CONCURRING OPINION OF JUDGE DEDOV

Due to my previous experience concerning an issue of State responsibility under domestic law, I have a different view on the approach to be taken in paragraphs 61-63 of the judgment in finding a violation of Article 5 § 5 of the Convention. I would not go so far as to say that domestic law precluded the applicant from obtaining compensation. I believe that it is not for the Court to interpret the domestic law (namely Articles 1070 and 1100 of the Russian Civil Code) and to say that, under Article 1100, an award in respect of non-pecuniary damage may be made against the State, irrespective of any fault on the part of State officials, only in the specific exhaustively listed cases.

The Russian Constitutional Court had occasion to interpret the above provisions of national law (judgment no. 9-П of 16 June 2009) in connection with apprehension and administrative arrest. It expanded the scope of Article 1100 in accordance with Article 5 of the Convention, finding it to be applicable to other situations involving deprivation of liberty, including administrative offences. The Court may conclude that the placement of the child in a closed educational institution is not directly regulated by Article 1100 but not excluded from the scope thereof, and that the provision therefore requires further interpretation.

Hence, it is premature to say that in the event of the unlawful placement of a minor in a closed educational institution, compensation may be claimed only if the plaintiff can prove the authorities ’ “fault”. I would instead favour the formula set out in § 55 of the Shcherbina judgment ( Shcherbina v. Russia , no. 41970/11, 26 June 2014), which reads as follows:

“55. It ’ s not the Court ’ s role to give a definitive interpretation of the relevant provisions of Russian law on the liability of the State for unlawful detention within extradition proceedings. However, the law referred to by the Government as such is not sufficiently clear and left room for interpretation. The Government did not refer to other sources of law which would help in interpreting the legislative provisions at issue. Therefore, the Court is not persuaded that the applicant ’ s claim for damages had prospects of success. Due to that uncertainty, the Court is prepared to conclude that a claim for compensation was not an ‘ effective remedy ’ within the meaning of Article 35 of the Convention, and that the applicant cannot be blamed for not having used that legal avenue. ...”