THIRD SECTION

CASE OF TARKHANOV v. RUSSIA

( Application no. 40151/14 )

JUDGMENT

STRASBOURG

15 May 2018

This judgment is final but it may be subject to editorial revision.

In the case of Tarkhanov v. Russia ,

The European Court of Human Rights ( Third Section ), sitting as a Committee composed of:

Alena Poláčková , President, Dmitry Dedov , Jolien Schukking, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 17 April 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 40151/14) 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 Yevgeniy Viktorovich Tarkhanov (“the applicant”), on 13 May 2014 .

2 . The applicant was represented by Ms O. Preobrazhenskaya , a legal expert resident in Strasbourg. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin .

3 . On 3 April 2017 the complaint concerning the right to compensation for a period of unlawful detention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1980 in Abakan , the Khakassiya Republic .

5 . The applicant stood accused of theft and murder. On 22 November 2004 the Sayanogorsk Town Court in Khakassiya fixed , in the hearing held without the applicant ’ s attendance , the opening date for the trial and ordered an extension of his pre-trial detention. On 2 December 2004 the applicant was convicted and given a custodial sentence.

6 . On 22 March 2005 the Constitutional Court held, in unrelated proceedings, that the provisions of the Code of Criminal Procedure ought to be interpreted as guaranteeing the right of the defendant to take part in the hearing where the matter of detention was decided, to make submissions to the court and to produce evidence (Judgment no. 4-P, point 4 of the operative part).

7 . On 8 August 2013 the Presidium of the Supreme Court of the Khakassiya Republic quashed the Town Court ’ s decision of 22 November 2004 in the part relating to the detention matter . Referring to the case-law of the Constitutional Court, it found that the District Court had unlawfully extended the applicant ’ s detention without giving him an opportunity to take part in the hearing or to make submissions to the court .

8 . The applicant sued the Ministry of Finance, seeking compensation for the unlawful detention from 22 November to 2 December 2004. By judgment of 16 September 2013, as upheld on appeal on 27 November 2013, the Abakan Town Court rejected his claim, holding that he was not eligible for compensation in respect of pre-trial detention because he had been found guilty and given a custodial sentence.

II. RELEVANT DOMESTIC LAW

9 . The relevant provisions of the domestic law are summarised in Stadnik v. Russia (no. 41509/06, §§ 13-14, 13 June 2017) and Abashev v. Russia (no. 9096/09, §§ 20-21, 27 June 2013).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

10 . The applicant complained that he did not have an enforceable right to compensation for a period of unlawful detention in breach of Article 5 § 5 of the Convention which reads as follows:

“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. Admissibility

11 . The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

12 . The Government submitted that it was not the Court ’ s task to call into question the findings of the domestic courts. They referred to Shestakov v. Russia (no. 13308/07, § 31, 25 July 2017), claiming that no matters relating to the applicant ’ s detention had been decided in the hearing on 22 November 2004 . Accordingly, the applicant did not have a right to compensation under Article 5 § 5.

13 . The applicant replied that the Government ’ s reliance on the Shestakov judgment was mistaken. In Shestakov , the impugned decision had merely fixed the date of the preliminary hearing, whereas in the present case the District Court had decided to dispense with the preliminary hearing and to proceed with the trial. In accordance with the applicable provision of the Code of Criminal Procedure (Article 231 § 2(6)), it also decided on the applicant ’ s pre-trial detention, without however giving the applicant a possibility to attend and to state his position. That omission had been later characterised by the Presidium of the Khakassiya Supreme Court as a serious breach of legal requirements.

14 . The Court reiterates that the righ t to compensation under Article 5 § 5 of the Convention arises if a breach of one of its other four paragraphs has been established, directly or in substance, either by the Court or by the domestic courts (see, among many other authorities, Stanev v. Bulgaria [GC], no. 36760/06 , § 182, ECHR 2012; Svetoslav Dimitrov v. Bulgaria , no. 55861/00, § 76, 7 February 2008; and Çağdaş Şahin v. Turkey , no. 28137/02, § 34, 11 April 2006).

15 . In the instant case the Presidium of the Regional Court established that the Town Court ’ s decision of 22 November 2004 had been unlawful in the part relating to the detention matter in so far as it had been given in the absence of the applicant who had been denied the possibility to expose his arguments against it. This finding indicates that the domestic court acknowledged in substance that the applicant had been deprived of his liberty in a manner that was not in accordance with a procedure prescribed by law, that is, in breach of the requirements of paragraph 1 of Article 5. It follows that Article 5 § 5 is applicable in the instant case.

16 . The Court reiterates that the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty. This requirement goes hand in hand with the principle that the Convention must guarantee not rights that are theoretical or illusory but rights that are practical and effective. It follows that compensation for detention imposed in breach of the provisions of Article 5 must be not only theoretically available but also accessible in practice to the individual concerned ( see Abashev , cited above , § 39, with further references).

17 . In Abashev , the Court found that the Russian law in its present state did not provide for an effective possibility to obtain compensation for unlawful detention if the applicant was found ultimately guilty in criminal proceedings ( ibid., §§ 30 and 40-42). The present case is another example of this unacceptable situation. The applicant was denied the “right to rehabilitation” on the ground that it only accrued to those who have been cleared of the charges.

18 . It follows that the manner in which the Russian law is formulated and applied precluded the applicant from obtaining compensation for the detention that was imposed in breach of Article 5 § 1 of the Convention. Having rejected the applicant ’ s compensation claim on formal grounds, the Russian courts did not interpret or apply the domestic law in the spirit of Article 5 of the Convention (see Abashev , cited above, § 42, and Houtman and Meeus v. Belgium , no. 22945/07, §§ 45-47, 17 March 2009).

19 . The applicant did not therefore have an enforceable right to compensation as is required under Article 5 § 5 of the Convention. There has accordingly been a violation of this provision.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

20 . 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.”

21 . The applicant claimed 100,000 euros (EUR) in respect of non ‑ pecuniary damage and EUR 2,850 for the work of his representative .

22 . The Government submitted that Article 41 was to be applied in accordance with the established case-law.

23 . The Court awards the applicant EUR 5,000 in respect of non ‑ pecuniary damage , plus any tax that may be chargeable . It rejects the claim for legal costs because no supporting documents had been produced.

24 . 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 application admissible;

2 . Holds that there has been a violation of Article 5 § 5 of the Convention;

3 . Holds

(a) that the respondent State is to pay the applicant, within three months , EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage , to be converted into the currency of the respondent State at the rate applicable at 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 15 May 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Alena Poláčková Deputy Registrar President