FIRST SECTION

CASE OF SHALYA v. RUSSIA

(Application no. 27335/13)

JUDGMENT

STRASBOURG

13 November 2014

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

In the case of Shalya v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Khanlar Hajiyev, President,
	Erik Møse,
	Dmitry Dedov, judges,
and Søren Prebensen, Acting Deputy Section Registrar,
Having deliberated in private on 21 October 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 27335/13) 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 Aleksandr Viktorovich Shalya (“the applicant”), on 15 March 2013.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3.  On 19 December 2013 the complaint concerning an excessive duration of the applicant’s pre-trial detention was communicated to the Government and the remainder of the application was declared inadmissible.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1981 and lives in the Krasnodar Region.
5.  On 29 November 2010 the applicant was arrested on suspicion of murder. On 27 October 2011 and other dates he was additionally charged with membership in a criminal syndicate and other offences.
6.  On 27 January, 19 April, 19 July, 20 September, 17 October and 25 November 2011, 19 January, 16 April and 19 October 2012 and on other dates the authorised period of the applicant’s detention was extended. Each time the courts relied chiefly on the gravity of the charges against him. On 1 November 2012 the Krasnodar Regional Court considered and rejected, in a summary fashion, the applicant’s and his co-defendants’ appeals against the extension order of 19 October 2012.
7.  The jury found the applicant not guilty of the offences he was charged with. On 19 June 2013 the applicant was acquitted and released. On 30 September 2013 the Supreme Court of the Russian Federation upheld the acquittal on appeal.
8.  Invoking his “right to rehabilitation” under Article 133-135 of the Code of Criminal Procedure, the applicant brought a claim against the Federal Treasury for the loss of income and reimbursement of legal fees. He did not seek any compensation for non-pecuniary damage. By judgment of 28 January 2014, the Krasnodar Regional Court granted his claim in part.
II.  RELEVANT DOMESTIC LAW
9.  Article 133 of the Code of Criminal Procedure governs the exercise of the “right to rehabilitation” which is, in essence, the restoration of the person to the status quo ante following an acquittal or discontinuance of the criminal proceedings. This right includes the right to compensation in respect of pecuniary and non-pecuniary damage and the restoration of labour, pension, housing and other rights. The damage must be compensated for in full, irrespective of the fault of the investigator, prosecutor or court (paragraph 1). Paragraph 2 confers the “right to rehabilitation” on defendants who have been acquitted, against whom charges have been dropped, in respect of whom proceedings have been discontinued or whose convictions have been quashed in their entirety or in part. However, no right to compensation arises where the prosecution is terminated on “non-rehabilitative” grounds, such as in the case of an amnesty or where the prosecution has become time-barred (Article 133 paragraph 4). Paragraph 3 provides that “any individual who has been unlawfully subjected to preventive measures in criminal proceedings shall have the right to rehabilitation”. In a judgment acquitting an individual a court has to mention explicitly that he has the right to “rehabilitation” (Article 134). A claim for compensation of pecuniary damage is to be lodged with the same authority which issued the decision to acquit or the decision to terminate the criminal prosecution (Article 135 § 2), whereas any claims for monetary compensation of non-pecuniary damage are to be lodged with civil courts and examined under the relevant provisions of the Code of Civil Procedure (Article 136 § 2).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
10.  The applicant complained that the duration of his pre-trial detention had been excessively long in breach of Article 5 § 3 of the Convention, which reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A.  Admissibility
11.  The Government pointed out that, having been acquitted, the applicant could exercise his “right to rehabilitation” under Article 133 of the Code of Criminal Procedure. The “rehabilitation” includes payment of compensation for the damage incurred on account of unlawful prosecution and unlawful application for a preventive measure, without there being a need to examine in detail whether or not such measure was applied in compliance with Article 5 of the Convention. The acknowledgment of the applicant’s “right to rehabilitation” in the acquittal automatically implied that the State acknowledged a violation of the applicant’s right under Article 5 of the Convention. As the applicant has obtained compensation in respect of the pecuniary damage and has been entitled to bring a claim for compensation in respect of non-pecuniary damage without any time-limit, the Government submitted that the application was inadmissible either because of the non-exhaustion of domestic remedies or because of the loss of the victim status by the applicant.
12.  The applicant maintained his complaint.
13.  The Court reiterates that a remedy can only be considered “effective” if it is capable either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 96, 10 January 2012, with further references).
14.  Where the person concerned is in custody, the Court has found that an action for damages cannot be seen as an effective remedy in respect of complaints under Article 5 § 3 about an excessive length of time spent on remand. That finding was premised on the distinction between the right to trial within a reasonable time or to release pending trial which is enshrined in paragraph 3 of Article 5, and the right to receive compensation for unlawful detention which is covered by paragraph 5 of Article 5. In the situation of on-going pre-trial detention, the only remedy which may be considered “effective” is one which is capable of leading to a binding decision for the concerned individual’s release (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 40, 6 November 2008, with further references, and Shcheglyuk v. Russia, no. 7649/02, §§ 31-34, 14 December 2006).
15.  Nevertheless, the Court has also held that where the impugned detention has come to an end, an action for damages, which is capable of leading to a declaration that the detention was unlawful or excessively long and to a consequent award of compensation, may be an effective remedy which needs to be exhausted, provided that its practicability has been convincingly established (see Ławniczak v. Poland (dec.), no. 22857/07, § 41, 23 October 2012, and Gavril Yosifov, cited above, § 42).
16.  The Court further reiterates that the issue whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)). In the instant case, the applicant lodged his application with the Court on 15 March 2013, whereas the acquittal in his criminal case was pronounced only on 19 June 2013. Consequently, at the time of lodging his application it was not open to the applicant to claim compensation in connection with his acquittal which is an independent ground for rejecting the Government’s objection as to the alleged non-exhaustion of domestic remedies (compare Ławniczak v. Poland (dec.), §§ 43-47, cited above).
17.  Even accepting that the last stage of available remedies was to be reached after the lodging of the application but before the Court is called upon to pronounce itself on admissibility, the Court is unable to find that the applicant failed to exhaust any effective remedy for his complaint about an excessive length of pre-trial detention. The Court has already found that the present state of Russian tort law precludes the individual who has not been cleared of criminal charges against him from receiving compensation for the pre-trial detention that was effected in breach of Article 5 of the Convention (see Abashev v. Russia, no. 9096/09, § 30, 27 June 2013; Korshunov v. Russia, no. 38971/06, § 62, 25 October 2007, and Govorushko v. Russia, no. 42940/06, § 60, 25 October 2007).
18.  According to the Government, the situation is different in case of an acquittal, since the applicant’s acquittal made his prosecution unlawful in domestic terms and, consequently, made him eligible for compensation in the framework of “rehabilitation” proceedings. The notion of “unlawfulness” covered all aspects of the applicant’s detention, and provided him with a practical opportunity to obtain compensation for it at national level.
19.  This argument is insufficient to convince the Court of the effectiveness of this remedy. It has difficulty accepting as effective the remedy whose availability depends on the establishment of the defendant’s guilt or innocence. The mere fact that a domestic court recognises, according to national law, the right of an individual to receive compensation after an acquittal or discontinuation of the proceedings is not tantamount to acknowledging that the pre-trial detention was effected in breach of the Convention. In the “rehabilitation” proceedings, the Russian authorities need not examine, and still less acknowledge, at least in substance, that the applicant’s detention was formally defective or that it was based on insufficient reasons or exceeded a reasonable time (see Sherstobitov v. Russia, no. 16266/03, §§ 100-101, 10 June 2010, and Trepashkin v. Russia, no. 36898/03, § 69, 19 July 2007). The award of compensation is subject to fulfilment of specific conditions not required under Article 5 § 3, namely the applicant’s acquittal or discontinuation of the proceedings (see Tomasi v. France, 27 August 1992, § 79, Series A no. 241‑A). The only ground for awarding the applicant compensation is the termination of the criminal proceedings against him rather than any alleged procedural irregularity in the pre-trial detention. This ground for compensation does not correspond to the basis of the applicant’s complaint under Article 5 § 3 and the alleged violation cannot therefore be redressed in these proceedings (see, mutatis mutandis, Hađi v. Croatia, no. 42998/08, § 20, 1 July 2010).
20.  In the Government’s own admission, the entire period of pre-trial detention is deemed to be “unlawful” as a result of the acquittal, without there being a need to examine in detail whether the pre-trial detention was applied in compliance with Article 5 of the Convention. Any eventual award that can be made in the “rehabilitation” proceedings 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 can be taken into account in calculating the amount of reparation, there would be no acknowledgment in these proceedings, either express or implied, that it had been excessive or in breach of Article 5 § 3. Thus, despite the payment of a sum as reparation for the time he spent in detention pending trial, the applicant would still be a “victim” within the meaning of Article 34 of the Convention of a violation of Article 5 § 3 (see Labita v. Italy [GC], no. 26772/95, §§ 143-144, ECHR 2000‑IV).
21.  The fact that the applicant was awarded compensation for loss of salary and for expenses incurred in the criminal proceedings cannot affect this position. That redress resulted from the fact that he was acquitted rather than from any finding of a violation of the right on which he relies before the Court. The compensation awarded to the applicant cannot be considered to constitute recognition of or redress for the violation of the Convention rights alleged by him in the present application. It therefore cannot suffice to deprive the applicant of his status as a “victim” within the meaning of Article 34 of the Convention (see Kučera v. Slovakia, no. 48666/99, § 79, 17 July 2007).
22.  While any award of compensation in the “rehabilitation” proceedings is undoubtedly a measure favourable to the applicant, the Court reiterates that even a favourable measure is not in principle sufficient to deprive him of the status as a victim of the alleged violation unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V). As the Court has found above, the “rehabilitation” proceedings under the Russian Code of Criminal Procedure are not concerned with the allegedly excessive nature of the pre-trial detention and cannot lead to the acknowledgement of the alleged violation of the right to trial within a reasonable time or to release pending trial. It would therefore be unreasonable to require the applicant to institute such proceedings which are not capable of bringing about an acknowledgement of the breach of the Convention and are thus unable to deprive him of his status as a “victim” of the alleged violation.
23.  The Court finds that the compensation claim under Article 133 of the Code of Criminal Procedure is not an effective remedy for the applicant’s complaint about a violation of Article 5 § 3. The Government’s objection must therefore be dismissed. As this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds, it must therefore be declared admissible.
B.  Merits
24.  The Government submitted no observations on the merits of the case.
25.  The Court notes that the period to be taken into consideration lasted from 29 November 2010, the date of the applicant’s arrest, to 19 June 2013, the date of his release. Its overall duration was two years, six months and twenty days.
26.  The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012).
27.  Having regard to its case-law in similar cases and to the facts of the present case, the Court finds that there has been a violation of Article 5 § 3 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
28.  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.”
A.  Damage
29.  The applicant claimed 522,146.87 euros (EUR) in respect of pecuniary and non-pecuniary damage.
30.  The Government rejected his claim as unsubstantiated.
31.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 2,700 in respect of non-pecuniary damage.
B.  Costs and expenses
32.  The applicant did not claim any costs or expenses.
C.  Default interest
33.  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 § 3 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date of the judgment, EUR 2,700 (two thousand seven hundred 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 13 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Prebensen	Khanlar Hajiyev
	Acting Deputy Registrar	President