviction, finding that the offence had been committed on 12 February 2005 and by the time of the appeal hearing the two-year prescription period had already expired.
The applicant was released on 19 July 2007.
In 2009, he filed a civil claim for compensation in respect of pecuniary and non-pecuniary damage.
By judgment of 27 May 2009, the Nizhegorodskiy District Court of Nizhniy Novgorod granted him claim in part awarded him 15,000 Russian roubles (RUB, approximately 345 euros at the then effective exchange rate) in respect of the detention period from 27 February to 19 July 2007. The court found that the applicant had been not acquitted and therefore had no “right to the rehabilitation”. However, he ought to be presumed to have suffered non-pecuniary damage on account of a restriction of his fundamental rights because of his placement in custody.
On 29 September 2009 the Nizhniy Novgorod Regional Court upheld the judgment on appeal.
The case of Mr Lagunov (application no. 40025/10)
The applicant, Mr Pavel Ivanovich Lagunov, is a Russian national who was born in 1951 and lives in Izhevsk.
On 27 August 2008 the police apprehended the applicant in the street on suspicion that he was drunk. He was taken to the police station where he was held for more than two hours. The police charged the applicant with public drunkenness and told him to pay a fine.
Further to the applicant’s complaint, on 8 December 2008 the Pervomayskiy District Court of Izhevsk quashed the police decision, finding that the charge had not been properly substantiated with relevant evidence.
The applicant brought a claim for compensation for pecuniary and non-pecuniary damage in connection with his arrest and detention on 27 August 2008.
By judgment of 16 November 2009, the Pervomayskiy District Court dismissed his claim. Noting that the claim arising out of administrative detention fell outside the exhaustively listed instances of no-fault liability under Article 1100 of the Civil Code, the court held that the lawful actions of the police officers did not give rise to tort liability. It acknowledged that the applicant must have suffered frustration and anxiety because of his detention but determined that his suffering had been “of no legal consequence”.
On 3 March 2010 the Supreme Court of the Udmurtiya Republic upheld the District Court’s decision on appeal.
The case of Mr Fedotov (application no. 13080/12)
The applicant, Mr Aleksei Mikhaylovich Fedotov, is a Russian national who was born in 1961 and lives in Ufa.
On 1 February 2001 the Kalininskiy District Court of Ufa convicted the applicant of murder and sentenced him to eight years’ imprisonment. The sentence was to run from the date of his arrest on 18 October 2000.
By decision of 24 September 2008, the Presidium of the Supreme Court of the Bashkortostan Republic reduced the duration of his sentence by three months. The Presidium’s decision was sent to the penitentiary facility on 3 October 2008 and received at the facility on 14 October 2008. On the following day the applicant was released.
The applicant brought a claim for compensation for non-pecuniary damage in connection with his belated release from custody.
On 2 June 2011 the Leninskiy District Court of Ufa granted the applicant’s claim in part and awarded him RUB 50,000 (approximately 1,240 euros at the then effective exchange rate) in respect of non-pecuniary damage. However, on 23 August 2011 the Supreme Court of the Bashkortostan Republic found that such a “significant amount” was excessive and unreasonable and reduced the award to RUB 10,000 (approximately 250 euros).
On 6 March 2012 the Supreme Court refused the applicant leave to appeal to the cassation instance.
The case of Mr Rakhmatullin (application no. 20286/12)
The applicant, Mr Sayfitdin Gilmitdinovich Rakhmatullin, is a Russian national who was born in 1969 and lives in the Kurgan Region. He is represented before the Court by Mr S. Salasyuk, a lawyer practising in Kurgan.
On 28 July 2009 the applicant was arrested; two days later the Safakulevskiy District Court of the Kurgan Region remanded him in custody.
On 13 August 2009 the Kurgan Regional Court quashed the detention order on procedural grounds and remitted the matter for a fresh examination to a different court. On the following day the applicant was released.
By decision of 18 September 2009, the Almetyevskiy District Court of the Kurgan Region refused the prosecutor’s application for a detention order.
The applicant brought a claim for compensation for non-pecuniary damage in connection with his unlawful placement in custody.
By judgment of 22 August 2011, the Safakulevskiy District Court rejected his claim, finding that, since his acquittal had been later quashed, there were no legal provisions permitting the court to award him
non-pecuniary damages. On 20 September 2011 the Kurgan Regional Court upheld those findings on appeal.
The case of Mr Kuchevskiy (application no. 47020/12)
The applicant, Mr Aleksandr Alekseyevich Kuchevskiy, is a Russian national who was born in 1976 and lives in the Ivanovo Region.
On 3 June 2008 the police detained the applicant on suspicion of theft. His arrest was not formalised and he remained in the custody suite of the police station until 5 June 2008.
On 2 October 2008 the investigation established that no theft had been committed and discontinued the case against the applicant.
The applicant brought a claim for compensation for non-pecuniary damage in connection with his stay in custody.
By judgment of 31 October 2011, the Ivanovskiy District Court of the Ivanovo Region granted his claim in part and awarded him RUB 3,000 (approximately 70 euros at the then effective exchange rate).
On 16 January 2012 the Ivanovo Regional Court upheld that decision on appeal.
The case of Mr Fedotov (application no. 57780/12)
The applicant, Mr Sergey Vladimirovich Fedotov, is a Russian national who was born in 1983 and lives in the Khakassiya Republic.
The applicant was the defendant in four concurrent sets of criminal proceedings; in one of them the investigator remanded him in custody. On 10 January 2001 the Tashtypskiy District Court convicted him as charged but applied the act of general amnesty and ordered his immediate release. As it happened, the applicant was only released on 2 April 2001.
The applicant brought a claim for compensation for non-pecuniary damage in connection with his late release and inhuman conditions of detention.
By judgment of 6 April 2012, the Abakan Town Court of the Khakassiya Republic acknowledged that his detention from 10 January to 2 April 2001 had had no legal basis and awarded him RUB 10,000 (approximately 260 euros at the then effective exchange rate). In determining the amount of the award, the Town Court had regard to “the claimant’s personality, his status of a repeat offender and a short duration of unlawful detention”.
On 14 June 2012 the Supreme Court of the Khakassiya Republic upheld the judgment on appeal; a further leave to appeal was refused on 13 August 2012.
The case of Mr Korobeynikov (application no. 15448/13)
The applicant, Mr Aleksandr Yuryevich Korobeynikov, is a Russian national who was born in 1975 and lives in the Udmurt Republic.
On 19 April 1999 the applicant was convicted and sentenced to six and a half years’ imprisonment. On 12 April 2005 the Zavyalovskiy District Court of the Udmurt Region varied his conviction in the light of the amendments to the Criminal Code and reduced the duration of the sentence to five years. By that time the applicant had spent in custody six years and four months. He was actually released on 27 May 2005, that is, one month and fifteen days after the decision.
The applicant brought a claim against the Ministry of Finance for compensation in respect of non-pecuniary damage. He submitted that the judge who issued the decision of 12 April 2005 but failed to send it promptly to the correctional facility was responsible for his late release.
On 29 June 2012 the Pervomayskiy District Court of Izhevsk declared his claim inadmissible, noting that the Russian law does not define the modalities of judicial liability for torts.
On 22 August 2012 the Supreme Court of the Udmurt Republic upheld the District Court’s decision, endorsing its reasoning.
The case of Mr Kvernadze (application no. 53229/13)
The applicant, Mr Sergo Dzhangulievich Kvernadze, is a Russian national who was born in 1968 and lives in Kaliningrad.
On 23 April 2010 the police arrested the applicant in connection with a drug-related offence and a court remanded him in custody. However, the charges had not been formally laid against him until 7 June 2010 when his case was joined with another one.
By decision of 15 July 2010, the Leningradskiy District Court of Kaliningrad acknowledged that the applicant’s detention without laying the charges had been contrary to the applicable legal requirements (Article 100 of the Code of Criminal Procedure) and therefore unlawful.
The applicant brought a claim against the Ministry of Finance for compensation in respect of non-pecuniary damage for his unlawful detention.
By judgment of 13 March 2013, the Tsentralnyi District Court of Kaliningrad granted his claim in part and awarded him RUB 10,000 (approximately 250 euros at the then effective exchange rate). In determining the amount of the award, the District Court had regard to the following elements: (i) the duration of the unlawful period – 78 days; (ii) the crediting of that period towards the sentence; (iii) the “formal” nature of the violation resulting from a breach of the established procedure for laying charges; (iv) the fact that the applicant was subsequently remanded in custody and found guilty of two offences.
On 22 May 2013 the Kaliningrad Regional Court upheld the judgment on appeal.
The case of Mr Rekhtin (application no. 61151/13)
The applicant, Mr Nikolay Nikolaevich Rekhtin, is a Russian national who was born in 1984 and lives in the Altay Region.
On 14 February 2011 the police arrested the applicant. He spent the night at the Zapadnyi police station in Rubtsovsk. A record of arrest was drawn up at 6 p.m. on the following day.
The applicant brought a claim for compensation for non-pecuniary damage in connection with his unrecorded overnight detention and inhuman conditions in the custody suite of the police station.
On 22 April 2013 the Rubtsovsk District Court of the Altay Region granted the applicant’s claim in the part concerning the conditions of his detention. As to the unlawful character of his detention, the court acknowledged that it had not been properly recorded until 15 February 2011 but found that the applicant had no right to compensation for that failing because he had been eventually convicted and because his stay in police custody had been credited towards his prison sentence.
On 23 October 2013 the Altay Regional Court upheld the District Court’s judgment on appeal.
The case of Mr Mushchinskiy (application no. 25799/14)
The applicant, Mr Aleksandr Aleksandrovich Mushchinskiy, is a Russian national who was born in 1972 and lives in the Kirov Region.
In several sets of criminal proceedings, the applicant was given the cumulative sentence of three years’ imprisonment. On 17 June 2011 the Neftekumskiy District Court of the Stavropol Region reduced the duration of the sentence by three months on account of a recharacterisation of the offences.
On 21 June 2011 the District Court sent its decision for information to the correctional facility where the applicant was serving his sentence. On 24 June 2011 the reduced sentence ended. On 28 June 2011 the decision became final but a copy of the final decision was forwarded to the facility only on 20 July 2011 where it was received on the same day. On the following day the applicant was released.
The applicant brought a claim for compensation for non-pecuniary damage in connection with his late release.
By judgment of 2 August 2013, the Neftekumskiy District Court refused his claim, finding that he had been released as soon as the facility had received the decision and therefore no fault on the part of the facility officers could be established. On 12 November 2013 the Stavropol Regional Court endorsed these findings on appeal.
COMPLAINT
The applicants complain under Article 5 § 5 of the Convention about the refusal of compensation for a period of unlawful detention or about its negligible amount.
QUESTION TO THE PARTIES
Did the applicant have an enforceable right to compensation for his unlawful detention as required by Article 5 § 5 of the Convention and was that right “practical and effective” (see Cumber v. the United Kindgom, no. 28779/95, Commission decision of 27 November 1996)?
Appendix
List of applications
No.
Application no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
22118/10
29/03/2010
Andrey Aleksandrovich DROBODKO
02/08/1978
Nizhniy Novgorod
40025/10
02/07/2010
Pavel Ivanovich LAGUNOV
11/09/1951
Izhevsk
13080/12
09/02/2012
Aleksandr Mikhaylovich FEDOTOV
13/07/1961
Ufa
20286/12
20/03/2012
Sayfitdin Gilmitdinovich RAKHMATULLIN
27/03/1969
Kurgan
Sergey Vladimirovich SALASYUK
47020/12
06/07/2012
Aleksandr Alekseyevich KUCHEVSKIY
05/08/1976
Kokhma
57780/12
14/08/2012
Sergey Vladimirovich FEDOTOV
26/04/1983
Abakan
15448/13
26/01/2013
Aleksandr Yuryevich KOROBEYNIKOV
04/02/1975
Yagul
53229/13
28/07/2013
Sergo Dzhanguliyevich KVERNADZE
09/06/1968
Kaliningrad
61151/13
10/06/2013
Nikolay Nikolayevich REKHTIN
25/03/1984
Novosibirsk
25799/14
24/04/2014
Aleksandr Aleksandrovich MUSHCHINSKIY
04/08/1972
Kirovo-Chepetsk
Full & Egal Universal Law Academy