FIRST SECTION
Application no. 10917/06
Yelena Vladimirovna LAVRICHENKO and Andrey Yevgenyevich LAVRICHENKO
against Russia
lodged on 7 February 2006
STATEMENT OF FACTS
The applicants, Mrs Yelena Vladimirovna Lavrichenko (“the first applicant”) and Mr Andrey Yevgenyevich Lavrichenko (“the second applicant”), are Russian nationals, who were born in 1958 and 1986 respectively and live in Novosibirsk. The second applicant is the first applicant’s son.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Criminal proceedings against the first applicant
The first applicant was the CEO and main shareholder of three commercial companies based in the Novosibirsk Region at the material time.
On 7 April 2004 the investigation authorities opened a criminal case against the first applicant under suspicion of fraud and money laundering in connection with a bank credit taken by one of her companies.
On 23 April 2004 another criminal case against the first applicant was opened under suspicion of intentional damaging of property interests of a private person.
The cases were closed due to the lack of corpus delicti twice and subsequently re-opened. On 15 December 2004 the cases were joined.
(a) The first applicant’s enforced attendance for questioning as a witness
On 30 March 2005 Ms F., the investigator in charge of the case, ordered the first applicant’s enforced attendance for questioning as a witness in unrelated criminal proceedings and instructed the police to implement that order. According to the first applicant, she was not summoned to the questioning in a usual way.
On 1 April 2005 the police brought the first applicant to the investigator, pursuant to the order of 30 March 2005. The first applicant was free to go after the questioning. During the questioning the investigator summoned the first applicant for an interrogation in respect of the criminal case against her. The interrogation was supposed to take place on 11 April 2005.
On 11 April 2005 the first applicant’s legal counsel met with the investigator. According to the first applicant, the counsel then called her by telephone and said that the investigator was going to arrest her. Out of fear of an unlawful arrest the first applicant decided not to come to the questioning.
(b) Charging of the first applicant; her arrest and interrogation as accused
On 21 April 2005 the investigator formally charged the first applicant in absentia and issued “the order on prosecution and charges”. The applicant was not informed about the charging order.
On 22 April 2005 the investigator ordered that the first applicant should not leave the town without the investigator’s approval. The first applicant was not informed about the decision.
On 25 April 2005 the investigator ordered the first applicant’s enforced attendance for interrogation as an accused for 26 April 2005 at 3.00 p.m. and issued a search warrant thereby her name was put on the list of wanted persons.
On 26 April 2005, at 3.08 p.m. the police officers apprehended the first applicant in the Kolyvanskiy District Court of the Novosibirsk Region situated 50 km away from Novosibirsk. She appeared there as a party to unrelated civil proceedings. According to the first applicant, the police officers did not allow her to call the investigator for clarification of when she should appear because the appointment for attendance had already passed. Nor was she allowed to call her lawyer. The police officers served the first applicant with the investigator’s order for her enforced attendance for questioning in the premises of the Novosibirsk Investigative Committee. However, from the court she was directly brought to a temporary detention ward (the IVS) of the Dzerzhinskiy District Police Department of Novosibirsk. She arrived at the IVS at 5.50 p.m.
A record of the first applicant’s arrest was drawn up in the IVS. This record indicated that she had been arrested because “the investigator, with the prosecutor’s approval, had sought a detention warrant before the court in respect of [the first applicant]”. The investigator arrived at the IVS and served the first applicant with an arrest warrant, according to which, she was arrested for 48 hours as a suspect. The reasons given in the arrest warrant were as follows: she attempted to abscond, had no permanent place of residence and the investigator, with the prosecutor’s approval, had requested the court to issue a detention order in her respect.
On 26 April 2005, at 7.15 p.m., the first applicant was given a copy of the investigator’s order of 26 April 2005 by which the previous preventive measure (undertaking not to leave the town) had been revoked.
(c) The court’s decision on further detention of the first applicant
On 27 April 2005, at noon, the investigator’s request for the first applicant’s detention arrived at the Tsentralniy District Court of Novosibirsk (“the District Court”).
On the same day, at 16.10, the first applicant was provided with the investigator’s charging order dated 21 April 2005. Afterwards the first applicant was interrogated by the investigator, in the presence of her legal counsel.
On 28 April 2005 the investigator submitted to the court the charging order and a record of her interrogation.
On the same day, at noon, the District Court dismissed the investigator’s request for the first applicant’s detention, as it found no ground for this. The court noted that the first applicant had a permanent place of residence and as head of three commercial companies, had a permanent occupation. The first applicant had not been properly informed about the investigator’s order imposing an obligation not to leave the town. Furthermore, the investigator had failed to summon the first applicant for interrogation before her arrest. The court dismissed as unsubstantiated the investigator’s argument that the police had not found the first applicant in her apartments. It also noted that the criminal case against the first applicant had been closed due to lack of corpus delicti on two occasions. The court concluded that the first applicant had not been hiding from the investigation authorities. It stressed that the first applicant offered a bail of 300,000 Russian roubles (about 7,500 euros).
According to the first applicant, after the pronouncement of the decision by the District Court the police brought her back to the IVS where she spent another three hours in a cell before her release. She was released from the IVS on 28 April 2005 at 2.59 p.m.
(d) The first applicant’s attempts to challenge unlawful deprivation of liberty
Referring to Article 125 of the Russian Code of Criminal Procedure the first applicant challenged the actions of the investigator and police before the court. She complained, inter alia, that her enforced attendance as a witness on 1 April 2005 had been unlawful because the investigator had not summoned her previously. She also complained about her arrest and detention on 26 and 27 April 2005. The investigator’s orders for her enforced attendance and search had been unlawful since she had had a permanent place of residence, the investigator had sent no summons and she had not been hiding from the investigation authorities, as established by the court decision of 28 April 2005. Finally, the first applicant complained about her belated release on 28 April 2005. She argued that her constitutional right to liberty was violated by the above measures.
By final decisions 8 August, 23 November and 7 December 2005 the Novosibirsk Regional Court refused to examine her complaints on the merits. The court found that the actions and decisions complained of were not subject to judicial review.
(e) Outcome of the criminal proceedings against the first applicant
Subsequently, a number of additional charges were brought against the first applicant. The criminal proceedings ended with her acquittal on five charges and her conviction on one charge. The judgments were confirmed on appeal by the Novosibirsk Regional Court on 8 February 2010 and 5 April 2010. The applicant was found guilty of having committed fraud by way of unauthorised selling of a relative’s apartment and sentenced to three years’ imprisonment. The enforcement of the sentence was suspended.
2. Housing dispute
The husband of the first applicant owned an apartment situated on the third floor in a block of flats in Novosibirsk. His brother owned an adjacent apartment on the same floor. In 2000 the brothers decided to merge the two apartments into one. The reconstruction works were finished the same year. Following reconstruction the new “common apartment” obtained a single entrance door for both parts of the apartment. However, each brother remained formally the owner of his own part of the “common apartment”.
In 2003 the first applicant’s husband died. The two applicants inherited his apartment and moved in.
The brother of the first applicant’s late husband did not want to live with the applicants in the common apartment, so he decided to split it and turn his original apartment into an independent dwelling. The applicants opposed that plan since after the reconstruction works their part had become unusable without the other part which belonged to the brother of the late husband.
The brother of the late husband then brought civil proceedings against the two applicants seeking a court injunction ordering them not to hinder him in the reconstruction of his apartment and making it a separate apartment as it had been previously. He also sought the applicants’ eviction from his apartment. The courts granted his claims by a final judgment of the Novosibirsk Regional Court of 18 March 2008.
The applicants, as well as the bailiffs, asked the court for clarification of the judgment arguing that in case of its implementation the applicants would not have access to their apartment because it did not have a separate entrance door. By two decisions of 7 August 2008 and 18 December 2008 the Leninskiy District Court of Novosibirsk refused to give the clarification stating that the applicants were not prevented from making an entrance door by themselves. The court also noted that the applicants’ unwillingness to do so should not hinder the execution of the judgment and violate the rights of the claimant.
On 3 June 2009 the judgment was enforced. Construction workers hired by the bailiffs built a brick wall in the place of the door between the two apartments. The applicants decided to remain in their apartment. Since there was no other door between the apartment and the common premises of the block of flat, the applicant found themselves locked in their flat by this newly constructed wall.
The situation attracted a lot of media attention. The bailiffs decided to act and on 9 June 2009 they asked the court for clarification of the judgment again. The hearing was set for 10 June 2009. The second applicant was summoned to the hearing shortly before the hearing took place, but decided not to come. The first applicant was not summoned because she left the apartment previously through the window and went to Moscow for participation in a TV-show concerning this episode.
On 10 June 2009 the Leninskiy District Court of Novosibirsk examined the bailiffs request for clarification in the applicants’ absence and decided to clarify its own judgment. It ruled that in order to enforce the original judgments it was necessary to open a door connecting the applicant’s apartment with the outside world. The court held that the ruling should be enforced immediately. The ruling was enforced on the same day.
On 20 August 2009 the Novosibirsk Regional Court upheld the ruling on the applicants’ appeal.
3. Other proceedings
The first applicant was involved in a number of civil proceedings. She participated in proceedings concerning the validity of a surety given by the Administration of the Novosibirsk Region for a bank loan, received by one of her companies. By a final judgment of 5 June 2006 the Supreme Commercial Court of Russia confirmed that the surety was valid.
By a judgment of 8 September 2009 the Federal Commercial Court of the North-Siberian Circuit dismissed the first applicant’s claims for compensation of damages against the Bailiffs’ Service. It appears that the applicant did not lodge a supervisory review application with the Supreme Commercial Court of Russia.
By a final judgment of 20 December 2011 the Novosibirsk Regional Court dismissed the first applicant’s action against the brother of her late husband for compensation of damages caused by the separation of their common apartment.
Finally, the first applicant lodged a criminal-law complaint against a number of private persons and challenged the investigator’s inactivity in court. The courts refused to examine her complaint against the investigator finding that it was not subject to judicial review. Final decision in this case was rendered by the Novosibirsk Regional Court on 12 September 2011.
B. Relevant domestic law
1. Constitution of the Russian Federation of 1993
Everyone has a right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order must not exceed forty-eight hours (Article 22 § 2).
2. Code of Criminal Procedure
Every witness is obliged to appear for questioning when summoned by an inquirer, an investigator or a court (Article 56 § 6 (1)).
If a suspect, an accused, a witness or a victim does not obey a summons to appear without a good reason [and his/her location is known], the investigator may order his/her enforced attendance by the police (Article 113). If the location of a suspect or an accused is unknown, the investigator orders for his/her search by the police. The accused, if found, may be arrested and placed in custody if there are reasons for such measure established by law (Article 210).
The court’s decision [dismissing the investigator’s request for detention] shall be executed immediately (Article 108 § 8).
Article 125 provides for judicial review of a decision or (in) action on the part of an inquirer, investigator or prosecutor, which has affected the constitutional rights or freedoms of parties to criminal proceedings. The judge is empowered to verify the lawfulness and reasonableness of the decision/(in)action and to grant the following forms of relief: (i) to declare the impugned decision/(in)action unlawful or unreasonable and to order the respective authority to remedy the violation; or (ii) to reject the complaint.
COMPLAINTS
1. Under Article 5 the first applicant complains that:
(a) her enforced attendance for questioning as a witness on 1 April 2005 was unlawful because she had not been previously summoned to it;
(b) her arrest and detention on 26 and 27 April 2005 were unlawful as lacking any justification;
(c) she was not informed promptly of the reasons for her arrest;
(d) her detention for three hours, after the court on 28 April 2005 dismissed the investigator’s request for her placement in custody, was unlawful.
2. Under Article 5 the applicants complain that they were locked by the bailiffs in their apartment for nine days.
3. Under Article 6 the first applicant complains that:
(a) domestic courts refused to examine on the merits her grievances about the deprivation of libery in the course of the criminal proceedings against her;
(b) various procedural decisions taken in the proceedings in which she was involved breached her rights and were unlawful.
4. Under Article 1 of Protocol no. 1 the first applicant complains about the outcome of the civil proceedings in which she was involved.
5. Under Article 13 the applicants complain about the lack of any effective remedy for their complaints described above.
QUESTIONS TO THE PARTIES
1. Did the first applicant’s enforced attendance for questioning as a witness on 1 April 2005 comply with Article 5 § 1 (b) of the Convention? Reference is made, in particular, to the investigator’s alleged failure to summon the first applicant before the questioning. At what time did the enforced attendance on 1 April 2005 start and end? At what time did the questioning start and end?
2. Was the first applicant’s arrest for questioning on 26 April 2005, at 3.08 p.m., and her further detention pending examination of the investigator’s request for further detention (until 28 April 2005, at noon, when the court ordered her release) lawful and in compliance with Article 5 § 1 of the Convention?
3. Did the first applicant’s detention from noon to 2.59 p.m. on 28 April 2005 comply with Article 5 § 1 of the Convention? Reference is made, in particular, to the allegedly belated release of the first applicant from detention after the court’s decision refusing her placement in custody. What was the purpose of her detention during that period? Had it any basis in law?
The parties are requested to submit a copy of the first applicant’s certificate of release and any other documents confirming the time of her release from detention on 28 April 2005.
4. Did the first applicant have at her disposal an effective procedure by which she could challenge the lawfulness of her deprivation of liberty in the above periods (see questions nos. 1, 2 and 3 above), as required by Article 5 § 4 of the Convention?
5. Did the first applicant have an enforceable right to compensation for her deprivation of liberty in the above periods, as required by Article 5 § 5 of the Convention?
6. Did the applicant have access to court, as required by Article 6 § 1 of the Convention, in respect of her complaints about unlawful detention in the above periods?
7. Did the applicant have an effective remedy to complain about her detention during the above periods, as required by Article 13 of the Convention?
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