CASE OF SHAKIRZYANOV v. RUSSIA
(Application no. 50650/16)
24 July 2018
This judgment is final but it may be subject to editorial revision.
In the case of Shakirzyanov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 3 July 2018,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 50650/16) 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 Rustam Maykarimovich Shakirzyanov (“the applicant”), on 15 August 2016.
2. 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.
3. On 3 April 2017 the complaint concerning the right to compensation for a period of unlawful detention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1967 and lives in Kazan.
5. On 4 June 2002 he was convicted of disorderly acts and given a suspended two-year custodial sentence conditional on two years’ probation. On 14 November 2003 the court replaced the suspended sentence with an unconditional one because the applicant had failed to report to the probation authorities. On 16 December 2003 the Supreme Court of the Tatarstan Republic upheld that decision on appeal. The applicant subsequently served the full two years of the custodial sentence.
6. On 13 July 2016 the Presidium of the Supreme Court of the Tatarstan Republic quashed the decision of 14 November 2003 and the appeal decision of 16 December 2003, noting that the offence of disorderly acts had been decriminalised on 11 December 2003 and that the original sentence had been unenforceable. It held however that the applicant was not eligible for compensation for the unlawful detention because he had been initially found guilty and because the “right to the rehabilitation” did not cover the situations of ex post facto decriminalisation.
II. RELEVANT DOMESTIC LAW
7. The relevant provisions of the domestic law are summarised in Stadnik v. Russia (no. 41509/06, §§ 13-14, 13 June 2017) and Abashev v. Russia (no. 9096/09, §§ 20-21, 27 June 2013).
I. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
8. The applicant complained that he did not have an enforceable right to compensation for a period of unlawful detention in breach of Article 5 § 5 of the Convention which reads as follows:
“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.”
9. The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
10. The Government submitted that it was not the Court’s task to call into question the findings of the domestic courts. The Presidium of the Supreme Court had explained in sufficient detail why the applicant had not had a right to compensation within the meaning of Article 5 § 5.
11. The applicant submitted that, as a result of a judicial error, he had spent two years in custody instead of paying a fine.
12. The Court reiterates that the right to compensation under Article 5 § 5 of the Convention arises if a breach of one of its other four paragraphs has been established, directly or in substance, either by the Court or by the domestic courts (see, among many other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012; Svetoslav Dimitrov v. Bulgaria, no. 55861/00, § 76, 7 February 2008; and Çağdaş Şahin v. Turkey, no. 28137/02, § 34, 11 April 2006).
13. In the instant case the Presidium of the Supreme Court established that the custodial sentence had no longer been enforceable by the time the applicant had begun serving it. That he had been required to serve it in full amounts to a gross and obvious irregularity indicating that the applicant had been deprived of his liberty in a manner that was not in accordance with the substantive and procedural requirements of the domestic law, that is, in breach of paragraph 1 of Article 5. It follows that Article 5 § 5 is applicable in the instant case.
14. The Court reiterates that the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty. This requirement goes hand in hand with the principle that the Convention must guarantee not rights that are theoretical or illusory but rights that are practical and effective. It follows that compensation for detention imposed in breach of the provisions of Article 5 must be not only theoretically available but also accessible in practice to the individual concerned (see Abashev, cited above, § 39, with further references).
15. In Abashev, the Court found that the Russian law in its present state did not provide for an effective possibility to obtain compensation for unlawful detention if the applicant was found ultimately guilty in criminal proceedings (ibid., §§ 30 and 40-42). The present case is another example of this unacceptable situation. The applicant was denied the “right to rehabilitation” on the ground that it only accrued to those who have been cleared of the charges.
16. It follows that the manner in which the Russian law is formulated and applied precluded the applicant from obtaining compensation for the detention that was imposed in breach of Article 5 § 1 of the Convention. Having rejected the applicant’s compensation claim on formal grounds, the Russian courts did not interpret or apply the domestic law in the spirit of Article 5 of the Convention (see Abashev, cited above, § 42, and Houtman and Meeus v. Belgium, no. 22945/07, §§ 45-47, 17 March 2009).
17. The applicant did not therefore have an enforceable right to compensation as is required under Article 5 § 5 of the Convention. There has accordingly been a violation of this provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
18. 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.”
19. The applicant claimed 1,000,000 euros (EUR) in respect of non-pecuniary damage.
20. The Government submitted that Article 41 was to be applied in accordance with the established case-law.
21. The Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
22. 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 § 5 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand 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 24 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Alena
Deputy Registrar President