Communicated on 23 February 2018
THIRD SECTION
Application no. 27294/14
Gennadiy Grigoryevich POLYAK against Russia
and 8 other applications
(see appended table)
SUBJECT MATTER OF THE CASES
The applications concern, primarily, pre-trial measures such as administrative escorting (административное доставление) and/or administrative arrest (административное задержание) in respect of the applicants under Articles 27.1-27.3 of the federal Code of Administrative Offences (CAO).
COMMON QUESTION
Was each applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?
ADDITIONAL CASE-SPECIFIC ISSUES
See “Communicated issues” in the appended Table.
In particular:
As regards application no. 27294/14:
1.1 In view of the related arguments at the trial and in the appeal and review proceedings, has the applicant complied with the six-month rule under Article 35 § 1 of the Convention as regards the issue under Article 5 § 1 about the pre-trial deprivation of liberty? In this connection is it appropriate to take into account the review decisions dated 16 December 2013 and 14 March 2014 (compare with Orlovskaya Iskra v. Russia, no. 42911/08, §§ 69-80, 21 February 2017; Annenkov and Others v. Russia, no. 31475/10, §§ 107-10, 25 July 2017; and Smadikov v. Russia (dec.). no. 10810/15, § 49, 31 January 2017)?
1.2. Did his deprivation of liberty fall within the scope of Article 5 § 1 (e) or (c) of the Convention (compare with Kharin v. Russia, no. 37345/03, §§ 30-47, 3 February 2011, and Rakhimberdiyev v. Russia, no. 47837/06, §§ 35-36, 18 September 2014; see also Ruling no. 25-P of 17 November 2016 by the Russian Constitutional Court)?
2. Did the applicant have a fair trial in compliance with Article 6 §§ 1 and 3 (c)-(d) of the Convention (compare Frumkin v. Russia, no. 74568/12, §§ 165-66, ECHR 2016 (extracts))?
As regards application nos. 58518/14, 60398/15, 46442/17, 61668/17 and 61733/17:
1. Has each applicant complied with the exhaustion requirement under Article 35 § 1 of the Convention as regards the issue under Article 5 § 1 about the pre-trial deprivation of liberty? Taking into account whether the imputed offence was or was not punishable by administrative detention (административный арест), the outcome of each CAO case and – if appropriate –the applicant’s nationality (for application no. 60398/15), did each applicant have any prospect of success in:
(a) raising the related matters during a trial and/or in appeal or review proceedings under the CAO; and/or
(b) seeking judicial review under Chapter 25 of the Code of Civil Procedure; and/or
(c) obtaining an adequate monetary compensation under:
- the special rules of Article 1070 § 1 and Article 1100 of the Civil Code; or
- the general rules of tort liability under Article 1070 § 2 in conjunction with Article 1069 of the Civil Code (compare Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 113-14 and 229, 10 January 2012; also compare with the jurisprudence of the Russian Constitutional Court: Ruling no. 9-P of 16 June 2009; Decision no. 1049-O of 2 July 2013; Ruling no. 8-P of 17 March 2017; Ruling no. 25-P of 17 November 2016 (section 3)); or
- Articles 1069 and 1100 read with Article 16.1 of the Civil Code; and/or
(d) seeking institution of criminal proceedings, for instance, under Articles 127, 286 or 301 of the Criminal Code (compare Leonid Petrov v. Russia, no. 52783/08, §§ 49-50, 11 October 2016; Aleksandr Sokolov v. Russia, no. 20364/05, § 66, 4 November 2010; Aleksandr Andreyev v. Russia, no. 2281/06, §§ 34-45 and 47-51, 23 February 2016; and Smirnova v. Russia (dec.), no. 37267/04, 8 July 2014)?
The respondent Government are invited to submit examples of domestic judgments (preferably, issued by the Russian Supreme Court or Constitutional Court) concerning the matters mentioned above, inter alia, the prospects of success and adequacy of monetary awards during the relevant periods of time (that is between 2014 and 2017).
2. Was Article 13 of the Convention applicable in conjunction with Article 5 § 1 in respect of administrative escorting and/or administrative arrest (see Aleksandra Dmitriyeva v. Russia, no. 9390/05, §§ 114-15, 3 November 2011, and Iustin Robertino Micu v. Romania, no. 41040/11, §§ 109-11, 13 January 2015)? If yes, has there been a violation of Article 13 of the Convention?
As regards application no. 72051/17:
Was there a violation of Article 4 § 1 of Protocol No. 7 to the Convention? In particular:
- As to the sets of proceedings under Articles 19.3 § 1 and 20.2 § 5 of the CAO, when there was a “final” decision in one set of proceedings and did it entail duplication of proceedings and punishments?
- Alternatively (see A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 126, ECHR 2016), did the proceedings have a sufficiently close connection both in substance and in time with each other and constitute complementary legal responses to socially offensive conduct (ibid, §§ 121‑25 and 130-32)? If yes, did such accumulated legal responses represent an excessive burden for the applicant and entail, in substance or in effect, double jeopardy to her detriment (ibid)? Were the possible consequences of organising the legal treatment of the conduct concerned in such a manner proportionate and foreseeable for the applicant?
APPENDIX
No.
Application
no. and date of introduction
Applicant name
date of birth
place of residence
nationality
Represented by
Deprivation of liberty and
domestic decision details
Communicated issues
27294/14
28/03/2014
Gennadiy Grigoryevich POLYAK
22/07/1971
Michurinsk
Russian
Administrative escorting and arrest from 1 to 2 August 2013
judgment of 02/08/2013; appeal decision of 04/09/2013; 1st review decision of 16/12/2013; 2nd review decision of 14/03/2014
Article 5§1: unlawful administrative escorting and administrative arrest ;
Article 6§§1 and 3(c)-(d): unfairness resulting, inter alia, from restriction on the defence’s ability to contest adverse evidence by way of examining officers M. and B.; refusal to examine a security-camera recording
58518/14
05/08/2014
Andrey Valeryevich SEMOCHKIN
23/06/1982
Volgograd
Russian
Administrative arrest on 5-7 March 2014
judgment of 07/03/2014; appeal decision of 25/03/2014; 1st review decision of 20/08/2014 (discontinuation due to expiry of the prosecution period)
Article 5§1: unlawful administrative arrest ;
Article 13 (in substance) : lack of an effective remedy for the above issue;
Article 6§§1 and 3(c)-(d): no opportunity to retain counsel for the trial and to examine a police officer; the court’s refusal to assist in obtaining video evidence from a public enterprise
60398/15
16/11/2015
Radu
FOKSHA
06/08/1976
Hîncești
Moldavian
Administrative escorting (and arrest) on 24/06/2015
judgment of 24/06/2015; appeal decision of 14/07/2015;
1st review decision of 24/09/2015
Article 5§1: unlawful administrative escorting (and arrest)
Article 13 : lack of an effective remedy
46442/17
25/06/2017
Andrey Aleksandrovich MASHARO
04/04/1973
St Petersburg
Russian
Irina Leonidovna URADOVSKIKH
Administrative arrest from 11 p.m. on
24 August to 5.20 p.m. on 26 August 2016
Sentenced on 25/08/2016 to a fine by a police officer; judgment of 15/12/2016; appeal decision of 26/01/2017
Article 5§1: unlawful administrative arrest;
Article 5§2: no information about reasons for this arrest (cf. Malofeyeva v. Russia, no. 36673/04, §§ 68-73, 30 May 2013)
Article 13: no effective remedy for the above issues
53795/17
17/07/2017
Artem Valeryevich PARFENOV
06/03/1994
Armavir
Russian
Konstantin Ilyich TEREKHOV
administrative escorting and arrest on
23-24 March 2017
judgment of 24/03/2017, appeal decision of 12/04/2017
Article 5§1: arbitrary and unlawful arrest and detention prior and during the trial;
Article 6§1: lack of a prosecuting party at hearings (requirement of objective impartiality);
Article 6§§1 and 3: lack of an opportunity to contact a lawyer (for pre-trial and trial proceedings) and its adverse effect on the fairness of the proceedings;
Article 2 of Protocol No. 7: lack of a suspensive effect of an appeal vis-a-vis execution of the sentence of administrative detention
61668/17
11/08/2017
Eduard Viktorovich SHITIK
01/05/1961
Fedorovskoye
Russian
Administrative escorting (and arrest) on 29 April 2017
judgment of 12/05/2017; appeal decision of 13/06/2017
Article 5§1: unlawful administrative escorting and arrest;
Article 13 (in substance) : lack of an effective remedy for the above issue;
Article 6§1: lack of a prosecuting party at court hearings
61733/17
11/08/2017
Shakhnaz Davudovna SHITIK
13/07/1964
Fedorovskoye
Russian
Administrative escorting (and arrest) on 29 April 2017
judgment of 12/05/2017; appeal decision of 13/06/2017
Article 5§1: unlawful administrative escorting and arrest;
Article 13 (in substance) : lack of an effective remedy for the above issue;
Article 6§1: lack of a prosecuting party at court hearings
71399/17
27/09/2017
Nikita Aleksandrovich MILESHIN
27/07/1998
Korolev
Russian
Kamalia MEHTIYEVA
administrative escorting and arrest on 26 and 27 March 2017
judgment of 27/03/2017, appeal decision of 31/03/2017
Article 5§1: failure to comply with the requirements of Articles 27.1-27.3 of the CAO
72051/17
21/09/2017
Katerina Olegovna KORNEYEVA
17/02/1996
St Petersburg
Russian
Aleksandr Dmitriyevich PEREDRUK
administrative escorting and administrative arrest on 12-13 June 2017;
two cases (Articles 19.3 and 20.2 of the CAO): judgments of 16/06/2017, appeal decisions of 29/06/2017
Article 5§1: unlawful escorting and arrest;
Article 6§1: lack of a prosecuting party at the trial hearings in both cases (objective impartiality);
Article 6§§1 and 3(d) in both cases: lack of an opportunity to examine police officers at the trial or on appeal; restrictions on the defence’s ability to contest the adverse written evidence;
Article 4 § 1 of Protocol No. 7: tried and punished twice on account of the same facts
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