THIRD SECTION

CASE OF MKRTCHYAN v. RUSSIA

(Application no. 50147/07)

JUDGMENT

STRASBOURG

21 November 2017

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

In the case of Mkrtchyan v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 31 October 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 50147/07) 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 an Armenian national, Mr Arsen Mkrtchyan (“the applicant”), on 26 October 2007.
2.  The applicant was represented by Ms N. Piliposyan, a lawyer practising in Yerevan. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. The Armenian Government did not make use of their right to intervene (Article 36 § 1 of the Convention).
3.  On 1 December 2016 the complaints concerning the applicant’s detention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1969 and lives in Yerevan.
5.  On 16 August 2004 he was charged with fraud in Armenia and the Kentron and Nork-Marash District Court in Yerevan issued an arrest warrant.
6.  On 8 November 2006 the applicant was arrested in Ufa, Russia. On an unspecified date the Russian Prosecutor General received an extradition request from his Armenian counterpart.
7.  On an application a district prosecutor in Ufa, on 27 December 2006 the Kirovskiy District Court in Ufa remanded the applicant in custody, without setting a time-limit for his detention. On 13 February 2007 the Supreme Court of Bashkortostan upheld the detention order on appeal.
8.  On 23 March 2007 a deputy Prosecutor General granted the extradition request; on 17 July 2007 the Supreme Court of Russia upheld that decision in final instance.
9.  On 24 August 2007 the applicant was extradited to Armenia where he was acquitted of all charges and released.
10.  On 16 February 2008, when attempting to return to Russia, the applicant was detained by the Russian border control and held in custody until 22 February 2008. The parties did not produce a record of the applicant’s arrest or any judicial decision authorising his detention.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
11.  The applicant complained that his detention pending extradition and his later detention at the airport had been in breach of the requirements of Article 5 of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(f) the lawful arrest or detention of ... a person against whom action is being taken with a view to ... extradition.”
Section 2.01	A.  Admissibility
12.  The Government submitted firstly that the complaint in the part concerning the period of initial detention without a judicial decision was belated because the applicant should have lodged it within six months of the end of that period. The applicant replied that he had raised the issue of his unlawful detention in his applications to Russian courts. The latest decision had been given on 17 July 2007, that is to say, less than six months before the date of introduction of his application.
13.  The Court notes that the proceedings which ended with the Supreme Court’s decision of 17 July 2007 were concerned with the decision on the applicant’s extradition rather than with the lawfulness of his detention. They cannot therefore be taken into consideration in the chain of exhaustion of domestic remedies and, irrespective of whether or not the appeal hearing on 13 February 2007 is to be considered part of the exhaustion process, the complaint about the applicant’s detention in the period from 8 November to 27 December 2006 was introduced more than six months after the appeal decision and is therefore belated (see Khodzhamberdiyev v. Russia, no. 64809/10, § 87, 5 June 2012; Alikhonov v. Russia, no. 35692/11, § 51, 31 July 2012; and Umirov v. Russia, no. 17455/11, § 132, 18 September 2012). Accordingly, this part of the complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
14.  The Government further claimed that the applicant had not exhausted the domestic remedies in respect of the complaint about his detention at the airport in February 2008. In their view, he should have filed a civil claim for compensation under Article 1070 of the Civil Code. The applicant replied that he was unable to lodge a claim because he had not had any communication devices during his detention or a material opportunity to file such claim after his return to Armenia.
15.  The Court reiterates that Russian law restricts claims under Article 1070 of the Civil Code to the specific types of detention and does not provide for State liability in the situation of unacknowledged detention such as is at issue in the present case (see Ivan Kuzmin v. Russia, no. 30271/03, § 79, 25 November 2010, and contrast with Tsonev v. Bulgaria (dec.), no. 9662/13, § 63, 30 May 2017). In the absence of an explicit and formal acknowledgement by the domestic court of the unlawful nature of the applicant’s detention, a claim for compensation had no prospects of success and the applicant was not required to exhaust that remedy (see Chuprikov v. Russia, no. 17504/07, § 98, 12 June 2014). Accordingly, the Court dismisses the Government’s objection.
16.  In the light of the above, the Court considers that the applicant’s complaint about his detention pending extradition on the basis of the detention order of 27 December 2006 and his later detention in February 2008 is not manifestly ill-founded or inadmissible on any other grounds and must therefore be declared admissible.
Section 2.02	B.  Merits
17.  The Government made no submissions on the merits. The applicant maintained his complaints.
(a)	1.  Detention on the basis of the order of 27 December 2006
18.  The Court has already found in a similar context that the applicant’s detention pending extradition on the basis of a judicial decision which did not set a time-limit for his detention and rested on provisions of Russian law that were neither precise nor foreseeable in their application could not be considered “lawful” for the purposes of Article 5 of the Convention (see Nasrulloyev v. Russia, no. 656/06, §§ 73-77, 11 October 2007). These findings are applicable in the instant case. In these circumstances, the Court does not need to consider separately whether the extradition proceedings were conducted with “special diligence”.
(b)	2.  Detention from 16 to 22 February 2008
19.  It was submitted by the applicant and undisputed by the Government that his detention from 16 to 22 February 2008 had been effected in the absence of a judicial decision or, for that matter, any procedural act regarding the deprivation of liberty to which he had been subjected. The Court has previously found that, in the light of the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities, an unrecorded detention of an individual is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others v. Russia, no. 69480/01, § 122, ECHR 2006-XIII (extracts)).
(c)	3.  Conclusion
20.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention on the basis of the order of 27 December 2006 and his later detention from 16 to 22 February 2008.
Article III.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
21.  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.”
Section 3.01	A.  Damage
22.  The applicant claimed 7,500 euros (EUR) in respect of pecuniary damage, representing the value of a watch that had been taken away from him in the detention facility and his loss of earnings over the ten-month period of detention. He further claimed EUR 40,000 in respect of non-pecuniary damage.
23.  The Government asked the Court to apply its established case-law under Article 41 in adjudicating the applicant’s claim.
24.  The Court notes that the applicant did not submit any documents supporting his claim in respect of pecuniary damage. Moreover, it does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim (see Nakhmanovich v. Russia, no. 55669/00, § 102, 2 March 2006). On the other hand, it awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.
Section 3.02	B.  Costs and expenses
25.  The applicant also claimed EUR 1,000 for the legal costs before the Court, representing twenty hours’ work of his counsel.
26.  The Government asked the Court to apply its established case-law under Article 41 in adjudicating the applicant’s claim.
27.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 850 for the proceedings before the Court, plus any tax that may be chargeable on the applicant.
Section 3.03	C.  Default interest
28.  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 complaints concerning the applicant’s detention after 27 December 2006 and in February 2008 admissible and the remainder inadmissible;

2.  Holds that there has been a violation of Article 5 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months the following amounts:
(i)  EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 21 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Branko Lubarda
	Registrar	President