DISSENTING OPINION OF JUDGE DEDOV

I regret that I cannot share the majority ’ s opinion expressed in paragraphs 74-77 of the judgment regarding the victim status of the applicant for the purposes of Article 5 of the Convention. In my view, the Russian court acknowledged the breach of the Convention both expressly and in substance, though I believe that the national judge is not required to make reference to the Convention or to any of its Articles or (as was requested by the Chamber in the present case) to any paragraph or sub-paragraph of Article 5. I strongly feel that it should be enough to acknowledge a breach of fundamental rights and freedoms, since such rights could derive from various sources, including national law, national constitutions, regional international agreements and universal international declarations and covenants.

Thus, the Russian court did refer to Article 5 and recognised that the applicant ’ s right to liberty had been infringed as he had been “a victim of arrest or detention”, “unlawfully prosecuted, unlawfully detained ... and, subsequently, unlawfully subjected to an undertaking not to leave a specified place” (see paragraph 19). Therefore, the national court was not obliged to acknowledge that the detention had been excessive or that the decisions ordering detention had not been justified in accordance with the provisions of Article 5.

The present case differs from the case of Labita (see Labita v. Italy [GC], no. 26772/95, ECHR 2000 ‑ IV), which was cited by the Chamber to substantiate its reasoning. The Labita judgment states as follows:

“ 143. In the instant case, even though the Palermo Court of Appeal, in a decision of 20 January 1998 lodged at the registry on 23 January 1998, acceded to the applicant ’ s claim for compensation for unjust detention, it based its decision on Article 314 § 1 of the Code of Criminal Procedure, which affords a right to reparation to “anyone who has been acquitted in a judgment that has become final”... The detention is deemed to be “unjust” as a result of the acquittal, and an award under Article 314 § 1 does not amount to a finding that the detention did not satisfy the requirements of Article 5 of the Convention. While it is true that the length of the applicant ’ s detention pending trial was taken into account in calculating the amount of reparation, there is no acknowledgment in the judgment concerned, either express or implied, that it had been excessive.”

In Labita the national court automatically applied the reparation procedure as the detention was deemed to be “unjust” as a result of the acquittal. In the present case the national court awarded the applicant compensation for non-pecuniary damage under the civil law of tort. The court merely confirmed that his right to “rehabilitation” was recognised, and then referred to another procedure under which the rehabilitation itself should be implemented (see paragraphs 19, 20 and 46 of the judgment). Russian civil law provides that the unlawfulness of State actions is a basis for State liability and an award of non-pecuniary damages (see paragraphs 44-45 of the judgment).

Therefore, the basis for compensation was different in these two cases: in Labita the compensation was made automatically as “reparation to anyone who has been acquitted”. Under Russian law, compensation for non-pecuniary damage requires prior recognition of the unlawfulness of State actions. The Russian judge did actually recognise the unlawfulness of State actions in the present case.

Other examples further illustrate these differences. The conclusion reached in Shalya v. Russia (no. 27335/13, 13 November 2014) is similar to Labita because compensation was automatically awarded for damage under the rehabilitation proceedings (see Shalya , cited above, §§ 8 and 11-23). The same approach was used in El ğ ay v. Turkey (no. 18992/03, 20 January 2009 ):

“32. In this connection, the Court observes that the applicant had the possibility of bringing a claim for compensation, relying on Section 1(6) of Law no. 466, as the criminal proceedings against him had ended with his acquittal. However, it notes that, in awarding compensation under the terms of Law no. 466, the national courts based their assessment solely on the fact that there had been an acquittal. The national courts ’ assessment was an automatic consequence of the acquittal and did not amount to the establishment of any violation of paragraphs 1 to 4 of Article 5 (see Sinan Tanrıkulu and Others v. Turkey , no. 50086/99, § 50, 3 May 2007; Medeni Kavak v. Turkey , no. 13723/02, § 34, 3 May 2007; Saraçoğlu and Others , cited above, § 52).”

Accordingly, it was not necessary to examine the merits of the claim under Article 5.