THIRD SECTION
DECISION
Application no. 19488/16
Alisher Esenbayevich KHASANBAYEV
against Russia
The European Court of Human Rights (Third Section), sitting on 21 May 2019 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 11 April 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Alisher Esenbayevich Khasanbayev, is a Kyrgyz national, who was born in 1983 and lives in Moscow. He was represented before the Court by Ms D. Trenina and Ms E. Davidyan, lawyers practising in Moscow.
2. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 26 February 2015 the applicant was arrested in Moscow under an international search warrant and detained by an order of the Russian court. Subsequently, his detention was extended several times.
5. On 16 December 2016 his extradition to Kyrgyzstan was authorised by the Prosecutor General’s Office. The applicant challenged the decision in courts.
6. On 11 February 2016 the Moscow City Court issued an order repeatedly extending the period of the applicant’s detention pending extradition.
7. On the same day the Moscow City Court in separate proceedings annulled the above authorisation of extradition, but did not order the applicant’s release.
8. The applicant challenged both decisions seeking speedy release.
9. On 5 April 2016 the Moscow City Court, sitting on appeal, upheld as lawful the above order extending the period of the applicant’s detention pending extradition.
10. On 14 April 2016 the Supreme Court of the Russian Federation upheld the above judgment annulling the authorisation of extradition. It further acknowledged that the applicant’s detention has been unlawful since 11 February 2016, because under the national legislation in force the City Court must have released the applicant following annulment of the extradition authorisation.
11. On 15 April 2016 the applicant was released.
12. In 2018 the applicant initiated civil proceedings seeking compensation for his unlawful detention; he claimed approximately 8,000 euros (EUR) in non-pecuniary damage for 64 days of detention after 11 February 2016.
13. On 8 February 2018 the Simonovskiy District Court of Moscow acknowledged unlawfulness of the above period of detention and awarded the applicant an equivalent of EUR 570 in damages.
14. On 6 June 2018 the Moscow City Court upheld the lower court’s judgment. It appears from the applicant’s submissions that on 4 December 2018 he lodged a cassation appeal with the Presidium of the Moscow City Court, however, the Court has not been informed about the outcome of these proceedings.
COMPLAINTS
15. The applicant complained under Article 5 of the Convention about unlawfulness of his detention for 64 days following 11 February 2016 and inadequacy of the compensation awarded by the Russian courts.
THE LAW
16. In their observations to the Court the parties disagreed whether the applicant had lost his victim status following the judgment of 8 February 2018 by the Simonovskiy District Court of Moscow.
17. The Court notes at the outset that the applicant’s detention, recognized by the domestic courts as unlawful, lasted for 64 days. It further notes that despite the above “unlawfulness” his detention had not been tainted by grave irregularities, comparable, for example, to a detention order issued in excess of jurisdiction (see Marturana v. Italy, no. 63154/00, § 78, 4 March 2008) or in the absence of any grounds for detention indicated by the national courts (see Stašaitis v. Lithuania, no. 47679/99, § 67, 21 March 2002). Without casting doubt on the seriousness of the issue, it must be highlighted that the applicant stayed in detention under an order of a court and that the period in question was admittedly short.
18. The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention. A decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. The question whether an applicant received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. It is the Court’s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Cocchiarella v. Italy, no. 64886/01, §§ 70-72, 10 November 2004 with further references).
19. The Court has held on a number of occasions that, in accordance with the principle of subsidiarity, a wider margin of appreciation should be left to the domestic authorities in assessing the amount of compensation to be paid. Such an assessment should be carried out in a manner consistent with their own legal system and traditions and take into account the standard of living in the country concerned, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases (see Domján v. Hungary (dec.), no. 5433/17, § 27, 14 November 2017 with further references). Notably, in the context prison overcrowding it held that compensation awarded by a national court and representing approximately 30% of the award made by the Court did not appear to be unreasonable or disproportionate (see Bizjak v. Slovenia (dec.), no. 25516/12, § 39, 8 July 2014; Stella and Others v. Italy (dec.), nos. 49169/09 and 10 others, §§ 19 and 62, 16 September 2014; and Domján v. Hungary (dec.), cited above, § 28).
20. The Court further notes that in certain cases under Article 5 § 3 of the Convention where the period of the applicants’ pre-trial detention had been comparatively short, it made awards proportionate to the length of such detention, for example, EUR 500 for slightly less than three months of detention or EUR 1,300 for approximately fourteen months (see Ananchev and Others v. Russia, nos. 7026/10 and 25 others, 21 February 2019, and Utimishev and Others v. Russia, nos. 15783/10 and 8 others, 26 July 2018). Without losing sight of the difference between the provisions of Article 5 § 1 (f) and 5 § 3 of the Convention, the Court notes that the above examples provide reasonable guidance on the amount of an appropriate award in the present case.
21. Turning to the present case the Court notes that on 14 April 2016 and 8 February 2018 the national courts acknowledged the breach of the applicant’s rights by the unlawful detention of two months following 11 February 2016. It further notes that on 8 February 2018 the Simonovskiy District Court of Moscow awarded the applicant the equivalent of EUR 570 in damages for the above period of detention.
22. Having regard to the relatively short period of detention, the acknowledgment of the violation by the national courts and the nature of that violation, as well as the amount of the award, which does not appear unreasonable in the circumstances of the present case and in the light of the case-law on related matters, the Court is satisfied that the applicant can no longer claim to be a victim within the meaning of Article 34 of the Convention. Accordingly, the application must be dismissed as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 13 June 2019.
Fatoş AracıAlena Poláčková
Deputy RegistrarPresident
Full & Egal Universal Law Academy