Постановление Европейского суда по правам человека от 17.06.2010 «Дело Щербаков (Shcherbakov) против России» [англ.]

, unlawful application of measures of restraint, such as detention on remand or an undertaking not to leave a place of residence, unlawful imposition of an administrative punishment, such as arrest or correctional works, shall be compensated in full in accordance with the procedure prescribed by law by the Treasury of the Russian Federation, and, where the law so provides, by the treasury of the subject of the Federation or the municipal treasury, irrespective of whether they occurred as a result of the misconduct of investigating officials, the prosecutor's office or the courts.
Under Section 151 of the Civil Code, if a citizen sustained non-pecuniary damage (physical or psychological suffering) as a result of actions violating his or her non-pecuniary rights or interests, and also where it is expressly provided for by law, the court may order the wrongdoer to pay him monetary compensation.
In assessing the amount of the compensation for non-pecuniary damage, the court takes into account the degree of the wrongdoer's fault and all other relevant circumstances. The court must also take account of the intensity of physical and moral suffering relating to personal characteristics of the person who sustained the damage.
Under Section 1100 of the Civil Code, compensation of non-pecuniary damage to the citizen is effected irrespective of the wrongdoer's fault if the damage was inflicted by [the citizen's] unlawful conviction, prosecution, unlawful application of a measure of restraint, such as detention or an undertaking not to leave their place of residence, unlawful imposition of an administrative punishment in the form of arrest or correctional service and dissemination of information damaging to the [citizen's] reputation.
Section 1101 of the Civil Code provides that in assessing the amount of compensation to be awarded, the court must take into account the nature of the physical and psychological suffering inflicted upon the victim, and also the degree of fault on the part of the wrongdoer in cases of fault-based liability.
The court assesses the intensity of the physical and psychological suffering on the basis of the factual circumstances in which the harm was caused and also the personal characteristics of the victim.
According to the record of arrest issued on 23 May 1995 and the decision of 19 June 1995 remanding [the applicant] in custody, the plaintiff was placed in custody.
The plaintiff's place of residence was searched on 23 May 1995.
By a decision of 26 July 1996 the prosecutor's office of the Tula Region charged the plaintiff with participation in a criminal gang, robbery, concerted and aggravated murder, abduction, bribery and unlawful possession of arms.
By a decision of 15 July 2002 the Tula Regional Court terminated the criminal case against [Mr] Shcherbakov... with reference to Section 24 § 1 (2) of the Code of Criminal Procedure (lack of corpus delicti). By the same decision the court lifted [Mr] Shcherbakov's measure of restraint, namely remand in custody, and recognised his right to rehabilitation.
The court has established beyond doubt that [Mr] Shcherbakov's unlawful prosecution and detention had caused him mental and emotional suffering, which is to be compensated by the Treasury of the Russian Federation irrespective of the fault of the investigation and prosecution officials and in accordance with the procedure established by law. Examining the respondent's argument that the applicant had failed to prove the alleged non-pecuniary damage, the court considers that the fact of [the applicant's] criminal prosecution and lengthy detention had caused him mental and emotional suffering. The parties did not contest the unlawfulness of the plaintiff's prosecution and detention, which is also confirmed by the Tula Regional Court decision to discontinue th

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