Постановление Европейского суда по правам человека от 28.10.2010 «Дело Борис Попов (Boris Popov) против России» [англ.]

the Court is not satisfied that the applicant was deprived of his liberty "in accordance with a procedure prescribed by law".
77. There has therefore been a violation of Article 5 § 1 of the Convention.

III. Alleged violation of Article 5 § 5 of the Convention

78. The applicant also complained that the refusal of compensation for his unlawful arrest and detention from 6 to 8 November 2001 violated Article 5 § 5, 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."

A. Admissibility

79. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1 - 4. The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see N.C. v. Italy [GC], No. 24952/94, § 49, ECHR 2002-X; Pantea v. Romania, No. 33343/96, § 262, ECHR 2003-VI; and Fedotov v. Russia, No. 5140/02, § 83, 25 October 2005).
80. The Court notes that it has found a violation of Article 5 § 1 of the Convention. It follows that the complaint under Article 5 § 5 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

81. The Government submitted that the applicant had lodged a civil action for compensation in respect of the non-pecuniary damage caused by his allegedly unlawful arrest and detention. The national courts had examined the case and concluded that the deprivation of liberty had been lawful. The applicant had been involved in the court proceedings. Besides, the applicant should have sued Mr A. and sought his criminal prosecution for false accusation.
82. The applicant maintained his complaint.
83. The Court observes, firstly, that the Government did not submit any argument as to how a civil or criminal action against A. would have enforced the applicant's right to compensation within the meaning of Article 5 § 5 of the Convention.
84. Secondly, in the light of the information before it the Court notes that compensation for the damage sustained as a result of arrest and detention could be awarded if such measures were found to be unlawful under Russian law (see paragraph 34 above; see also Shilyayev v. Russia, No. 9647/02, § 21, 6 October 2005, and Nolan and K. v. Russia, No. 2512/04, § 104, 12 February 2009). Indeed, the applicant tried to obtain compensation through this domestic remedy. It was not suggested that he failed to comply with any formal or procedural requirements (see Francisco v. France (dec.), No. 38945/97, 29 August 2000; see also, mutatis mutandis, T.P. and K.M. v. the United Kingdom [GC], No. 28945/95, §§ 107 - 110, ECHR 2001-V (extracts), and A.D. and O.D. v. the United Kingdom, No. 28680/06, §§ 102 - 104, 16 March 2010). The national courts at two levels of jurisdiction examined the claims on the merits but found that the applicant's arrest and detention had been lawful as a matter of Russian law and, as noted by the appeal court, under Article 5 § 1 (c) of the Convention (see paragraph 15 above).
85. The Court reiterates in that connection that the national authorities, including courts, are expected to interpret and apply national law in the light of the Convention, as interpreted by the Court. Having examined the applicant's grievance under Article 5 § 1 of the Convention, the Court has found, inter alia, that the unavailability of the record was imputable to the national authorities in the



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