FIRST SECTION
DECISION
Application no. 3232/09
Anzhella Nazhmuttinovna KHKHUCHUYEVA
against Russia
The European Court of Human Rights (First Section), sitting on 21 April 2015 as a Committee composed of:
Khanlar Hajiyev, President,
Erik Møse,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 28 November 2008,
Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases and the applicant’s reply to the declaration,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Anzhella Nazhmuttinovna Khkhuchuyeva, is a Russian national, who was born in 1971 and lives in Ruza. She was represented before the Court by Mr S. Sagumyants, a lawyer practising in Volgograd.
2. The Russian Government were represented before the Court by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3. At 7 p.m. on 11 August 2004 the police arrested the applicant and her parents for disorderly acts. They had stayed in the custody suite of the Dzerzhinskiy district police station in Volgograd until their release at 9 a.m. on the following day.
4. By decision of 6 May 2005, the Dzerzhinskiy District Court of Volgograd established that the applicant had not committed any administrative offence and that her arrest had not been in accordance with the law.
5. The applicant sued the treasury for compensation in respect of non‑pecuniary damage that she had incurred on account of her unlawful detention, and for legal costs and expenses.
6. On 15 February 2008 the Tverskoy District Court of Moscow rejected her claim, finding that the applicant had not adduced any evidence of non‑pecuniary damage.
7. On 29 May 2008 the Moscow City Court upheld the judgment on appeal, noting that the relevant provision of the Civil Code did not provide for compensation in case of an administrative arrest.
COMPLAINT
8. The applicant complained under Article 5 § 5 of the Convention that she had been denied compensation for the unlawful administrative detention.
THE LAW
9. After the failure of attempts to reach a friendly settlement, on 12 December 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. They acknowledged that there was a violation of Article 5 § 5 of the Convention in that the applicant had not obtained compensation for her unlawful detention from 7 p.m. on 11 August 2004 until 9 a.m. on 12 August 2004. They stated their readiness to pay the applicant a sum of EUR 2,000 as just satisfaction covering any pecuniary and non-pecuniary damage, as well as costs and expenses. The sum was payable free of any applicable taxes within three months of the date of notification of the decision taken by the Court under Article 37 § 1 of the Convention. In the event of failure to pay within that period, the Government undertook to pay simple interest on the sum from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The Government requested the Court to strike it out of the list of cases in accordance with Article 37 of the Convention.
10. By letter of 6 February 2014, the applicant rejected the Government’s offer, claiming that its amount was insufficient.
11. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
12. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
13. To this end, the Court will examine carefully the declarations in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007, and Sulwińska v. Poland (dec.), no. 28953/03).
14. The Court is satisfied that the Government explicitly acknowledged the violation of the applicant’s right to compensation for unlawful detention. As to the intended redress to be provided to the applicant, the proposed sum does not appear to be unreasonable in the light of the fact that the applicant’s stay in custody only lasted fourteen hours. The Government have committed themselves to effecting the payment of that sum within three months of the Court’s decision, with default interest to be payable in case of delay of settlement.
15. The Court further notes that a situation similar to one obtaining in the instant case gave rise to a finding of a violation of Article 5 § 5 of the Convention in the case of Makhmudov v. Russia (no. 35082/04, §§ 99-105, 26 July 2007). Two years after that judgment and one year after the events in the instant case, the Russian Constitutional Court held that the relevant provisions of the Civil Code could be relied upon for granting compensation for the unlawful administrative detention (Ruling no. 9-P of 16 June 2009). In these circumstances, respect for human rights does not require the Court to continue the examination of the complaint.
16. The Court therefore considers that it is no longer justified to continue the examination of the case. The Court’s decision is however without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the applications to its list of cases, should the Government fail to comply with the terms of their unilateral declaration (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006).
17. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 5 § 5 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 21 May 2015.
André WampachKhanlar Hajiyev
Deputy RegistrarPresident
Full & Egal Universal Law Academy