The non-legislative provision for awarding damages for non-pecuniary damage for illegal detention violated the right of redress under Article 5 par. 5 of the ECHR
JUDGMENT
Norik Poghosyan v. Armenia 22.10.2020 (app. no. 63106/12)
SUMMARY
Lack of legislation for compensation for non-pecuniary damage due to illegal detention. Right of redress.
The applicant was sentenced to 3 years in prison for drug possession, which he served normally. The appellate court overturned the conviction and ruled that his detention was illegal.
Claim for damages. The domestic civil courts rejected part of his claim for pecuniary compensation for the non-pecuniary damage suffered as a result of the unlawful detention on the ground that it was not provided for in domestic law.
In the present case, the ECtHR found that although the applicant’s detention was found to be unlawful, he could not receive compensation for the non-pecuniary damage he had suffered as a result of his imprisonment for three years.
The ECtHR ruled that the non-availability of compensation for non-pecuniary damage due to unrelated predictability in national law violated the right to redress under Article 5 § 5 of the Convention and awarded a sum of EUR 6,000 for non-pecuniary damage
PROVISION
Article 5§5
PRINCIPAL FACTS
The applicant, Artashes Antonyan, is an Armenian national who was born in 1954 and lives in Kajaran
(Armenia).
The case concerned the applicant’s complaint about the fine imposed on him for a breach of
customs regulations.
On 30 July 2008, following an inspection of the company for whom the applicant was working, the
customs authorities issued a document stating that he had filed inaccurate declarations as regards
the price of certain imported goods. He was as a result fined in administrative proceedings initiated
against him on 17 October 2008.
He contested the decision in the administrative courts, arguing that it was in breach of Article 37 of
the Code of Administrative Offences (CAO) which provided that a penalty for a breach of customs
regulations had to be imposed within two months of the date on which the offence had been
discovered. As the inspection had been carried out in July 2008, the deadline for imposing the fine
had expired at the end of September 2008.
The Administrative Court dismissed his claim in August 2009, ruling that his offence had been
discovered on 17 October 2008, namely the date when the record of the breach of customs
regulations had been drawn up. The applicant’s appeal on points of law was subsequently declared
inadmissible for lack of merit.
In the enforcement proceedings the applicant’s employer withheld 50% of his salary from June 2011
to April 2012, and several flats he owned were seized and sold by the authorities.
Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention on
Human Rights, the applicant complained that the imposition of the fine had been unlawful, in
particular because it had been in breach of the two-month prescription period set down in the CAO.
THE DECISION OF THE COURT…
The applicant argued that Article 5 § 5 was applicable since his detention was considered “unlawful” under domestic law as a result of his acquittal. The Court reiterates in this respect that the Convention organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law . Similarly, a period of detention is, in principle, “lawful” if it is based on a court order. A subsequent finding of a superior domestic court that a lower court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. Furthermore, a conviction that has been imposed by a judgment following a breach of substantive provisions of domestic law in criminal proceedings does not automatically render the detention by virtue of that judgment unlawful . The Court has, however, held that mere mistakes are to be distinguished from a flagrant denial of justice undermining not only the fairness of a person’s trial, but also the lawfulness of the ensuing detention and that, as a consequence, in such circumstances Article 5 § 5 will only apply where the detention followed a conviction imposed in manifestly unfair proceedings amounting to a flagrant denial of justice automatically implying a breach of Article 5 § 1 of the Convention.
The Court observes that where domestic law provides that the accused shall be, in the event of a final acquittal, entitled to compensation for his detention in the course of the preceding proceedings, such an “automatic” right to compensation cannot in itself be taken to imply that the detention in question were to be characterised as “unlawful”. Moreover, while it cannot be said that Article 5 § 5 of the Convention imposes such an “automatic” right to compensation solely on the grounds that the criminal proceedings have been concluded by an acquittal, the choice of legal solutions to comply with the requirements of that provision remain a policy choice to be determined by domestic law. In this regard, the Court cannot but note that under Armenian law not only was the applicant entitled to compensation as a consequence of his acquittal but his detention was also considered “unlawful” within the meaning of domestic law.
In their judgments given in the applicant’s case the Lori Regional Court and the Civil Court of Appeal relied on the above-mentioned provisions, as well as the Court of Cassation’s decision of 1 July 2011, and awarded the applicant compensation for the pecuniary damage suffered as a result of his “unlawful” detention, referring to the entire period spent by him in detention, namely from 17 October 2008 to 17 April 2010.
The Court reiterates in this connection that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law . Furthermore, on the question whether detention is “lawful”, including whether it complies with “a procedure prescribed by law”, the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof, and disregard of that law entails a breach of the Convention. Thus, in view of the fact that the applicant’s detention was rendered unlawful within the meaning of domestic law following his acquittal and considered as such by the domestic courts, the Court concludes that, in the particular circumstances of the case, a breach of the guarantees of Article 5 § 1 has been established in substance at the domestic level and that, consequently, Article 5 § 5 is applicable to the applicant’s case.
In the present case, however, the applicant, had no possibility of obtaining compensation for damage of a non-pecuniary nature in respect of his unlawful detention, since such a type of compensation was not provided for under domestic law. Thus, his claim for compensation for non-pecuniary damage was dismissed by the domestic courts on the grounds that Armenian law did not recognise “[compensation for] non-pecuniary damage” as a type of compensation. The Court reiterates in this connection that Article 5 § 5 should not be construed as affording a right to compensation for purely pecuniary damage, but should also afford a right to compensation in respect of any distress, anxiety and frustration that a person may have suffered as a result of a violation of other provisions of Article 5. It notes that it has already found the unavailability of compensation for damage of a non-pecuniary nature under the Armenian law to be in violation of the guarantees of Article 5 § 5 of the Convention. There are no reasons to depart from that conclusion in the present case. It follows that, at the material time, the applicant did not enjoy, in law or in practice, an enforceable right to compensation within the meaning of that Article.
The Court, at the same time, takes note of the fact that following the events of the present case, non-pecuniary damage has been introduced in Armenia as a type of compensation. The applicant, however, was not able to benefit from this new legislation.
There has accordingly been a violation of Article 5 § 5 of the Convention.
