LOBANOV proti Rusku

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16159/03
by Igor Ivanovich LOBANOV
against Russia

The European Court of Human Rights (First Section), sitting on 28 September 2006 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 6 May 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

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 Igor Ivanovich Lobanov, is a Russian national who was born in 1965 and lives in Moscow. He is represented before the Court by Ms K.A. Moskalenko, a lawyer with the Centre of Assistance to International Protection in Moscow. The Russian Government (“the Government”) are represented by Mr P.A. Laptev, 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.

In a judgment of 12 October 1998 by the Shymkent Town Court of the Republic of Kazakhstan, the applicant was convicted of storing and transporting drugs and was sentenced to five years’ imprisonment. He started to serve his sentence in Kazakhstan.

On 24 January 2000 the Prosecutor General’s Office of the Russian Federation granted the applicant’s request to be transferred to Russia, his country of citizenship and his mother’s place of residence, to serve the rest of his sentence.

On 3 February 2000 the applicant’s request to be transferred to Russia was granted by the Kazakhstan Prosecutor General’s Office.

Following an agreement with the Kazakhstan authorities, the applicant was transferred to Russia on 29 February 2000.

Following the applicant’s request for supervisory review of his case, the Presidium of the Yuzhno-Kazakhstanskiy Regional Court, in a decision of 16 March 2000, amended the judgment of 12 October 1998 in the applicant’s case, reclassifying the offence and reducing the sentence. By the same decision the court applied the 1999 Amnesty Act, discharged the applicant from serving the remainder of his sentence and ordered as follows:

“The convicted prisoner Lobanov is to be released from custody forthwith.”

On 29 March 2000 the applicant arrived at penitentiary establishment YaK‑7/8 in the town of Penza.

According to the applicant, after he had learned of the court decision of 16 March 2000 he informed, on 18 April 2000, the authorities in the detention facility and requested them to expedite his release.

According to the Government, on 10 May 2000 the prosecutor’s office of the Yuzhno-Kazakhstanskiy Region of Kazakhstan sent a copy of the court decision of 16 March 2000, with covering letter no. 11у-2-3-1404, to the Information Centre of the Home Affairs Department of the Penza Region of Russia, which received it on 18 May 2000. It appears from a copy of page 80 of the incoming mail register of the Information Centre of the Penza Region Home Affairs Department, submitted by the Government, that the date of receipt of the document was 19 May.

According to letter no. 36-8-52-05 of 19 May 2005 from the Yuzhno‑Kazakhstanskiy regional prosecutor’s office, addressed to the applicant’s lawyer, the competent authorities of Russia had failed in good time to inform the competent authorities in Kazakhstan of the applicant’s location in Russia, and the Legal Statistics and Information Centre at the Yuzhno‑Kazakhstanskiy regional prosecutor’s office carried out an inquiry. As a result of the inquiry it established that the applicant was serving his sentence in establishment ITK no. 8 of the Penza Region of Russia. On 10 May 2000 a copy of the court decision of 16 March 2000 in respect of the applicant was sent to that establishment for execution. The letter from the Yuzhno-Kazakhstanskiy regional prosecutor’s office stated that the Yuzhno-Kazakhstanskiy regional law-enforcement bodies had not been at fault in the delay in executing the court decision of 16 March 2000. The letter also stated that the decision of 3 February 2000 by the Kazakhstan Prosecutor General’s Office allowing the applicant’s request for his transfer to Russia to serve the remainder of his sentence had been based on the Convention on the Transfer of Convicted Persons of 6 March 1998.

On 23 May 2000 the Information Centre of the Penza Region Home Affairs Department, having established the applicant’s location, forwarded the Kazakhstan court’s decision to penitentiary establishment YaK‑7/8, which received it on 26 May 2000 and forwarded it on the same day to the Prosecutor General’s Office of the Russian Federation.

The Prosecutor General’s Office received the decision on 7 June 2000 and on 13 June 2000 a deputy Prosecutor General of the Russian Federation ordered that the applicant be discharged from serving the remainder of his sentence. The next day the prosecutor’s decision was sent to the Ministry of Justice of the Russian Federation for execution.

On 6 July 2000 it was received by the Ministry of Justice Department for Execution of Sentences for the Penza Region. On 10 July 2000 the decision reached penitentiary establishment YaK-7/8 and the applicant was released on the same day.

On an unspecified date the applicant brought proceedings against the Ministry of Justice of Russia and the Ministry of Finance of Russia seeking compensation in respect of pecuniary and non-pecuniary damage sustained as a result of his allegedly unlawful and unfounded detention for three months and ten days after the decision of the Yuzhno-Kazakhstanskiy Regional Court. By decision of the Taganskiy District Court of Moscow of 9 October 2001 the applicant’s action was dismissed. On 30 November 2001 the Moscow City Court quashed the judgment on appeal and remitted the case to the court of first instance for a fresh examination.

On 15 August 2002 the Taganskiy District Court of Moscow examined the case anew. It established what had been done by the Russian authorities, and when, in respect of the Kazakhstan court’s decision ordering the applicant’s release, from the time the decision had been received by penitentiary establishment YaK-7/8 on 26 May 2000.

The District Court noted that the Convention [of the Commonwealth of Independent States of 6 March 1998] on the Transfer of Convicted Persons for the Further Serving of their Sentences was not applicable to the applicant’s case as it had not come into force in respect of Russia at the time of delivery of the Kazakhstan court’s decision or the time of the applicant’s release.

The District Court found that the order for the applicant’s release issued by the Prosecutor General’s Office on 13 June 2000 had been within its competence and in accordance with the legislation in force at the material time, notably the Decree of the Presidium of the Supreme Council of the USSR of 10 August 1979 on the procedure for execution of the obligations arising for the USSR out of the Convention on the Transfer of Convicted Persons to Serve their Sentences in a State of their Citizenship and the instructions of 25 October 1979 on enforcement of the Decree. According to the Decree and the instructions, the authority responsible for ordering execution of the decision of the Kazakhstan court in respect of the applicant had been the Prosecutor General’s Office. The court held that the decision of the Prosecutor General’s Office discharging the applicant from serving the remainder of his sentence had been lawful.

Having found no fault on the part of the defendant authorities, the District Court rejected the applicant’s claim for compensation in respect of non-pecuniary damage. Nor did it find grounds for granting the applicant’s claim for compensation in respect of pecuniary damage based on loss of employment income. It noted that the applicant, who had been employed six months after his release, had failed to prove that he had been unable to find employment earlier through the fault of the defendant authorities. In rejecting the applicant’s claims the court relied on Articles 151, 1069-1071 and 1099 of the Civil Code.

The applicant appealed. On 26 December 2002 the Moscow City Court upheld the judgment. It noted, in particular, that the District Court had established no unjustified delay on the part of the authorities in executing the court decision ordering the applicant’s release. There had thus been no fault on the part of the authorities, and the applicant’s claims had been rightly dismissed.

On 10 April 2003 the applicant lodged an application for supervisory review of the case. On 13 May 2003 the Moscow City Court rejected his application.

B. Relevant domestic law

Article 151 of the Civil Code of the Russian Federation provides that a court may award compensation for non-pecuniary damage (physical or mental suffering) to a person who sustained such damage as a result of a violation of his or her personal non-pecuniary rights. In order to determine the amount of compensation for non-pecuniary damage the court must have regard to the extent of fault on the part of the perpetrator and the intensity of mental anguish or physical suffering caused, bearing in mind the individual characteristics of the victim.

Articles 1069 and 1070 of the Civil Code read as follows:

Article 1069. Liability for harm caused by State bodies, local self-government bodies and their officials

Damage caused to an individual or a legal entity as a result of an unlawful act (failure to act) of State and local self-government bodies or of their officials, including as a result of the issuance of an act of a State or self-government body which is contrary to the law or any other legal act, shall be subject to compensation. The damage shall be compensated at the expense, respectively, of the treasury of the Russian Federation, the treasury of the subject of the Russian Federation or the treasury of the municipal authority.

Article 1070. Liability for harm caused by unlawful actions of agencies of inquiry and preliminary investigation, prosecutor’s offices and the courts

1. Damage caused to an individual as a result of his or her unlawful conviction, unlawful criminal prosecution, unlawful application, as a measure of restraint, of remand in custody or of a written undertaking not to leave a specified place and unlawful imposition of an administrative penalty in the form of arrest or corrective labour, shall be compensated in full at the expense of the treasury of the Russian Federation and in certain cases, stipulated by law, at the expense of the treasury of the subject of the Russian Federation or of the municipal authority, regardless of the fault of the officials of agencies of inquiry or preliminary investigation, prosecutor’s offices or courts in the procedure established by law.

2. Damage caused to an individual or a legal entity as a result of the unlawful activity of agencies of inquiry or preliminary investigation or prosecutor’s offices, which has not entailed the consequences specified in paragraph 1 of this Article, shall be compensated on the grounds and according to the procedure provided for by Article 1069 of this Code...

Article 1071 of the Civil Code authorises certain State financial authorities to act on behalf of the respective treasury in cases where the State has been found liable for damages.

Article 1099 of the Civil Code states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage.

COMPLAINTS

1. The applicant complained under Article 5 § 1 of the Convention that his detention in Russia for one hundred and sixteen days after the remission of his sentence by the Kazakhstan court had been unlawful and unfounded. He also complained that the detention in question had breached other rights guaranteed by the Convention including the right not to be held in slavery or servitude, the right to liberty of movement and the right to respect for his family life.

2. The applicant further complained under Article 5 § 5 of the Convention of the Russian domestic courts’ denial of his right to compensation for the damage sustained as a result of that detention.

THE LAW

1. The applicant complained under Article 5 § 1 of the Convention that the Russian authorities had failed to ensure his immediate release from detention on the basis of the decision of the Presidium of the Yuzhno-Kazakhstanskiy Regional Court of 16 March 2000. He further complained that his detention in Russia after the remission of his sentence by the Kazakhstan court also entailed a violation of his right not to be held in slavery or servitude, his right to liberty of movement and his right to respect for his family life.

The Court considers that these complaints fall to be examined under Article 5 § 1, which reads:

“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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

The Government submitted that the authorities of the Russian Federation, namely the Information Centre of the Internal Affairs Department of the Penza Region, had received a copy of the decision of the Presidium of the Yuzhno-Kazakhstanskiy Regional Court of the Republic of Kazakhstan on 18 May 2000, sixty-three days after that decision had been delivered. The Government noted that the delay in executing the decision of the Yuzhno‑Kazakhstanskiy Regional Court had been caused by the fact that the authorities in Kazakhstan had forwarded the documents to a Russian State agency which had no powers in respect of issues concerning the release of persons sentenced in foreign States and transferred to Russia to serve their sentences. The time taken to release the applicant would have been much shorter had the documents been sent from Kazakhstan directly to the Prosecutor General’s Office.

The Government further submitted that the complaint was inadmissible because the applicant had lodged his complaint with the Court on 6 May 2003, more than six months after 10 July 2000, when he had been released.

The applicant contested the Government’s submissions. Arguing that it was highly unlikely that the Kazakhstan authorities would have failed to forward the court decision immediately, and that they would have forwarded the court decision to the Information Centre of the Internal Affairs Department of the Penza Region, he asserted that the Government had failed to inform the Court which Russian authority had, in reality, first received the Kazakhstan court decision, and when it had been received. Hence, the Government had not submitted the stamped envelope in which the court decision had been sent or the relevant covering letter. The applicant further alleged that the Information Centre of the Internal Affairs Department of the Penza Region had in fact received a different document and not the court decision of 16 March 2000.

The applicant argued that Russia had failed to act promptly in releasing him. The delay had been unjustified. Even after 18 May 2000 a further fifty‑three days had elapsed before his release.

As regards the Government’s view concerning the applicant’s compliance with the six-month rule, the applicant submitted that he had availed himself of the domestic remedies. The date of the final domestic decision was 26 December 2002 (the decision of the Moscow City Court upholding the judgment of 15 August 2002). The date of his appeal to the Court was 6 May 2003, that is, less than six months later. The Government’s contention was therefore unfounded.

The applicant submitted that his complaint met the admissibility criteria and that there had been a violation of Article 5 § 1 of the Convention in that he had been unlawfully detained for four months in spite of the court decision ordering his immediate release.

The applicant noted that after he had learned of the court decision of 16 March 2000 he had, on 18 April 2000, informed the authorities in the detention facility. However, the authorities had not sent the inquiry to the Prosecutor General’s Office until 26 May 2000 at the earliest. Between 18 April and 10 July 2000 the applicant had repeatedly requested the authorities to expedite his release.

The applicant received a letter from the prosecutor’s office of the Yuzhno-Kazakhstanskiy Region of Kazakhstan dated 19 May 2005, stating that the decision of 3 February 2000 by the Kazakhstan Prosecutor General’s Office allowing the applicant’s request for his transfer to Russia to serve the remainder of his sentence had been based on the Convention on the Transfer of Convicted Persons of 6 March 1998.

The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision or, where no domestic remedy is available, from the act complained of (see Demir v. Turkey, no. 22280/93, Commission decision of 9 January 1995). It notes that the parties disagreed as to when the six-month period commenced. The Government submitted that the six months should run from 10 July 2000, the date of the applicant’s release from detention, that is, when the situation complained of came to an end. The applicant argued that the six months should run from 26 December 2002, the date of the decision of the Moscow City Court. The Court notes that in the proceedings which ended in the latter decision the domestic courts examined the applicant’s claims for damages arising out of his allegedly unlawful and unfounded detention in Russia after the Kazakhstan court’s decision for his release. They rejected his claim in respect of non-pecuniary damage on the basis of their finding that the applicant’s release following the Kazakhstan court’s decision had to be ordered by the Prosecutor General’s Office, that the latter’s decision ordering the applicant’s release had been lawful and that there had been no unjustified delay or any other fault on the part of the authorities in respect of the execution of the Kazakhstan court’s decision. The domestic courts relied on Articles 151, 1069-1071 and 1099 of the Civil Code, according to which it was a pre-condition for granting a claim for compensation in respect of damage caused to an individual as a result of acts (or failure to act) by State agencies or their officials that those acts (failure to act) had been unlawful. Accordingly, the domestic courts’ task in those proceedings was to determine whether the applicant’s detention during the period between the Kazakhstan court’s decision and the applicant’s release had been lawful, and to verify in this respect whether the Russian authorities had acted properly and in accordance with the law in executing the Kazakhstan court’s decision. That being so, the Court finds that the proceedings the applicant brought before the Russian courts seeking compensation should be regarded as a domestic remedy, the decision of which constituted the “final” decision within the meaning of Article 35 § 1. The decision in question was delivered by the Moscow City Court on 26 December 2002, the date from which the six months should be calculated. The application was lodged on 6 May 2003 and was therefore introduced within the time-limit established by Article 35 § 1 of the Convention. Consequently, the Government’s objection concerning the applicant’s failure to comply with the six-month rule should be dismissed.

As to the substance of the applicant’s complaint, the Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant complained that the domestic courts had denied his right to compensation for non-pecuniary and pecuniary damage sustained as a result of his detention. He relied on Article 5 § 5, which reads:

“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.”

The Government submitted that in dismissing the applicant’s claim for compensation the Taganskiy District Court of Moscow had considered that, in accordance with Article 14 of the Convention on the Transfer of Convicted Persons to Serve their Sentences in States of their Citizenship, signed in Berlin on 19 May 1978, a copy of a decision by which a judgment was quashed and criminal proceedings terminated was to be sent forthwith for execution to a competent agency of the State to which the convicted person had been transferred. Pursuant to paragraph 2 of Decree no. 563-X of the Presidium of the Supreme Council of the USSR of 10 August 1979, in force at the time of the events in the applicant’s case, the competent agency in this case had been the Office of the Prosecutor of the USSR and, thereafter, the Prosecutor General’s Office of the Russian Federation. Under paragraph 13 of the Decree, the Prosecutor General’s Office issued orders as to the execution of decisions delivered in foreign States quashing judgments and terminating criminal proceedings or applying an amnesty in respect of persons transferred to Russia to serve their sentences.

In view of those findings by the Taganskiy District Court of Moscow, its decision upholding the lawfulness of the actions of the Prosecutor General’s Office concerning the release of the applicant, finding that there had been no unjustified delay in the execution of the court decision in respect of the applicant and dismissing the applicant’s claims, had been well-founded.

The applicant contested the Government’s arguments. He submitted that he had been unlawfully detained for 116 days, from 16 March to 10 July 2000. The domestic courts’ decisions dismissing his claims for compensation had been delivered without regard for the obvious and established facts. Therefore he had had no effective and enforceable right to compensation.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis
Registrar President