AS TO THE ADMISSIBILITY OF
by Stanislav Borisovich KOMYAKOV
The European Court of Human Rights (First Section), sitting on 8 January 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 23 March 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Stanislav Borisovich Komyakov, is a Russian national, who was born in 1955 and lives in Ivanovo. He was represented by Ms O. Mikhailova, a lawyer practising in Moscow. The respondent Government were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings against the applicant
On 1 October 2000 the applicant was arrested on suspicion of murder of a police officer and attempted murder of several other persons. Later the police started suspecting him of theft.
On 3 October 2000 the Zavolzhsk District Assistant Prosecutor ordered that the applicant be remanded in custody in pre-trial detention centre no. 1 in Ivanovo. On 10 October 2000 the applicant was charged with aggravated theft under Article 158 point 3 “b” of the Criminal Code.
On 29 November 2000 the Ivanovo Regional Prosecutor extended the applicant's detention until 31 March 2001. On 29 March 2001 the prison administration informed the applicant that his detention had been extended until 17 June 2001.
On an unspecified date the applicant filed an application for release with the court alleging, inter alia, that he had been seriously ill. On 29 January 2001 his application was dismissed by the Ivanovo Oktyabrskiy District Court by reference to Article 98 of the Criminal Procedure Code. The court found that the gravity of the offences alleged against him was a sufficient ground for his detention. On 20 February 2001 the Ivanovo Regional Court upheld that decision, adding that the applicant had been arrested only four months after he had been released after having served a previous sentence. The Regional Court also noted that at that stage of the proceedings it was not called upon to examine the validity of proof of the applicant's guilt.
On 15 June 2001 the General Prosecutor extended the applicant's detention until 29 September 2001. The applicant was informed about that decision on 19 June 2001. The letter from the General Prosecutor's Office did not contain any reasons for extending his detention. On 7 June 2001 the Deputy Prosecutor of the Ivanovo Region, in response to a letter from the applicant, informed him that his detention had been extended on the basis of the strength of the evidence in the case-file, his personality, and age. The prosecutor also relied on Article 98 of the Code of Criminal Procedure (CAP), which enabled the prosecution to place the suspect in custody on the sole ground of the gravity of the charges against him (see the “Relevant domestic law” part below).
On an unspecified date the applicant challenged the prosecutor's letter of 7 June 2001 before a court. On 5 November 2001 the Ivanovo Oktyabrsky District Court established that Article 98 of CPC, referred to by the prosecutor, had been abrogated on 9 March 2001. However, the court did not order the applicant's release.
The applicant submitted a new application for release. On 8 November 2001 the Ivanovo Oktyabrsky District Court dismissed it, relying on the gravity of charges against the applicant and his previous convictions. That decision was upheld by the Ivanovo Regional Court on 27 November 2001. The applicant submits that those decisions were taken in his absence.
On 24 September 2001 the General Prosecutor extended the applicant's detention until 29 December 2001. On 1 October 2001 the applicant was informed about that decision. The letter from the General Prosecutor's Office did not contain any reason for taking the decision.
According to the Government, on 29 December 2001 the applicant was released under an obligation not to leave the city without permission from the prosecution.
On 10 June 2002 the applicant was fully acquitted by the jury of the Ivanovo Regional Court. On 26 November 2002 that decision was upheld by the Supreme Court of the Russian Federation.
2. The publication in the press
On 6 March 2001 the newspaper “News World” published an article describing the circumstances of the applicant's arrest and detention. The applicant was mentioned in this article as an accomplice to a serious crime. The article contained an interview with an anonymous officer of the Organised Crime Department of the Ministry of the Interior. It remains unclear whether the applicant has ever applied to the domestic courts for redress and what the outcome of the proceedings was, if any.
B. Relevant domestic law and practice
The Civil Code of the Russian Federation provides as follows:
Article 1070: Responsibility for damage caused by the unlawful acts of nvestigative authorities, prosecuting authorities and courts
“1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful detention on remand ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies ... ”
Article 1100: Grounds for compensation for non-pecuniary damage
“Compensation for non-pecuniary damage shall be made irrespective of the fault of the person causing the damage when:
...the damage is caused to a citizen as a result of his unlawful conviction, unlawful criminal prosecution, unlawful detention on remand ....”
The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeaser. However, the notions of “unlawful” prosecution or detention (see Article 1070) are not developed in the relevant provisions of the Civil Code. Certain guidelines on this subject may be obtained from Decree No. 4892-X of the Supreme Council of the USSR of 18 May 1981, which concerns compensation for damage caused by the unlawful acts of law-enforcement agencies. Point 2 of that Decree provides that an acquitted person has the right to obtain damages from the State; the only exception concerns cases when the person was charged after making a false confession1. Furthermore, in the case of Paskhalov (published in the Bulletin of the Supreme Court, 1993 г., N 1, page 5), the Supreme Court of the Russian Federation used the following wording: “... unlawful attribution of criminal liability, namely when an acquittal judgment was given ...”. These words, as well as the subsequent judicial practice,2 suggest that the domestic courts regard criminal proceedings which ended with an acquittal to be “unlawful” at the outset. Therefore, if there was an acquittal, pre-trial detention would be “unlawful” even if all the substantive and procedural rules were complied with when it was imposed.
Under the new Code of Criminal Proceedings (CCrP), in force as from 1 July 2002, the acquitted person has the right to compensation for pecuniary (Article 135 of the Code) and non-pecuniary damage (Article 136) caused by prosecution (Article 133 § 1) and unlawful application of measures of restraint, including pre-trial detention (Article 133 § 3). Under Article 136 of the CCrP, if information about the arrest or prosecution of a person was made public in the media, the acquitted person, his relatives, or a public prosecutor may request the publication of a retraction by the same medium.
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court notes that the applicant's complaints about the conditions of his detention are too vague, and are not corroborated by any evidence. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.
“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:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
In their observations the Government indicated that on 10 June 2002 the applicant had been fully acquitted. The acquittal, upheld on 26 November 2002 by the Supreme Court, gave the applicant the unqualified right to compensation for pecuniary and non-pecuniary damage caused by wrongful prosecution, pursuant to Article 1100 of the Civil Code of the Russian Federation, a right which he had not used.
The Court notes that from the materials in the case-file it follows that, indeed, the applicant chose not to claim damages for his detention. The question arises whether a civil action under Article 1100 of the Civil Code, read in conjunction with the decisions of the Supreme Court, can be regarded as a remedy to be used for the purposes of Article 35 of the Convention.
The Court recalls its findings in the case of Trepashkin v. Russia, (no. 36898/03, §§ 78 et seq., 19 July 2007). In that case the Court analysed the remedy provided by Article 1100 of the Russian Civil Code. It noted that “that provision of the Civil Code, as interpreted by the Russian courts, afforded the applicant a genuine opportunity to obtain pecuniary redress for the detention he complained of”. The Court notes that the acquittal made his detention “unlawful” in domestic terms, and, consequently, made him eligible for compensation. That “unlawfulness” covered all aspects of the applicant's detention, and provided him with a practical opportunity to obtain compensation for it at national level. The Court notes that the applicant did not claim that this remedy was not “effective and adequate”. In such circumstances the Government's objection should be sustained: the applicant failed to exhaust the domestic remedies available to him. Consequently, this part of the complaint under Article 5 should be declared inadmissible for non-exhaustion under Article 35 §§ 1 and 4.
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
As to the fairness of the proceedings, the Court notes that, as a general rule, an acquitted defendant or a person against whom criminal proceedings were discontinued cannot claim to be a victim of violations of the Convention which, according to him, took place in the course of the proceedings against him (see Osmanov and Husseinov v. Bulgaria (dec.), no. 54178/00, 4 September 2003). Therefore, the applicant cannot claim to be a victim of the alleged violation. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
Even assuming that the amount of compensation does not depend on the length of the proceedings, the Court notes that the proceedings in question lasted two years, one month and 29 days. The applicant was suspected of serious crimes, he was tried by a jury, and had his case reviewed by the Supreme Court. Having regard to the materials in its possession, the Court does not detect any period of inactivity imputable to the State, which would raise an issue under Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.
5. The Court has examined the remainder of the applicant's complaints as submitted by him. However, having regard to all material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos
1. In 2004 the Supreme Court decided that the Decree of 1981 should apply to disputes concerning compensation for non-pecuniary damage caused by unlawful prosecution and conviction (Ruling of 1 June 2004, No. КАС04-203).
2. See, among other authorities, Ruling No. 5-65/04 in the case of S., quoted in the “Overview of the judicial practice of the Supreme Court” of 23 November 2005.