PARTLY DISSENTING OPINION OF JUDGE DEDOV

My opinion concerns the violation of Article 5 § 1 of the Convention (see paragraphs 88–111 of the judgment). I cannot share the Court’s conclusion that the applicant was afforded no adequate acknowledgement and redress.

The Court has made reference to its case-law, including Menesheva v. Russia (§§ 91-93) and Sakhnovskiy v. Russia (§ 67). In the case of Sakhnovskiy , the Court held that “it is a well-established principle of the Court’s case-law that an applicant may lose his victim status if two conditions are met: first, the authorities must have acknowledged, either expressly or in substance, the breach of the Convention and, second, they must have afforded redress for it”.

It seems that in the present case the Court goes even further, stating in paragraph 93 of the judgment that “a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a victim”. As this position requires interpretation in accordance with the Court’s established case-law (if it is not merely to be a routine execution of the individual’s rights), it means, as I understand it, that such a measure should be based on recognition of a particular violation and that it should eliminate adverse consequences for the applicant.

It follows that the measures taken by the authorities in the applicant’s favour must be examined.

In September 2009 the Russian Supreme Court set aside the trial court’s judgment of 24 April 2003 and recognised that there had been a violation of the applicant’s right to trial by a court properly “established by law”. Under the commonly recognised rules of court procedure, such an error of law (a most serious procedural omission) itself constitutes a basis for annulment of the lower court’s decision, without any additional conditions. The Court has considered such a measure as appropriate in Ponushkov v. Russia (no. 30209/04, 6 November 2008, §§ 70-71) and in Ryabov v. Russia (no. 3896/04, 31 January 2008, § 51), and refers to these examples in Sakhnovskiy .

As regards the present case, I conclude from the text of the judgment that if there is “no prompt and adequate redress in ordinary appeal proceedings” (see paragraph 109), then a recognition of the violation by the Supreme Court cannot be regarded as adequate redress. Such an interpretation is not convincing, unless one can (again) presume that over six years the applicant raised the issue before the higher domestic courts but the authorities were reluctant to respond to his request.

Only these circumstances may constitute “a gross and obvious irregularity” (see paragraph 110) if the Court wishes to find something more serious than a violation of Article 5 or Article 6 of the Convention. But the issue concerns a violation of Article 5 § 1 and concerns the unlawful detention of the applicant.

Moreover, evaluating the circumstances of the present case as a whole, I would note that the national court (in the retrial of the case) came to the same conclusions and upheld the initial charges against the applicant, who did not raise any complaints before the Court about the evidence produced against him, and the Court considered the alleged violation of Article 6 as manifestly ill-founded. Thus, I have no reason to conclude that throughout those six years the applicant suffered because of his innocence. I therefore have doubts about the applicant’s status as a victim.

I also believe that the applicant has received adequate redress, given that - within the re-examination of his case - the national court reduced the term of his sentence by four years, taking into account that he had served a long prison sentence “as [to do] otherwise would be unfair” to the applicant.

I started my opinion by citing the Court’s case-law, according to which the authorities must have acknowledged, either expressly or in substance, the breach of the Convention. Although the decision was poorly reasoned, I believe that the national court did acknowledge, not expressly but in substance, that the above omission was not fair with respect to the applicant. It was an act of humanity by a Russian judge in relation to a criminal convicted of murder, kidnapping and extortion. I am convinced that such an act should not be ignored by the Court.