PARTLY DISSENTING OPINION OF JUDGE DE GAETANO

I regret I cannot share the view of the majority as regards operative point number eight of the judgment. In my view, in this case there was a violation of Article 8 in respect of applicant Mityanin .

Given that the first applicant was accused of being a member of a “criminal gang” (which was, in itself, a criminal offence), there was a thin line between stating that someone was merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual had committed a reprehensible act punishable by criminal law. In this context the least one would have expected of the journalist was to display a degree of caution – in particular with regard to the manner of presenting the information obtained from the official source – when clarifying the state of suspicion against the applicant in relation to his alleged membership of a criminal gang and in relation to the criminal activities attributed to the gang members in the article. For the ordinary reader it would have been extremely difficult to grasp the subtleties of the legal context. While the article imparted factual information about the investigation that was largely true, the way in which it was presented wrongly conveyed the impression that there was a factual basis justifying the view that the applicant had in fact engaged in the imputed criminal conduct.

Moreover, the domestic courts justified the publication of the applicant ’ s photograph by citing the exception to the statutory rule of consent, ruling that it was in the public interest to disseminate the information. The applicant – who, it must be reiterated, was neither a public figure nor someone otherwise in the public eye – was, at the material time, in custody; he was therefore not a fugitive from justice. It was not argued at the domestic level that, for instance, the showing of the photograph could have been necessary for enlisting public support in determining his whereabouts. It was, it is true, mentioned that publishing the article and the photograph might serve to help in the gathering of further information, possibly by prompting eyewitnesses to come forward. This appears to be an entirely spurious argument, since the article itself did not contain any appeal for witnesses.

In sum, and in my view, the national courts in this case did not perform the necessary balancing exercise between the right to freedom of expression on the one hand and the right to respect for one ’ s “private life” on the other. They failed to give relevant and sufficient (and therefore convincing) reasons, did not apply standards which were in conformity with the principles embodied in Article 8 and 10 of the Convention, and they did not base their decisions on an acceptable assessment of the crucially relevant facts. I therefore conclude that there was a violation of Article 8 with regard to the first applicant.

For the avoidance of doubt, I voted with the majority on operative point number nine (just satisfaction). Even if the majority had found a violation of Article 8, the amount awarded by way of non-pecuniary damage would, in my view, have sufficed for all the violations in respect of the first applicant.

PARTLY DISSENTING OPINION OF JUDGE DEDOV

To my regret, I cannot agree with the majority that the applications under Article 5 satisfied the requirements of the six-month limit. Indeed, this is a borderline case, and it is worthwhile dissenting in order to set out another possible approach.

No time-limit and uncertainty

The applicants lodged a civil claim for non-pecuniary damages in respect of their unlawful pre-trial detention, which had lasted for almost six years after their conviction. The absence of any time-limit under domestic law (Articles 2018 and 1100 of the Russian Civil Code) creates some degree of uncertainty, which is contrary to the purpose of the six-month rule, which is to ensure that cases are examined within a reasonable time. It is vital to prevent the authorities from being in a situation of uncertainty for lengthy periods of time (see Mocanu and Others v. Romania [GC], § 258, and Lopes de Sousa Fernandes v. Portugal [GC], § 129).

The Court has already dealt with just such a problem in the Russian context in the leading case of Norkin v. Russia ( dec. ), no. 21056/11, 5 February 2013), where an application lodged belatedly after civil proceedings was considered inadmissible. This approach was then confirmed in various committee decisions (see Zhirko v. Russia , 8696/12, 17 September 2013; Andrianov v. Russia , 14293/10, 17 September 2013; Gavrilov v. Russia , 9789/12, 17 September 2013), which, in my view, means that it is part of the Court ’ s well-established case-law.

Later, in the case of Shishkov v. Russia (no. 26746/05, 20 February, 2014) the Court proposed a more nuanced approach depending on the access to legal advice and the effectiveness of the civil action in court:

“84. Having regard to the Court ’ s conclusions about domestic remedies in Ananyev and Others (cited above, §§ 100-119), under the current approach recourse to civil proceedings would not, normally, be taken into consideration for the purpose of applying the six-month rule. For instance, in a recent case of Norkin v. Russia (( dec. ), no. 21056/11, 5 February 2013) the applicant obtained a final judgment in 2010 awarding him derisory compensation in respect of unacceptable conditions of detention he had endured in a remand centre in 2007. The Court considered that by that time, its case-law on the absence of an effective remedy for complaints concerning inadequate conditions of detention had been sufficiently established (see Mamedova v. Russia , no. 7064/05, § 55, 1 June 2006; Andrey Frolov v. Russia , no. 205/02, § 39, 29 March 2007, and Benediktov v. Russia , no. 106/02, § 20, 10 May 2007). The Court concluded that the applicant ’ s complaint regarding the inadequate conditions of his detention should have been lodged within six months of the day following his transfer out of the remand centre. The applicant should have been aware of the ineffectiveness of the judicial avenue he had made use of, long before he lodged his application with the Court.

85. However, in Norkin v. Russia the Court also mentioned that in older cases concerning conditions of detention and domestic proceedings before 2007, as in the present case, a different approach could be warranted. Indeed, at the time there were only two examples of case-law in which the Court rejected as unsubstantiated the Russian Government ’ s objection as to the non-exhaustion of domestic remedies in relation to conditions of detention in remand centres (see Kalashnikov v. Russia ( dec. ), no. 47095/99, 18 September 2001, and Moiseyev v. Russia ( dec. ), no. 62936/00, 9 December 2004). In several cases lodged in 2003, the Court calculated the six-month period as starting to run from the date of the final judgment in a civil action for compensation in the cases in which it found no indication that the applicant, having no access to legal advice, was aware, or should have become aware, of the futility of that action (see, among others, Skorobogatykh v. Russia , no. 4871/03, §§ 32-34, 22 December 2009; Roman Karasev v. Russia , no. 30251/03, §§ 41-42, 25 November 2010, and Gladkiy v. Russia , no. 3242/03, § 63, 21 December 2010).

86. In view of the above, in the particular circumstances of the present case, the Court accepts that the applicant, who did not benefit from legal assistance, could have reasonably considered in 2005 to 2006 that a civil action for damages in relation to conditions of detention in a temporary detention centre had some prospect of success. Thus, the Court does not find it appropriate to dismiss the present complaint as belated on this account.”

I doubt that access to legal assistance could serve as a precondition for “reasonably considering” that the civil action should have a prospect of success. In any event, in the present case the applicants had access to a highly qualified lawyer who advised them to bring a civil action in order to create a basis for the application of Article 5 of the Convention. And they should have been aware of the futility of such actions because the courts had previously rejected their appeals within the criminal proceedings, so that the domestic courts never in fact concluded that the detention was unlawful.

Problem of effective remedy

The effectiveness of the civil action is an integral part of the problem. According to another established precedent, a domestic remedy which is not subject to any precise time-limit and thus creates uncertainty cannot be regarded as effective (see Williams v. the United Kingdom ( dec. ), no. 32567/06, 3 August 2006, and Nicholas v. Cyprus , no. 63246/10, 9 January 2018, §§ 38-39). There are no examples to confirm that civil proceedings can result in a finding that a detention was unlawful. This has prompted the Court to presume that such a remedy is not effective (see Belchev v. Bulgaria ( dec. ), no. 39270/98 , 6 February 2003; Nakhmanovich v. Russia ( dec. ), no. 55669/00 , 28 October 2004; and, more recently, Porowski v. Poland , no. 34458/03, § 98, 21 March 2017). This presumption could be overturned, and an action for damages could be regarded as an effective remedy which needs to be exhausted, provided that its practicability has been convincingly established (see Lawniczak v. Poland ( dec. ), no. 22857/07, § 41, 23 October 2012, and Gavril Yosifov v. Bulgaria , no. 74012/01, § 42, 6 November 2008).

The cases of McCaughey and Others v. the United Kingdom (no. 43098/09, 17 July 2013) , Hemsworth v. the United Kingdom (no. 58559/09, 16 July 2013) provide examples of the impact of pending civil proceedings and ongoing investigations on the Court ’ s assessment of the substantive and procedural complaints arising out of alleged unlawful killings having occurred many years previously. The Court decided not to examine the applicants ’ argument, under the substantive limb of Article 2, to the effect that their close family members had been unlawfully killed. It observed that a civil action was pending, and the issue of the lawfulness or otherwise of the deaths as well as the establishment of the material facts could be determined in the course of the civil proceedings. These examples, being very specific, are, in my view, inapplicable to the present case. However, the opposite approach which was adopted by the Court in the cases of Izci v. Turkey (no. 42606/05, 23 July 2013) and Athan v. Turkey (no. 36144/09, 3 September 2013) would be applicable. In both cases the Government ’ s objection that the applicants could have brought compensation proceedings is rejected with reference to settled case-law (see Atalay v. Turkey, no. 1249/03, § 29, 18 September 2008; Ali Güneş v. Turkey , no 9829/07, § 32, 10 April 2012; and Pekaslan and Others v. Turkey , nos. 4572/06 and 5684/06, § 47, 20 March 2012).

In paragraphs 72 and 73 of the present judgment the majority used a new criterion to assess the effectiveness of the remedy – the examination of the merits of the complaint by a competent judicial body. The majority stressed that the applicants obtained a first decision from the domestic courts (within the civil proceedings) that the detention in question had been lawful. They concluded therefore that “there has been no suggestion, and there is no indication that the proceedings had no prospects of success or could not afford redress.”

It is not easy to accept that conclusion. The primary purpose of the civil action is to claim moral damages under domestic law. It presumes that there should be a separate decision establishing the unlawfulness of the detention. The civil action is not designed to act as an appeal and, therefore, the judicial body cannot be considered competent to offer effective redress and the action had no prospect of success.

The situation was different in the present case. Within the criminal proceedings, the applicants did not appeal against some decisions authorising detention, and they unsuccessfully appealed in respect of other detention orders. Since the applicants did not challenge the detention orders within the criminal proceedings, the civil action could be rejected by a civil court on the basis of Article 134 of the Code of Civil Procedure, since a separate decision on the same matter had already been taken by a court.

Or else the civil court could declare the claim inadmissible due to the absence of any decision declaring the detention unlawful. However, domestic civil procedure is not flexible enough to respond to such challenges. It needs the criteria (doctrines) used by the Court, such as an arguable claim or the absence of any prospect of success ( явно не обоснованная жалоба ).

It is difficult to determine whether the problem arising from the present case is structural or could be resolved by the existing specialised mechanisms focused on the problem of redress for unlawful detention. As things stand, the current situation in domestic law (see paragraphs 52-54 of the judgment), including the positions of the Russian Supreme Court (Ruling no. 50 of 17 November 2015 and Ruling no. 22 of 29 October 2009) and of the Russian Constitutional Court (Decision no. 1049-O of 2 July 2013 and Decision no. 149-O-O of 17 January 2012) are unclear, and do not take into account the most important factor in avoiding uncertainty for the authorities – which is time.