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Постановление Европейского суда по правам человека от 23.04.2009 «Дело Московец (Moskovets) против России» [англ.]





sent at the hearing. He further submitted that his detention in the period from 2 December to 30 December 2002 had also been unlawful in the absence of any valid decision authorising his detention in the relevant period.

B. The Court's assessment

1. Admissibility

48. The Court observes at the outset that a part of the applicant's complaint concerning the lawfulness of all detention orders refers to a period of pre-trial detention which ended more than six months before he lodged the application with the Court on 2 April 2003. The most recent period of detention that the Court may examine commenced on 1 July 2002. The Court therefore considers that the part of the applicant's complaint concerning the detention orders issued before 1 July 2002 has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Vladimir Solovyev v. Russia, No. 2708/02, § 83, 24 May 2007).
49. The Court notes the Government's argument about the applicant's having lost his status as a victim and his failure to exhaust domestic remedies in so far as his detention in the period from 1 July to 1 October 2002 is concerned.
50. As regards the applicant's victim status, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive the applicant of his status as a "victim" unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III, and Dalban v. Romania [GC], No. 28114/95, § 44, ECHR 1999-VI). In the present case, however, although the domestic courts acknowledged the unlawfulness of the applicant's detention from 1 July to 1 October 2002 by quashing the extension order of 1 July 2002, by the time the quashing took place, on 11 November 2002, the applicant had already spent three months in detention as a result of the unlawful order, and no compensation was offered by the authorities in this respect. The Court therefore concludes that the applicant can still claim to be a "victim" within the meaning of Article 34 of the Convention.
51. In so far as the argument about the applicant's failure to apply for compensation is concerned, the Court reiterates that the right not to be deprived of one's liberty "save in accordance with a procedure prescribed by law" is not the same as the right to receive compensation for detention. Paragraph 1 of Article 5 of the Convention covers the former and paragraph 5 of Article 5 the latter. The court invited to rule on an action for damages caused by unlawful detention examines the matter after the events and therefore does not have jurisdiction to order release if the detention is unlawful, as Article 5 § 4 requires it should (see Weeks v. the United Kingdom, 2 March 1987, § 61, Series A No. 114). A civil action for damages has accordingly no bearing on the question of exhaustion of domestic remedies in respect of the applicant's complaint under Article 5 § 1 (see Belchev v. Bulgaria (dec.), No. 39270/98, 6 February 2003; Nakhmanovich v. Russia (dec.), No. 55669/00, 28 October 2004; and, most recently, Shcheglyuk v. Russia, No. 7649/02, § 34, 14 December 2006). The Government's objection must therefore be dismissed.
52. The Court notes, therefore, that the remainder of the complaint 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.

2. Merits

(a) General principles
53. The Court reiterates that the expressions "lawful" and "in accordance with a procedure prescribed by law" in Article 5 § 1 essentially re



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