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URL: http://www.bailii.org/eu/cases/ECHR/2010/1396.html
Cite as: [2010] ECHR 1396
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
26428/03
by Aleksandr Vyacheslavovich MEDVEDEV
against Russia
The European Court of Human Rights (First Section), sitting on 9 September 2010 as a Chamber composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and Søren
Nielsen, Section
Registrar,
Having regard to the above application lodged on 27 April 2002,
Having regard to the partial decision of 1 June 2006,
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 FACTS
The applicant, Mr Aleksandr Vyacheslavovich Medvedev, is a Russian national who was born in 1978 and lives in Moscow. He is represented before the Court by Mr A. Yablokov, a lawyer practising in Moscow. The Russian Government (“the 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.
On 12 March 2002 the police department of the Tekstilshchiki District of Moscow started an investigation of a residential burglary committed in the district earlier (criminal case no. 127215).
On 19 March 2002 the police investigator questioned an eyewitness to that burglary, who identified the applicant as one of the perpetrators. The investigator questioned the applicant, who denied involvement in that crime. The Government submitted a copy of the record of interview, signed by the applicant. On several occasions the applicant was questioned by an investigator in charge of criminal case no. 127215. However, no charges were brought against him. In July 2002 the investigation into the burglary was stayed.
1. The applicant's arrest and “administrative detention”
(a) The applicant's account
According to the applicant, on 10 April 2002, at about 10 a.m., his car was stopped on the road. Police officers in plain clothes pulled the applicant out of his car and took him to the nearby police station. The applicant submitted that he had been arrested in connection with the burglary, and that the policemen had been trying to extort a confession from him.
At 5:10 p.m. a report of an “administrative offence” was drawn up by the police officers. The report stated that the applicant had been detained near the Tekstilschiki metro station for using obscene language in a public place. The police confiscated his belongings, without making a record of what they had done, and locked the applicant in a cell.
On 11 April 2002, at about 5 p.m., the applicant was brought before a judge of the Lyublinskiy District Court of Moscow. The applicant claimed that he had not been given access to the case file, the judge had not allowed him to present his arguments and that, despite his requests, he had not been allowed to have a lawyer.
The judge sentenced the applicant to seven days' “administrative detention” (a sanction for public disturbance, provided by the Code on Administrative Penalties – see “Relevant domestic law” below). The court decision referred to the police report and statements of one of the policemen who had allegedly arrested the applicant near the metro station. The text of the decision indicated that it was not subject to any appeal and that the applicant had refused to sign it. The applicant claimed that he had never been served with a copy of the decision, or even seen it. He had never refused to sign the second page of the court's judgment, since he had not seen it. He was informed about the sentence by the policemen escorting him.
On the same day the applicant took part in an identification parade within case no. 127215.
On 12 April 2002 the applicant's relatives contacted his lawyer, who went immediately to the police station where the applicant was being detained. However, the lawyer was denied access to the applicant for the reason that the applicant was at that time being questioned by the police in connection with the burglary.
On 14 April 2002 the lawyer visited the applicant in the detention facility of the police station.
On 15 April 2002 the applicant's lawyer requested the Lyublinskiy District Court to give him access to the materials of the administrative case. It appears that the registry personnel and the judge searched in the archives of the court, but the case file was not found.
On 17 April 2002 the applicant complained to the prosecutor's office about his “administrative detention”. It appears from his complaint that he was shown a copy of the court's decision of 11 April 2002 but did not get access to the materials of the administrative case. He repeated his complaint on 29 April 2002.
On 17 April 2002 the applicant was released after serving his sentence. He found his car with a broken window; its audio system had been stolen.
(b) The Government's account
The Government insisted that the applicant had been arrested at 5 p.m. near the Tekstilschiki metro station for public disturbance, and that the police records were accurate. They produced a copy of the record of the arrest, which indicated that the applicant had been arrested at 5 p.m. on 10 April 2002 for “hooliganism”. They further produced a copy of a “record of administrative arrest” of 10 April 2002 which indicated that the applicant had been arrested under Article 158 of the Code of Administrative Offences. That document did not contain any information as to the particular circumstances of the offence: most of the sections of the record of the arrest had been left blank. They further produced a copy of a “description of administrative offence” of the same date, which indicated that the applicant had been arrested for using obscene language in a public place and for ignoring police orders. Both documents had been signed by the applicant.
They further claimed that after the hearing of 11 April 2002 the applicant had refused to sign a copy of the court decision: a note stating this had been made by the judge on the court's ruling. However, the applicant had signed the first page of the decision after the mention “[I] has been informed about [my] rights and obligations under Article 247 of the Code of Administrative Offences”. They produced a copy of the decision of 11 April 2002.
The relevant part of the reasoning of the decision reads as follows:
“On 10 April 2002 at 17:00 [the applicant], at the address ..., used obscene language, and did not respond to warnings. [The applicant] acknowledged his guilt in part. The facts are confirmed by the materials of the case and the statement by police officer K. Having regard to the personality [of the applicant] and circumstances of the case, sanction in the form of administrative arrest” is selected.”
The decision contained, inter alia, a typewritten entry which indicated that the decision indicated that it was not subject to any appeal.
2. The applicant's appeal against the decision of 11 April 2002 and supervisory review proceedings
On 21 April 2002 the applicant's lawyer drafted an appeal against the decision of 11 April 2002. He indicated, inter alia, that he had not received access to the case file or even a copy of the decision.
It follows from the following correspondence and the postal receipt produced by the applicant that the appeal was sent by registered mail on 22 April 2002. On 30 April 2002 the appeal reached the Lyublinskiy District Court, which was supposed to send it on to the Moscow City Court together with the case file.
However, on 7 May 2002 the Lyublinskiy District Court returned the appeal to the applicant's lawyer. In the cover letter the judge noted that the appeal had arrived at the District Court outside the time-limit established by law, and thus would not be forwarded to the Moscow City Court. The letter was sent to the address of the bar association to which the applicant's lawyer belonged. The applicant claims that his lawyer has never received this letter. According to the letter from the bar association, they have not received any letters from the Lyublinskiy District Court addressed to the applicant's lawyer.
On 15 May 2002 the Moscow City Prosecutor's Office sent the applicant a letter in reply to his complaint of 15 April 2002. It can be seen from that letter that the prosecutor's office requested the materials of the administrative proceedings from the Lyublinskiy District Court. However, the request remained unanswered. Therefore, the prosecutor's office was unable to review the lawfulness of the detention order of 11 April 2002.
On 11 July 2002 the applicant requested the Moscow City Court to restore the time-limit for lodging an appeal. He referred to the fact that, despite his request of 15 April 2002, he still did not have access to the materials of the case file and did not have a copy of the decision of 11 April 2002.
It is unclear what decision was taken in reply to this request. It can be seen from the letter of the Vice-President of the Moscow City Court of 31 May 2004 addressed to the applicant that the appeal submitted by his lawyer and dated 11 July 2002 has been left unexamined since “by its form and content it did not comply with the requirements for appeals against the court decisions in the administrative cases”. The case file with the applicant's request was returned to the Lyublino District Court.
On 20 February 2004 an inquiry into the applicant's arrest and detention was initiated. The investigator questioned the applicant and the policemen who took part in his arrest on 10 April 2002. The policemen confirmed that they had arrested the applicant for use of obscene language in a public place. The investigator concluded that the applicant's allegations concerning the circumstances of his arrest were unsubstantiated. On 1 March 2004 the investigation was discontinued.
On 20 February 2004 the Vice-President of the Moscow City Court informed the Supreme Court that the Moscow City Court had never received any appeal from the applicant or his lawyer against the decision of 11 April 2002.
On 21 April 2004 the Deputy Prosecutor of Moscow lodged an extraordinary appeal against the decision of 11 April 2002. On 17 July 2004 the Vice-President of the Moscow City Court examined the case by way of supervisory review. The Vice-President noted that the District Court had based its conclusions solely on the statements of the police officers, without referring to other possible witnesses to the incident. Officer K. was not a witness to the offence attributed to the applicant. Further, the court did not refer to any concrete information on the applicant's character or other circumstances of the case. The Vice-President concluded that the decision of 11 April 2002 was ill-founded and was incompatible with the Article 235 of the Code of Administrative Offences which required the judge to establish circumstances of the case in full and objectively. The Vice-President decided to quash the decision of 11 April 2002. The Vice-President discontinued further administrative proceedings against the applicant by virtue of “expiration of the prescription period”.
B. Relevant domestic law and practice
1. Administrative arrest and detention
The Code of Administrative Offences (the Code) of 1984 (Кодекс об административных правонарушениях РСФСР), as in force at the relevant time (until 1 July 2002), established the penalties for petty offences and the procedure for imposing the penalties. Pursuant to Article 158 of this Code, disturbance of public order (which included use of offensive language in public) was punishable with administrative detention up to fifteen days, to be ordered by a district court judge.
Under Article 242 § 3 of the Code when the police arrest a person for the disturbance of public order, that person may be detained until the moment of examination of his administrative case by the court.
Article 267 of the Code (as amended in March 2001 and 18 December 2001) provided that a court decision concerning an administrative offence could be appealed against to a higher court. Under Article 268 an appeal could be lodged within ten days from the delivery of the decision. The time-limit for appeal, if it was not met, could be restored by the competent court upon an application by the appellant.
2. Compensation for civil wrongs committed by State authorities
The Civil Code of the Russian Federation provides as follows:
Article 1070: Responsibility for
damage caused by unlawful acts of
investigative authorities,
prosecuting authorities and courts
“1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful administrative detention ... 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...”
The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeasor (that is, the State agency which decided to prosecute, detain and so on). 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 unlawful acts by law-enforcement agencies. For example, 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 confession. 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 suggest that the domestic courts regard criminal proceedings which ended with an acquittal to be “unlawful” as such. Therefore, if there was an acquittal, remand in custody would be “unlawful” even if all the substantive and procedural rules were complied with when it had been imposed.
COMPLAINTS
THE LAW
A. Unacknowledged detention (from 10 a.m. to 5 p.m. on 10 April 2002)
Under Article 5 § 1 of the Convention, cited above, the applicant complained that he had been de facto arrested at 10 a.m. on 10 April 2002 on suspicion of burglary. He had not been involved in any disorderly conduct; the police reports about the incident near the Tekstilschiki metro station had been fabricated. Article 5 § 1, in so far as relevant, 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:
(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.”
The Government denied that assertion. They claimed that the applicant was detained for the use of obscene language in a public place in the location and at the time indicated in the police reports. Further, they noted that it had been open to the applicant to complain about the alleged unacknowledged detention to the courts or to the prosecutor, which he had not done.
The Court notes that the materials of the case file contain only circumstantial evidence of the applicant's assertion. The fact that before, during and after his administrative detention the applicant was questioned in connection with the burglary does not prove that the applicant did not commit the impugned administrative offence. The fact that the applicant's car window had been broken allegedly during his administrative detention is also inconsequential. The applicant does not refer to any other evidence which would support his account. On the other hand, it appears that no official record was made of the applicant's detention before that time. According to the official reports, the applicant was arrested for public disturbance at 5 p.m. on the same day. An investigation conducted in February 2004 confirmed that these reports were accurate. There is no evidence that this investigation was procedurally flawed, biased or otherwise ineffective. In absence of any proof to the contrary, the Court accepts the Government's assertion that the applicant was arrested at 5 p.m. for disturbance of public order. The applicant's complaint about his de facto detention earlier than this time is therefore unsubstantiated. It is therefore not necessary to examine the Government's plea on non-exhaustion.
It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Notification of the reasons for the applicant's arrest
The applicant complained that he had not been informed of the reasons for his arrest. He referred to Article 5 § 2 of the Convention, which reads as follows:
“2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
The Government claimed that the applicant had been duly informed about the reasons for his arrest. They noted that he had signed the “description of administrative offence” which contained a succinct description of the offence attributed to him.
The applicant denied signing the description of administrative offence and of arrest. He claimed that his signature on both documents had been forged. In support he drew the Court's attention that these signatures were quite different from the signature on the decision of 11 April 2002, which was in his hand.
The Court reiterates that “whilst this information [about the reasons for the arrest] must be conveyed 'promptly' ..., it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features” (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182). Further, it is clear from the case-law of the Convention institutions that such information can be given either in writing or orally (see Lamy v. Belgium, 30 March 1989, § 31, Series A no. 151).
The Court does not find it sufficiently established that the applicant has not been shown the protocol of the administrative offence. Furthermore, the Court notes that the policemen who arrested him reported that the applicant had not responded to their warnings, and there is nothing, besides the applicant's words, to cast doubt on the veracity of their statements. In such circumstances the Court concludes that the applicant could have ascertained the reasons for his arrest from the warnings which had preceded it.
The Court considers that in such circumstances this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Detention from 5 p.m. on 10 April to 5 p.m. on 11 April 2002
The applicant further claimed that his detention in the police station from 5 p.m. on 10 April to 5 p.m. on 11 April 2002 was both unlawful and unreasonably long. He referred to Article 5 § 1 of the Convention, cited above, and § 3 thereof, which reads as follows:
“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.”
The Government claimed that during that period the applicant had been awaiting examination of the incident of 10 April 2002. He had been thus detained under Article 242 § 3 of the Code of Administrative Offences (see “Relevant domestic law” above). His case had been examined on the next day after his arrest, which was speedy enough.
The Court observes that on 11 April 2002 the applicant was found guilty in proceedings conducted under the Code of Administrative Offences which were regarded as “administrative” rather than “criminal” according to the Russian legal classification. He was sentenced to seven days' imprisonment for the disturbance of public order. The Court, having regard to the maximum fifteen-day penalty which the offence under Article 158 of the Code of Administrative Offences carried, and the seven-day term of detention which the applicant actually served, considers that the finding of guilt in the proceedings conducted on 11 April 2002 amounted to a “criminal” conviction within the meaning of Article 6 of the Convention (see, mutatis mutandis, Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 57, ECHR 2009 ...). The applicant's detention after his conviction by the judge should be examined under Article 5 § 1 (a) which deals with the detention “of a person after conviction by a competent court”. His detention by the police prior to the decision of the judge, should, on the other hand, be examined under Article 5 §§ 1 (c) and 3 of the Convention.
The Court reiterates its earlier finding about the circumstances of the applicant's arrest. Thus, there is no evidence that the applicant was arrested for other reasons than those stipulated in the official police reports. Therefore, the Court considers it established that the applicant was genuinely suspected by the police officers of having committed a minor offence. The police officers who arrested him were eyewitnesses to the incident; therefore the Court concludes that the applicant's arrest was based “on the reasonable suspicion that he had committed an offence”. Furthermore, the applicant was arrested and detained for the purpose of bringing him “before the competent legal authority on reasonable suspicion of having committed an offence”, and his detention had a lawful basis - Article 242 of the Code, referred to above, which gave the police the right to detain persons suspected of minor offences until the moment of examination of their case by the court. Therefore, his detention during that period was compatible with the requirements of Article 5 § 1 (c) of the Convention.
The Court further reiterates that Article 5 § 3 requires that an arrested person is brought “promptly” before the judge. The Court's case-law has not set any fixed time-limits to the meaning of “promptly”, preferring to decide each case on its facts (compare the case of Brogan and Others v. the United Kingdom, 29 November 1988, § 62, Series A no. 145-B, where periods of slightly over four days in detention without appearance before a judge were held to be in violation of Article 5 § 3, even in the special context of terrorist investigations, and the case of Medvedyev and Others v. France [GC], no. 3394/03, §§ 127 et seq., ECHR 2010 ..., where the period of almost two weeks was deemed acceptable by the Court due to the specific circumstances of the case: in that case the suspects were arrested on a ship on the high seas and transported to France). In Aquilina v. Malta [GC] (no. 25642/94, § 51, ECHR 1999 III) the Court found “that the applicant's appearance before a magistrate two days after his arrest could be regarded as “prompt” for the purposes of Article 5 § 3”.
Turning to the present case the Court notes that the applicant was arrested at 5 p.m., which is shortly before the end of the working day. The case was examined on the next day, 11 April 2002, late in the afternoon. The applicant did not refer to any fact which would show that the authorities had acted with an undue delay in processing his case. In sum, the period spent by the applicant in the hands of the police awaiting trial is not, in the Court's opinion, excessive.
It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
D. Detention from 5 p.m. on 11 April to 17 April 2002
Under Article 5 § 1 (a) of the Convention the applicant complained that his administrative detention had been arbitrary. This provision reads as follows:
“1. ... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court.”
He further complained that the proceedings in which the administrative detention had been imposed had not been fair within the meaning of Article 6 §§ 1 and 3 of the Convention, which, in so far as relevant, read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an ... tribunal ....
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
The applicant further complained about the refusal of the Moscow City court to examine his appeal against the decision of 11 April 2002. He referred in this respect to Article 6 § 1, cited above, and Article 5 § 4 of the Convention, which read as follows:
“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.”
He finally complained that he had been unable to receive compensation for the unlawful “administrative detention” even after the quashing of the decision of 11 April 2002 by way of supervisory review. He referred to Article 5 § 5 of the Convention and Article 13 thereof. Article 5 § 5 reads as follows:
“5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government claimed that the proceedings at issue had been “administrative” and, therefore, Article 6 was not applicable to them. They drew the Court's attention to the provisions of the Code of Administrative Offences which distinguished between criminal and administrative offences on the basis of the relative gravity of the former and pettiness of the latter.
Further, the Government admitted that the decision of 11 April 2002 was contrary to Article 5 § 1 of the Convention. However, the applicant had not appealed against his allegedly unlawful detention to a court within the ten-day time-limit established in Articles 266 and 268 of the Code of Administrative Offences. Neither did he request the court to reinstate the time-limit for bringing an appeal, as provided by Article 268 of the Code of Administrative Offences.
Finally, the decision imposing administrative arrest was quashed by the Deputy President of the Moscow City Court on 18 July 2004. The Government maintained that the decision of 18 July 2004 contained an acknowledgement of the breach of the applicant's rights under Article 5 § 1 of the Convention. Consequently, the applicant was entitled to bring proceedings claiming compensation under Article 1070 of the Civil Code. However, the applicant had failed to do so. The Government concluded that he had failed to exhaust domestic remedies.
The applicant argued that after his arrest his lawyers had been unable to get access to the materials of the administrative case. The applicant himself had not received a copy of the decision of 11 April 2002 until much later. He had in fact signed in the middle of the first page of the decision, thus confirming the accuracy of his personal data; however, he had not been shown the full text of the decision. He had never refused to receive a copy of it.
The applicant further noted that the decision of 11 April 2002 had indicated that it was not subject to any appeal. Nevertheless, his lawyer decided to appeal. The appeal against the decision of 11 April 2002 was sent to the court on Monday 22 April 2002, because the last day of the ten-day time-limit was a non-working day (Sunday). The right of appeal against first-instance court decisions imposing administrative detention had been introduced into the Code of Administrative Proceedings a few months before the applicant's arrest. The Code itself did not explain how to calculate time-limits when the last day of the time-limit is a non-working day. So, the applicant's lawyer decided to use analogous rules from the civil procedure law which established that if last day of the term for lodging an appeal is a non-working day, the appeal can still be lodged on the first following working day. The Criminal Procedure and Commercial Procedure Codes contained the same rule.
The Moscow City Court had never sent any letters, materials or decisions to the legal office where the applicant's lawyer worked. The applicant's lawyer had not been allowed to study the register of outgoing correspondence at the Moscow City Court. The Moscow City Court did not indicate the reason why it had declined to consider the applicant's lawyer's request to reinstate the time-limits for the appeal.
The applicant concluded that he was deprived of the opportunity to have the lawfulness of his detention tested by the court of appeal. Therefore, he was unable to exhaust domestic remedies, for reasons beyond his control.
As to the decision of the Deputy President of the Moscow Regional Court of 18 July 2004, taken by way of supervisory review, it had not acknowledged a violation of his rights and had not provided him with any compensation for the unlawful detention. That decision could not be regarded as “acquittal”, because the proceedings had been discontinued on formal grounds, namely the expiration of the time-limits.
The Court notes that on 17 July 2004 the Vice-President of the Moscow City Court quashed the decision of 11 April 2002 by way of supervisory review. The Vice-President in his decision (1) acknowledged that the proceedings of 11 April 2002 had been seriously flawed, (2) held that the District Court had failed to comply with Article 235 of the Code of Administrative Offences, and, for these reasons, (3) quashed the decision of the District Court. The Government claimed that the decision of 17 July 2004 created the opportunity for the applicant to seek pecuniary redress from the authorities, relying on Article 1070 of the Civil Code.
The Court considers that in its decision of 2004 the Vice-President of the Moscow City Court addressed in substance all the applicant's complaints under Article 5 § 1 (a) and 6 § 1 of the Convention concerning the proceedings of 11 April 2002. Thus, by virtue of that decision the applicant obtained a review of his original conviction which he had tried to challenge before the Moscow City Court in 2002.
At the same time, having acknowledged numerous violations of the applicant's rights, the supervisory-review court did not give any pecuniary redress to the applicant for the seven days' detention he had already served, as it apparently was not within the power of that court.
The Court has already held that, although a normal avenue of exhaustion in respect of the complaints under Article 5 § 1 is an application for release, “in certain circumstances a claim for pecuniary compensation for unlawful detention may be regarded as an effective remedy for the purposes of Article 5 of the Convention” (see Mikheyev v. Russia (dec.), no. 77617/01, 7 October 2004). This was said in the context of administrative detention, which is often so short that a civil-law remedy is the only option left to the applicant, as in the case at hand. In the circumstances of the present case the Court finds that a civil claim for compensation for seven days' administrative detention was a remedy to be used. The Court also reiterates that Article 1070 of the Civil Code establishes strict liability on the part of the authorities for the damage caused by the unlawful administrative detention. The Court notes in this respect its findings in Liu v. Russia, no. 42086/05, § 73, 6 December 2007, where it held as follows:
“ The Court notes that the Russian law of tort limits strict liability for unlawful detention to specific procedural forms of deprivation of liberty which include, in particular, ... administrative punishment, but exclude administrative arrest .... Since the first applicant was subject to administrative arrest, a mere finding of its unlawfulness would not be sufficient for an award of compensation; he would also have to prove that the State officials were at fault”.
The case at hand is different because the applicant's complaint was about his administrative detention (that is his punishment), not his arrest, as in the case of Liu. Therefore, a strict liability rule would a priori apply to the applicant's case.
As to the question whether the applicant's detention was “unlawful” for the purposes of Article 1070 of the Civil Code, the Court notes that by virtue of the decision of 17 July 2004 the applicant's administrative detention was quashed. In the Court's opinion, administrative detention becomes “unlawful” for the purposes of Article 1070 of the Civil Code if the decision imposing it was quashed, irrespective of the reasons for the quashing (see, mutatis mutandis, the Court's findings in the case of Trepashkin v. Russia (no. 36898/03, § 62, 19 July 2007, where it analysed the meaning of “unlawfulness” in Russian criminal law). Therefore, the quashing gave the applicant the right to receive compensation, which would be almost automatic, given that he did not need to prove that the authorities were at fault. That remedy was easily accessible and effective in principle. The applicant did not explain why it would not work in his case. By not pursuing that remedy the applicant failed to comply with the requirements of Article 35 § 1 of the Convention. The applicant's complaints under Articles 5 § 5 and 13 of the Convention are thus unsubstantiated.
Thus, the Court finds that the complaints concerning the administrative detention imposed on 11 April 2002 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. It follows that the complaints that the applicant did not have the opportunity to challenge that detention or obtain compensation for it are manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
Registrar President