THIRD SECTION

DECISION

Application no. 58272/09 Eduard Melsovich KHAYRULLIN against Russia

The European Court of Human Rights (Third Section), sitting on 2 July 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 22 August 2009,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Eduard Melsovich Khayrullin, is a Russian national, who was born in 1966 and lives in Bugulma, the Tatarstan Republic, Russia.

The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

According to the applicant, on 27 October 2006 he felt pains in his heart and went for a walk. According to the domestic authorities, the applicant was drunk and was thus arrested (see below).

The applicant was taken to a sobering-up centre and then to a police station cell. Allegedly, he was not provided with any medical assistance.

On 28 October 2006 a justice of the peace convicted the applicant of minor hooliganism under Article 20.1 of the Code of Administrative Offences (“the CAO”) and sentenced him to three days of administrative detention. According to the judge, the applicant had used foul language in public. The reasoning of the judgment consisted of a statement that the applicant had pleaded guilty.

The applicant was taken back to the cell to serve his sentence and declared a hunger strike. He then fainted. Paramedics were called for and the applicant was taken to the cardiology unit of the local hospital. He was then taken back to the cell. He felt sick again but, allegedly, no medical assistance was provided to him.

The applicant was released on 30 October 2006.

The applicant did not lodge an ordinary appeal and the judgment became final.

The deputy prosecutor of the Tatarstan Republic sought supervisory review of the judgment. On 23 March 2007 the Supreme Court of the Tatarstan Republic quashed the judgment and discontinued the case for lack of a corpus delicti . The court considered that the trial judgment had been based only on the record of the administrative offence that had been compiled by the police; the place of the offence indicated in the record had been different from the one indicated in the judgment; and the applicant had pleaded not guilty.

In the meantime, the applicant also sued the State, claiming compensation of 120,000 Russian roubles (RUB) in relation to the circumstances of the case (the arrest, three ‑ day detention, and a lack of adequate and timely medical assistance). By a judgment of 30 May 2007 the Bugulma Town Court of the Tatarstan Republic awarded RUB 3,000 [1] to the applicant “on account of the discontinuation of the case”. On 16 July 2007 the Supreme Court of the Tatarstan Republic upheld the award. It is unclear whether the applicant has not received the award to date.

Also in the meantime, the applicant sought the institution of criminal proceedings against the arresting officer. On 24 July 2008 it was refused. On 22 August 2008 a court discontinued his judicial-review challenge against this refusal because meanwhile it had been set aside by the supervising prosecutor. Then, on several occasions, investigators issued refusals to prosecute, most recently on 4 May and 4 December 2009. On 29 December 2009 the Supreme Court of the Tatarstan Republic took a final decision to uphold the refusal to prosecute dated 4 May 2009.

It also appears that in 2010 the applicant lodged a claim for compensation for the continued non-enforcement of the judgment of 30 May 2007. For reasons unknown, that claim was not processed.

COMPLAINTS

The applicant complained under Article 5 § 1 (a) and (c) and § 5 of the Convention that both his arrest and his detention following his conviction had been unlawful and arbitrary; that both the criminal inquiry and his civil claim, resulting in a derisory compensation, failed to provide him with an effective remedy for his above complaints under Article 5 of the Convention.

The applicant also complained under Article 6 of the Convention that his trial and his conviction on 28 October 2006 had been unfair and arbitrary.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

The applicant complained under Article 5 § 1 (a) and (c) and § 5 of the Convention that both his arrest and his detention following his conviction had been unlawful and arbitrary; that both the criminal inquiry and his civil claim, resulting in a derisory compensation, failed to provide him with an effective remedy for his above complaints under Article 5 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:

(a) the lawful detention of a person after conviction by a competent court;

...

(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; ...

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A. The parties ’ submissions

The Government argued that the criminal-complaint procedure should not be taken into account for the purpose of the six-month rule. In his application to the Court applicant had mentioned the alleged inefficiency of the pre-investigation inquiry that was being carried out in reply to his complaint over the course of three years between 2006 and 2008. He should have realised much sooner than in August 2009, when he lodged the present application, that he had had no effective remedy. While it was acceptable that he had sought judicial review of the refusal to prosecute in July 2008, he should have lodged an application before the Court within six months (no later than on 22 February 2009) after the first-instance decision in that case. He had had no need to proceed with a further appeal since the judicial proceedings became devoid of substance, the impugned refusal to prosecute being already revoked by the non-judicial authority. As a result of the applicant ’ s delay in applying to the Court, certain official documents, including logbooks on arrests and the administrative-offence case file, had been destroyed in the meantime due to the expiry of the retention period. Consequently, the Government no longer had a reasonable opportunity to put forward their case before the Court.

The applicant maintained his complaints.

B. The Court ’ s assessment

1. Issues relating to the administrative arrest

As to the issue under Article 5 § 1 (c) of the Convention in relation to the administrative arrest, it does not appear that the applicant ’ s compensation claim was related to this period of the deprivation of his liberty prior to the trial. Thus, there is no reason to take the civil proceedings into account. In any event, regard being had to the scope of the applicant ’ s complaint, the Court has insufficient material which would cast a doubt that the applicant was arrested because of the reasonable suspicion of him committing an administrative offence. The applicant has raised no other admissible issues pertaining to the legality of his arrest. Accordingly, the complaint under Article 5 § 1 (c) of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

As to the related issue under Article 5 § 5, the compensation matter for the pre-trial arrest was not part of the civil case. In the Court ’ s view, the relevance of the pre-investigation criminal inquiry was at best tenuous for the purpose of Article 5 § 5. Thus, the six-month period for that purpose should be counted from the date of the trial judgment (28 October 2006) when the sentence of administrative detention replaced the pre-trial arrest measure. Accordingly, this complaint has been introduced out of time on 22 August 2009 and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. Issues relating to the sentence of administrative detention

The Court considers that the matters relating to the sentence of administrative detention was subject to the examination in the review proceedings in March 2007 after the trial judgment, that is more than six months prior to lodging the present application before the Court on 22 August 2009. In view of the findings already made by the review court, the Court is not convinced that the criminal complaint procedure should be taken into account. Furthermore, the Court does not need to determine whether the compensation case might be relevant. It notes that the final judgment, which was partly in favour of the applicant, had been taken on 16 July 2007, more than six months prior to the date when the application was lodged before it. The fact that the award remained unpaid, including in August 2009 when the applicant lodged the present application before the Court, does not plead in favour of declaring the complaint admissible. Thus, the Court concludes that the applicant ’ s complaint under Article 5 § 1 (a) is belated.

As regards the related issue under Article 5 § 5 of the Convention, the Court has taken note of the fact that the compensation award, which was meant to afford redress for the sentence that had been set aside, remained unenforced after July 2007. However, in so far as the complaint concerns the allegedly derisory amount of the award, it should have been lodged within six-month after the end of the civil proceedings in July 2007. Thus, the Court concludes that the applicant ’ s complaint under Article 5 § 5 is belated too.

Accordingly, these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

The applicant complained under Article 6 of the Convention that his trial and his conviction on 28 October 2006 had been unfair and arbitrary. Article 6 of the Convention reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...”

The Court observes at the outset that the applicant has not lodged a complaint before it following his conviction or execution of the penalty of detention nor within six months after the favourable supervisory-review proceedings, which had been instituted at the initiate of a prosecutor. However, he did so later on, after the civil proceedings for compensation. In this context, the Court must examine whether the applicant has complied with the six-month rule under Article 35 § 1 of the Convention.

With the benefit of the supervisory-review ruling and wishing a monetary redress in addition to the reviewing court ’ s acknowledgment of the unfair proceedings, admittedly, it was reasonable for the applicant to lodge a civil case. Indeed, the applicant was successful in it, albeit remained unhappy about the amount of the compensation awarded to him, and thus lodged an application before this Court.

Arguably, the compensation proceedings were pertinent for the applicant ’ s complaints under Article 6 of the Convention, as regards his victim status since the discontinuation of the case alone could not amount to adequate redress under Article 6 of the Convention where the applicant had already served the sentence. Thus, w hile the impugned conviction had been quashed, the applicant retained the victim status under Article 6 of the Convention because he had already served the sentence but received no proper redress. So, the mere quashing did not suffice in the circumstances (see Menesheva v. Russia (dec.), no. 59261/00, 15 January 2004, and, mutatis mutandis , Hammerton v. the United Kingdom , no. 6287/10 , §§ 135 ‑ 37, 17 March 2016, and compare with Yefimenko v. Russia , no. 152/04 , §§ 12, 24, 28 and 121-29, 12 February 2013, in which the re ‑ opening and the retrial in compliance with the Article 6 standards still resulted in a new conviction and a term of imprisonment, which, while being shorter than the initial conviction, remained longer than the period actually served on the basis of the initial conviction).

While the non-payment or a considerable delay in the payment of the compensation award was a relevant consideration, the Court considers that in so far as the six-month rule under Article 35 § 1 of the Convention is concerned, t he applicant should have complained before it under Article 6 of the Convention about the shortcomings of the trial against him no later than within six months after the civil court decision dated 16 July 2007. Realising on that date he had not obtained an adequate redress for his complaint, he should have envisaged a complaint before the Court within six months that followed.

Accordingly, this complaint has been introduced out of time too and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the complaints under Articles 5 and 6 of the Convention inadmissible.

Done in English and notified in writing on 25 July 2019 .

Fatoş Aracı Alena Poláčková Deputy Registrar President

[1] . 90 euros on the date when the payment was due