CASE OF SELIVANOVA AND OTHERS v. RUSSIA

 

 

THIRD SECTION

CASE OF SELIVANOVA AND OTHERS v. RUSSIA

(Applications nos. 50794/16 and 6 others –

see appended list)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

15 September 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Selivanova and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Darian Pavli, President,
 Andreas Zünd,
 Mikhail Lobov, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 25 August 2022,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2.  The Russian Government (“the Government”) were given notice of the applications.

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the unlawful detention (deprivation of liberty). Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

ALLEGED VIOLATION OF ARTICLE 5 § 1 of the Convention

6.  The applicants complained principally of the unlawful detention (deprivation of liberty). They relied, expressly or in substance, on Article 5 § 1 of the Convention, which reads as follows:

“1.  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.”

7.  The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see, among numerous other authorities, Benham v. the United Kingdom, 10 June 1996, §§ 40-41 in fine, Reports of Judgments and Decisions 1996 III).

8.  In the earlier cases against Russia, the Court has consistently held that (1) detention of a criminal suspect without a court order beyond the 48-hour time-limit (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 76, 26 June 2018), (2) detention of an administrative suspect beyond the three-hour statutory period (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018), (3) “escorting” to the police station and ensuing detention of an administrative suspect in order to prepare an administrative offence record in the absence of any exceptional circumstances or necessity justifying the arrest and detention as required by the national legislation (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019), or (4) detention of an administrative suspect without any written record of the arrest (see Timishev v. Russia [Committee], no. 47598/08, § 21, 28 November 2017) have been contrary to domestic law requirements and the “lawfulness” guarantee of Article 5 of the Convention.

9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ detention was contrary to domestic law requirements and the “lawfulness” guarantee of Article 5 of the Convention (see the appended table).

10.  These complaints are therefore admissible and disclose a breach of Article 5 § 1 of the Convention.

OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11.  In applications nos. 39759/20 and 39776/20, the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in its well-established case-law (see, among other numerous authorities, Karelin v. Russia, no. 926/08, 20 September 2016, concerning absence of a prosecuting party from the administrative proceedings; Yakovlev v. Russia [Committee], no. 44240/12 and two others, 17 December 2019, concerning the defendant’s absence from the administrative appeal hearing, and Atyukov v. Russia [Committee], no. 74467/10, 9 July 2019, concerning the administrative defendant’s inability to confront witnesses against him).

REMAINING COMPLAINTS

12.  In applications nos. 50794/16, 67791/17, 81932/17 and 2128/18, the applicants also raised other complaints under various Articles of the Convention.

13.  The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

15.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Biryuchenko and Others v. Russia [Committee], no. 1253/04 and 2 others, § 96, 11 December 2014), the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicants’ claims for just satisfaction.

16.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to join the applications;Declares the complaints concerning the unlawful detention (deprivation of liberty) and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of applications nos. 50794/16, 67791/17, 81932/17 and 2128/18 inadmissible;Holds that these complaints disclose a breach of Article 5 § 1 of the Convention concerning the unlawful detention (deprivation of liberty);Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see the appended table); Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 15 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Darian Pavli
 Acting Deputy Registrar President

 

 

 

APPENDIX

List of applications raising complaints under Article 5 § 1 of the Convention

(unlawful detention (deprivation of liberty))

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Start date of unauthorised detention

End date of unauthorised detention

Specific defects

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant

(in euros)[1]

   

50794/16

17/08/2016

Yuliya Sergeyevna SELIVANOVA

1989

Kiryanov Aleksandr Vladimirovich

Taganrog

22/09/2013,

10.40 p.m.

23/09/2013,

6 p.m.

Detention as an administrative suspect: beyond the three-hour statutory period (Art. 27.5(1)‑(4) CAO) (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018)

 

3,000

   

43080/17

02/06/2017

Nachyn Valentinovich SARYGLAR

1997

Samdan Andrey Grigoryevich

Kyzyl

29/06/2016, 2.50 p.m.

29/06/2016, 7.40 p.m.

Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018)

 

3,000

   

67791/17

02/09/2017

Vyacheslav Petrovich VASILYEV

1987

Semkin Vladimir Borisovich

Tyumen

16/11/2016

17/11/2016

Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018)

 

3,000

   

81932/17

30/11/2017

Magomed Akhmetovich ICHIYEV

1981

Magomadov Andarbek Sharanovich

Moscow

23/04/2017

24/04/2017

Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018)

 

3,000

   

2128/18

12/12/2017

Roman Vladimirovich STRAKHOV

1972

Laptev Aleksey Nikolayevich

Moscow

12/06/2017

2.45 p.m.

12/06/2017

9 p.m.

Applicant taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable, on the spot, to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019),

Detention as an administrative suspect: no written record of the administrative arrest (Art. 27.4 CAO) (see Timishev v. Russia [Committee], no. 47598/08, § 21, 28 November 2017)

 

3,000

   

39759/20

23/08/2020

Anton Aleksandrovich KLYUZHEV

1995

 

 

03/08/2019,

2.50 p.m.

03/08/2019,

11.55 p.m.

Detention as an administrative suspect: beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018),

Applicant taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable, on the spot, to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019)

Art. 6 (1) - and Art. 6 (3) (d) - unfair trial in view of restrictions on the right to examine witnesses - failure to examine the police officers on whose written statements the applicant’s conviction was based,

 

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

3,900

   

39776/20

22/08/2020

Damir Nailyevich MANZHUKOV

1986

 

 

03/06/2020

8 p.m.

05/06/2020

12.30 p.m.

Detention as an administrative suspect: beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018),

 

Detention as an administrative suspect: the applicant remained in detention after the offence record had been compiled (see Korneyeva v. Russia, no. 72051/17, § 35, 8 October 2019)

Art. 6 (1) - and Art. 6 (3) (c) - applicant’s absence from criminal proceedings - from the appeal hearing before the Supreme Court of the Tatarstan Republic on 09/06/2020,

 

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

3,900

 

 

[1] Plus any tax that may be chargeable to the applicants.

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