FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 3708/03
by Yevgeniy MASTEPAN
against Russia
The European Court of Human Rights (First Section), sitting on 11 January 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 17 December 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Yevgeniy Sergeyevich Mastepan, is a Russian national who was born in 1975 and lives in Rubtsovsk. He is represented before the Court by Mr Y. Turushchukov, a lawyer practising in Rubtsovsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Within the framework of an investigation into circulation of counterfeit money, on 10 February 2002 two plain-clothes police officers came to the applicant’s flat. The officers told that they were husband and wife wishing to obtain a copy of a high-school graduation certificate. The applicant scanned the documents handed over by the “husband”, then changed the name of the holder and certain grades. Then he made colour printouts and asked for 500 Russian roubles (RUR) by way of payment.
One of the officers summoned a police squad and an investigator to the applicant’s flat. The investigator inspected the applicant’s flat as a crime scene and seized material evidence. The applicant was allegedly taken to the police station where he was detained until 2 a.m. on 11 February 2002.
On 15 February 2002 the investigator opened a criminal case against the applicant and charged him with forgery of official documents.
The applicant brought a complaint against the police squad and the investigator alleging that they had conducted an unlawful search of the premises.
On 3 July 2002 the Barabinskiy District Court of the Novosibirsk Region rejected the applicant’s complaint as unsubstantiated. The court found that the investigating officer acted in compliance with the applicable laws which allowed him to carry out inspection of the crime scene in the absence of a prior judicial approval. As regards the applicant’s allegations that the police officers had searched his flat and frisked him, the court indicated that the applicant had failed to follow the procedure established by law for challenging the police actions and refused to examine the relevant part of the complaint on the merits.
On 11 September 2002 the Novosibirsk Regional Court upheld the decision of 3 July 2002 on appeal.
It appears that the criminal proceedings against the applicant are still pending.
B. Relevant domestic law
1. Constitution of the Russian Federation
Article 25 of the Constitution provides that the home is inviolable. No one shall enter the dwellings against the will of those living there, unless otherwise established by a federal law or in accordance with a court order.
2. The Police Act
The police may enter the dwelling against the will of those living there if there is a reason to believe that a crime has been committed there (section 10).
3. The RSFSR Code of the Criminal Procedure (in force at the material time)
The investigator may inspect the crime scene prior even to institution of criminal proceedings and without warrant if there existed special urgency for doing so. In that case the criminal investigation was to be opened immediately after the inspection of the crime scene. If necessary, the investigator could seize the evidence discovered (Articles 178 and 179).
COMPLAINTS
The applicant complains that on 10 February 2002 he was incited to commit an offence by the police officers. He further alleges that on the same day the police squad and the investigator unlawfully entered his flat, carried out an unauthorised search and removed all valuable property. The policemen also tied, handcuffed and frisked him. They took him to the police station where he was detained till 2 a.m. on 11 February 2002. He invokes Articles 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1.
THE LAW
1. The applicant complained that he was incited by plain-clothes police officers to commit a criminal offence. The complaint falls to be examined under Article 6 § 1 of the Convention.
The Court notes that the criminal proceedings against the applicant are now pending. It therefore remains open to him to raise these issues before the trial and/or appeal courts.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The applicant complained that the investigator had unlawfully entered and searched his flat. The complaint falls to be examined under Article 8 of the Convention, which provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. Lastly, the Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of were within its competence, the Court found that they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the alleged interference with his right to respect for his home (Article 8 of the Convention);
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy