THIRD SECTION
DECISION
Application no. 7335/09
Oleg Petrovich ORLOV
against Russia
The European Court of Human Rights (Third Section), sitting on 14 May 2019 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Helen Keller,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 17 December 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Oleg Petrovich Orlov, is a Russian national who was born in 1953 and lives in Moscow. He was represented before the Court by lawyers from the Memorial Human Rights Centre.
The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 January 2006 the applicant, together with three other human rights activists, notified the Prefecture of the Central Administrative District of Moscow of their intention to hold a public event on the pavement in front of the main entrance to the FSB building at the Lubyanskaya Square in Moscow in order to denounce as false allegations of espionage raised by the FSB against non-governmental organisations. The event was scheduled to take place from 5.00 to 6.00 p.m. on 1 February 2006, with the expected participation of about fifty persons.
By letter of 26 January 2006 a deputy Prefect of the Central Administrative District of Moscow noted that the specified location was insufficient to accommodate all the participants to the event and suggested that it should be held near the Solovetskiy Stone memorial at the Lubyanskaya Square.
At 5.00 p.m. on 1 February 2006 about thirty people, including the applicant, gathered near the FSB building. They stationed themselves in a chain along the wall holding placards. According to the applicant, they did not obstruct the traffic of pedestrians or vehicles.
Immediately, police officers started to shout through loudspeakers that it was unlawful to assemble at that location. At about 5.10 p.m. the police started to arrest the participants to the event. Sixteen persons, including the applicant, were taken to the police station of the Meshchanskiy District of Moscow. At the police station they were charged with a breach of the established procedure for the conduct of public events, an offence under Article 20.2 § 2 of the Administrative Offences Code. At 10.00 p.m. the applicant was released.
On 31 March 2006 the Justice of the Peace of the 383rd Court Circuit of the Meshchanskiy District of Moscow convicted the applicant of a breach of the established procedure for conducting public events, an offence under Article 20.2 § 2 of the Administrative Offences Code, for failing to remain at the location approved by the Prefecture. He was sentenced to a fine of 1,000 Russian roubles (approximately 30 euros).
On 19 May 2006 the Meshchanskiy District Court quashed the decision of 31 March 2006 on appeal and discontinued the administrative proceedings against the applicant, finding that the Prefecture’s suggestion to change the location of the assembly had been unlawful and that the participants to the assembly had therefore acted lawfully and had respected the procedure for the conduct of public events.
On 11 January 2007 the applicant sued the Ministry of Finance for compensation in respect of non-pecuniary damage sustained through unlawful administrative arrest and administrative proceedings. He referred to Article 1070 § 1 of the Civil Code and Article 5 § 5 of the Convention.
On 21 February 2008 the Tverskoy District Court of Moscow dismissed the applicant’s claims. The court found that Article 1070 § 1 of the Civil Code contained an exhaustive list of grounds for application of State’s strict liability and that the applicant’s situation did not fall under any of those grounds. Accordingly the State’s strict liability rule proclaimed by that Article did not apply to the circumstances of the case. Moreover, the applicant had not proved that an administrative arrest report had been drawn up in accordance with Articles 27.3 and 27.4 of the Administrative Offences Code.
On 17 June 2008 the Moscow City Court upheld the judgment of 21 February 2008 on appeal, finding that it had been lawful, well reasoned and justified.
B. Relevant domestic law
Irrespective of any fault by State officials, the State or regional treasury is liable for damage sustained by a citizen on account of (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure in criminal proceedings, and (iii) unlawful sentence of administrative detention (Article 1070 § 1 of the Civil Code).
COMPLAINTS
1. The applicant complained under Article 5 § 1 of the Convention that his taking to the police station on 1 February 2006 had been arbitrary and unlawful.
2. The applicant further complained under Article 5 § 5 of the Convention that he had no enforceable right to compensation for his unlawful arrest.
3. Lastly, the applicant complained under Articles 10 and 11 of the Convention about the refusal to approve the public event, the termination of his participation in that event by means of an arrest and the administrative offence proceedings against him.
THE LAW
1. As regards the applicant’s complaints under Article 5 § 1 of the Convention, the Court notes that the applicant was taken to the police station on 1 February 2006 and was released on the same day. According to the Government, he was “escorted” under Article 27.2 of that Code. Although the Government did not submit any documents recording the use of the “escorting” procedure against the applicant, the Court does not have any reason doubt that it was indeed the “escorting” procedure that was applied to the applicant.
The Court further notes that the applicant did not complain about his taking to the police station in the administrative offence proceedings against him. He however lodged a civil claim under Article 1070 § 1 of the Civil Code providing for State’s strict liability in certain cases. His civil claim was rejected on the ground that Article 1070 § 1 contained an exhaustive list of grounds for application of State’s strict liability and that the applicant’s situation did not fall under any of those grounds. Indeed, in 2006 to 2008 there was no reason to believe that a civil claim for compensation under Article 1070 § 1 for the allegedly unlawful “escorting” under Article 27.2 of the Code of Administrative Offences had any prospects of success. It follows that a civil claim under Article 1070 § 1 of the Civil Code was a clearly ineffective remedy in the applicant’s situation and should not be counted for the purposes of the six-month rule.
The six months therefore started to run on the day of the applicant’s release, that is on 1 February 2006. It was however not until 17 December 2008 that the applicant lodged his application with the Court. Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. As regards the complaint under Article 5 § 5 of the Convention, the Court reiterates at the outset that the right to compensation under Article 5 § 5 of the Convention arises if a breach of one of its other four paragraphs has been established, directly or in substance, either by the Court or by the domestic courts (see, among many other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012; Svetoslav Dimitrov v. Bulgaria, no. 55861/00, § 76, 7 February 2008; and Çağdaş Şahin v. Turkey, no. 28137/02, § 34, 11 April 2006).
In the instant case there has been no acknowledgment of unlawfulness of the applicant’s detention at the domestic level. By virtue of the six months’ rule, the Court may not examine whether there have been violations of Article 5 §§ 1-4 relating to his detention. In the absence of the domestic acknowledgment of the unlawfulness of the detention and since the Court is not competent to decide on its lawfulness, Article 5 § 5 is not applicable to the present case.
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
3. As regards the applicant’s complaint under Articles 10 and 11 of the Convention about the refusal to approve the location of the public event, the Court notes that this issue was for the last time raised by the applicant and examined by the domestic courts in the administrative offence proceedings against him which ended by the judgment of 19 May 2006. The six months in respect of the complaint concerning the refusal to approve the location of the public event therefore started to run on that day.
As regards the termination of the applicant’s participation in the public event by his taking to the police station and the administrative offence proceedings against him, the applicant raised those issues in his civil claim under Article 1070 § 1 of the Civil Code. The Court has however already found under Article 5 § 1 that the civil claim did not have any prospects of success as regards “escorting” to the police station and should not therefore be counted for the purposes of six months (see above). There is no reason to reach a different conclusion under Articles 10 and 11. Similarly, there was no reason to believe that a civil claim for compensation under Article 1070 § 1 for the allegedly unlawful administrative offence proceedings had any prospects of success, given that the applicant had not been sentenced to administrative detention in the course of those proceedings. It follows that six months for the complaint about the taking to the police station started to run on 1 February 2006, while six months for the administrative offence proceedings started to run on 19 May 2006.
Given that the applicant lodged his application with the Court on 17 December 2008, the complaints under Articles 10 and 11 have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 June 2019.
Fatoş AracıPaulo Pinto de Albuquerque
Deputy RegistrarPresident
Full & Egal Universal Law Academy