Communicated on 13 September 2016
THIRD SECTION
Application no 54381/08
Svetlana Ivanovna TSVETKOVA against Russia
and 5 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Russian nationals.
A. The circumstances of the cases and the complaints
1. Application no. 54381/08 lodged on 20 October 2008 by Svetlana Ivanovna Tsvetkova, who was born in 1972 and lives in Irkutsk.
On 1 January 2008 Officer S. escorted her to the police station, in accordance with Article 27.2 of the Federal Code of Administrative Offences (“the CAO”) on suspicion of shoplifting.
Officer B. compiled an arrest record under Article 27.3 of the CAO. The administrative arrest record reads as follows:
“I, Officer B. ... compiled the present administrative arrest record in respect of : [the applicant’s name, date of birth, address] ... who has been escorted to [...] on 1 January 2008 at 10 p.m., on account of an administrative offence under Article [blank] of the CAO.
Reasons for the arrest (Article 27.3 of the CAO): [blank] ...”
The applicant was released at 3 a.m. on 2 January 2008. She was not subsequently prosecuted for shoplifting.
On 27 May 2008 the applicant sought the institution of criminal proceedings against Officer S., referring to unlawful deprivation of liberty and an unlawful body search. On 16 June 2008 an investigator refused to open a criminal case, finding that the officer had not committed any abuse of power, which was a criminal offence punishable under Article 286 of the Criminal Code.
On 20 June 2008 a superior officer quashed the refusal to open a case, but a new refusal was issued on 30 June 2008 by the same investigator. That was also then quashed.
A further refusal was issued on 11 December 2008 and the applicant sought judicial review. On 19 January 2009 the Oktyabrskiy District Court of Irkutsk confirmed the refusal. On 26 February 2009 the Irkutsk Regional Court set aside the judgment, considering that the applicant’s allegations concerning the unlawfulness of her arrest had not been examined.
The District Court then declined jurisdiction in favour of another court, but that was declared unlawful on appeal.
On 8 May 2009 the District Court discontinued the case because on 7 May 2009 the impugned refusal to prosecute had been quashed by a superior officer. However, a new refusal was issued on 12 November 2009, which was upheld by a final judgment of the Regional Court on 9 September 2010.
In separate proceedings, the applicant sought compensation on account of the lengthy proceedings related to the above criminal complaint. By a judgment of 16 December 2008, the Kirovskiy District Court of Irkutsk dismissed her claims. On 8 April 2009 the Regional Court upheld that judgment. The courts considered that the applicant had failed to prove that the investigating authorities had acted unlawfully.
Complaint: The applicant alleges under Article 5 of the Convention that she was arbitrarily and unlawfully deprived of liberty because the arrest record contained no reasons or grounds for her arrest.
2. Application no. 10939/11 lodged on 28 January 2011 by Aleksandr Vitalyevich Bgantsev, who was born in 1958 and lives in Volgograd.
On 30 August 2010 the applicant’s superior, Mr I., called the police because the applicant had used (unspecified) foul language at his work place. Officer O. ordered the applicant to accompany him to the police station. The applicant refused and said that nothing prevented the officer from compiling an administrative offence record on the spot. The officer insisted, stating that it would be more convenient for him to do it at the police station. The applicant obeyed and was escorted to the police station at around 1 p.m. (Article 27.2 of the CAO). At 3.40 p.m. he was subjected to the arrest procedure (Article 27.3 of the CAO). The arrest record reads as follows:
“[The applicant] was escorted to the police station at: 3.40 p.m.
On account of: an administrative offence under: Article 20.1 of the CAO
For the purpose(s) of Article 27.3 of the CAO: for taking a decision.”
Officer O. compiled the administrative offence record, which reads as follows:
“[The applicant] used foul language in the presence of Mr I. and continued his unruly behaviour, despite being asked to stop. Thus, [the applicant] committed an offence under Article 20.1 of the CAO.
Witnesses to the offence: Mr K.; Mr M.”
The applicant spent the night at the police station.
On 31 August 2010 the applicant was taken before a justice of the peace, who held a hearing and examined the applicant, as well as I., K. and M. On the same day, the justice of the peace convicted the applicant of minor hooliganism (Article 20.1 of the CAO) and sentenced him to five days of detention.
The applicant started to serve the sentence on the same day, at the police station. Between 30 August and 4 September 2010 he was locked in cells measuring six square metres and accommodating, on average, four detainees. Each cell was equipped with two benches some 35 cm in width. There was no window and no ventilation system, and the other detainees smoked cigarettes, which caused discomfort to the applicant, who was not a smoker. There was no bed or bedding. The applicant was not provided with food or allowed outdoors. Access to a toilet (which was apparently outside the cell) was available every four hours (or sometimes every eight hours). The applicant submitted written statements from three co-detainees in support of his allegations.
The applicant was released at 3.40 p.m. on 4 September 2010.
On 4 October 2010 the Krasnoarmeyskiy District Court of Volgograd held an appeal hearing and examined the applicant, I., K., M and Officer O. The appeal court upheld the judgment of 31 August 2010.
On 3 November 2010 the Volgograd Regional Court upheld the judgments on review.
Complaints: The applicant complains that his being escorted to the police station and the ensuing arrest procedure was not necessary to attain the requisite statutory aims and that no record was compiled in that regard; the deprivation of liberty did not pursue any of the aims listed in paragraph 1 of Article 5 of the Convention. The applicant also complains under Article 3 of the Convention about the conditions of his detention from 30 August to 4 September 2010 and that he had no effective remedies in that regard.
3. Application no. 13673/13 lodged on 1 February 2013 by Pavel Vladimirovich Andreyev, who was born in 1989 and lives in Syktyvkar.
On 9 December 2011 the applicant distributed leaflets in various police stations, urging the police not to use force to disperse public gatherings which were to be held on 10 December 2011, after the contested elections to the State Duma earlier that month.
At 11 p.m. the traffic police took the applicant to the police station on suspicion of evading military service. At 11.50 p.m. the applicant was charged with an administrative offence under Article 20.25 of the CAO on account of an unpaid fine of 300 roubles (RUB) (equivalent to seven euros (EUR)) for a traffic offence. The charge concerning evasion of military service was not pursued.
The arrest record reads as follows:
“[The applicant] was escorted to the police station: at 11.30 p.m.
On account of an administrative offence: under Article 20.25 of the CAO.
For the purposes of Article 27.3 of the CAO: for compiling an administrative record.”
The applicant was not released after the administrative offence record had been drawn up, but was instead placed in a detention centre at 2 a.m., for reasons which were not specified.
At 3 p.m. on 11 December 2011 the applicant was taken before a justice of the peace, who then sentenced him to two days of detention for the offence under Article 20.25 of the CAO. The applicant was then taken back to the detention centre and was released at around 11.30 p.m.
The applicant brought proceedings, under Chapter 25 of the Code of Civil Procedure (“the CCP”), to challenge the deprivation of liberty from 2 a.m. on 10 December 2011 to 3 p.m. the next day. By a decision of 12 May 2012, the Syktyvkar Town Court discontinued the proceedings. On 2 August 2012 the Supreme Court of the Komi Republic upheld the decision. On 4 March 2013 the cassation instance of the same court confirmed it. The courts considered that while neither the CCP nor the CAO set out a separate procedure for challenging the measures of being escorted to the police station or of administrative arrest, they could be used in arguments raised during an examination of the related CAO charges against the applicant as well as in an appeal against a decision that had been taken on such charges.
In separate proceedings, the Town Court examined a claim by the applicant for compensation in respect of non-pecuniary damage on account of the same factual and legal circumstances. By a judgment of 19 September 2012, the Town Court dismissed his claim. The court considered that the matters relating to the applicant’s being taken to the police station and the ensuing administrative arrest had been examined in the CAO case and there were therefore no reasons to award compensation. On 20 December 2012 the Supreme Court of the Komi Republic upheld that judgment.
Complaints: The applicant complains that there was a breach of Article 27.4 of the CAO because the administrative arrest record had not contained any valid reasons for his arrest, so as to correspond to the purposes mentioned in the sub-paragraphs of Article 5 § 1 of the Convention; the only purpose for his arrest was to draw up the record, which was completed by 11.59 p.m. on 9 December 2011; therefore, there were no legal grounds or reasons to keep him in detention thereafter. He also contends that Russian law did not provide for judicial review of administrative arrest and did not afford an enforceable right to compensation for any arrest that was unlawful or lacked justifiable reasons.
4. Application no. 69739/14 lodged by Aleksey Olegovich Dragomirov on 5 September 2014, who was born in 1980 and, as of October 2014, was in a detention centre in Smolensk.
(a) Domestic proceedings
On various dates between 2001 and 2008, including from 9 to 11 June 2008 (see below), the applicant was kept in a temporary detention centre. According to him, the cells had no toilet; he had to relieve himself in a bucket; there was no running water available in the cells; and no access to shower facilities.
On 9 June 2008 Officer S. arrested the applicant for being drunk in a public place. On 10 June 2008 the applicant was taken before a justice of the peace and admitted that he had consumed half a litre of vodka with a friend. On the same day, the justice of the peace convicted the applicant of an administrative offence under Article 20.21 of the CAO (being drunk in a public place while having an untidy appearance, thus offending human dignity and public morals) and sentenced him to five days of administrative detention.
The applicant started to serve his sentence on 10 June 2008.
The applicant appealed. On 11 June 2008 the Bolsheukovskiy District Court set aside the conviction and discontinued the case. The appeal court considered that there had been nothing to suggest that the applicant had had an untidy appearance which offended human dignity or public morals; on the relevant date the applicant had had an appointment at the prosecutor’s office and no complaint had been made concerning his appearance or any state of drunkenness.
The applicant was released on 11 June 2008.
The applicant brought civil proceedings, seeking compensation in the amount of RUB 100,000 in respect of non-pecuniary damage owing to, inter alia, unlawful deprivation of liberty and the conditions of his detention.
By a judgment of 5 March 2014, the District Court awarded the applicant RUB 5,000 (EUR 100 according to the Bank of Russia rate on the relevant date) on the basis of the fact that the prosecution had been discontinued.
On 4 June 2014 the Omsk Regional Court upheld that judgment.
(b) Proceedings before the Court
The applicant dated his application form 5 September 2014 and it was registered by the prison staff on the same day. It was sent from the prison on 15 October 2014 and reached the Court on 24 October 2014. The envelope contained a cover note from the prison staff, also dated 5 September 2014, indicating that the submission contained twenty-five pages.
Complaints: The applicant complains that his arrest and detention in June 2008 were arbitrary and unlawful, in breach of Article 5 of the Convention, and that he was afforded no redress in the form of compensation.
5. Application no. 70724/14 lodged on 24 October 2014 by Viktor Grigoryevich Torlopov, who was born in 1963 and lives in Syktyvkar, Komi Republic.
Section 8 of the Public Gatherings Act of 2004 banned public gatherings “in the immediate vicinity of court buildings”. Relying on this provision of the Act, in 2011 the Syktyvkar town administration ordered that public gatherings were to be banned within a radius of 150 metres from any court, to be measured from the entrance to each court building in the town. That included the regional Constitutional Court, which had recently moved close to Stefanovskaya Square. The square also hosted various official buildings, such as the Town Court and the prosecutor’s office. According to the applicant, the square was the only suitable place for sizeable public gatherings.
At 9 a.m. on 12 October 2011, as part of a series of solo demonstrations held in late 2011, the applicant entered the square with a poster saying “The prosecutor’s office should return Stefanovskaya Square to demonstrators!”. He placed himself within the fenced area around the building housing the prosecutor’s office.
After ten minutes the police ordered him to stop the demonstration, because it was being held in the vicinity of the Town Court building. The applicant was handcuffed. Allegedly, physical force was used against him. He was then taken to the police station and accused of breaching regulations on public gatherings, which is an administrative offence under Article 20.2 of the CAO. The applicant was released at 8.30 p.m.
He was later admitted to hospital.
By a judgment of 6 December 2011, a justice of the peace convicted the applicant and sentenced him to a fine of RUB 500 (equivalent to EUR 12 at the time). On 14 March 2012 the Syktyvkar Town Court upheld the judgment.
However, on 23 August 2013 the Supreme Court of the Komi Republic set aside the above judgments and discontinued the case. The court considered that there had been no evidence that the place where the applicant had stood was assigned to the territory of the Town Court under the applicable laws and regulations.
The applicant brought civil proceedings for compensation on account of unlawful deprivation of liberty on 12 October 2011. By a judgment of 12 February 2014, the Town Court dismissed his claim. On 24 April 2014 the Supreme Court of the Komi Republic upheld that judgment. The court observed as follows:
- Having regard to Articles 5, 10 and 11 of the Convention and the ruling of the Plenary Supreme Court of Russia dated 27 June 2013 (concerning the application of the Convention by courts of general jurisdiction), the measure of escorting the applicant to the police station had been proportionate, had pursued a legitimate goal, had been of short duration, and had not involved any recourse to physical force.
- The measure had been aimed at ensuring prosecution for an administrative offence, including the drawing up of an arrest record.
Complaints: The applicant complains that there was no “reasonable suspicion” of him committing an offence under Article 20.2 of the CAO, as confirmed by the Supreme Court of the Komi Republic; in any event, the use of the procedure to escort him to the police station and the administrative arrest did not pursue any of the purposes listed under Article 5 § 1 of the Convention. He concludes that his arrest was “unlawful” and arbitrary under that provision and that the refusal of compensation violated Article 5 § 5 of the Convention.
6. Application no. 52440/15 lodged on 30 September 2015 by Kirill Valentinovich Svetlov, who was born in 1990 and lives in Cherepovets in the Vologodsk Region.
On 4 September 2015 the applicant’s car was stopped by the police. The applicant was accused of an administrative offence under Article 12.7 of the CAO because he had no valid driving licence. The applicant was taken to the police station where he went through the procedure of being placed under administrative arrest. His mobile telephone was seized.
According to the applicant, he was not informed of his procedural rights, including the right to remain silent, when he was pulled up, or at the police station.
On 6 September 2015 (a Sunday) the applicant was taken before the justice of the peace. At the hearing, the applicant asked for a lawyer. The judge adjourned the hearing for thirty minutes to allow the applicant to contact a lawyer. According to the applicant, during the break in the hearing, the guard took him to the metal cage where defendants were kept. The applicant had no access to a telephone.
After the adjournment, the justice of the peace convicted the applicant of the offence and sentenced him to five days of administrative detention, to be counted from 4 September 2015.
The applicant began his sentence the same day.
On 8 September 2015 the applicant appealed. He was released on 9 September 2015.
On 18 September 2015 the Cherepovets Town Court examined the applicant and upheld the judgment against him.
The applicant also lodged a constitutional application. By decision no. 2732-O of 19 November 2015, the Constitutional Court held that the immediate execution of the sentence of administrative detention did not contradict the Constitution (see “Relevant domestic law and practice” below).
On 26 November 2015 the Vologda Regional Court dismissed an application by the applicant for review of the court decisions of 6 and 18 September 2015.
On 1 April 2016 the Supreme Court of Russia dismissed the applicant’s further application for review.
Complaints: The applicant complains under Article 5 of the Convention that his deprivation of liberty was unlawful in the absence of any “exceptional circumstances” required under Russian law to justify his administrative arrest, and that the immediate execution of the sentence of administrative detention ran counter to the principle of Russian law that a sentence of deprivation of liberty is only allowed under a final judgment. The applicant argues that the immediate execution of the sentence also amounted to a violation of the presumption of innocence and the right of appeal. Lastly, the applicant complains under Article 6 of the Convention that he could not appoint a lawyer and prepare properly for the trial.
B. Relevant domestic law and practice
1. Police powers
Under the old Police Act (Federal Law no. 1036-I of 18 April 1991), applicable until 2011 the police were empowered to carry out an administrative arrest.
Under the current Police Act (Federal Law no. 3-FZ of 7 February 2011) the police are empowered to check an individual’s identity documents where there are reasons to suspect the person of a criminal offence or if his or her name is on a wanted persons list; where there is a reason for prosecuting him or her for an administrative offence; or where there are other grounds, provided for by federal law, for arresting the person (section 13 of the Act). The police are also empowered to take the person to a police station in order to decide whether he or she should be arrested, if that cannot be done on the spot. The police are empowered to take fingerprints and photographs or to make video recordings of an arrestee suspected of a criminal offence, or if it was not possible to properly identify the arrestee during the arrest (section 13 of the Act).
2. Administrative escorting to a police station and administrative arrest
(a) General provision
Article 27.1 of the CAO provides for a number of measures, including escorting a suspect to a police station (административное доставление) or administrative arrest (административный арест). These measures may be used for the purpose of putting an end to an administrative offence; to establish an offender’s identity; to compile an administrative offence record, where this cannot be done on the spot; to ensure a timely and correct examination of a case; and to enforce a decision taken in a case.
The Constitutional Court has stated that the Civil Code should be interpreted as affording a possibility to claim compensation on account of being escorted to a police station or being placed administrative arrest; the courts must assess both the formal lawfulness of the measure and the reasons for it, in terms of its fairness and proportionality. With regard to the reasons cited in the administrative arrest record, the courts must ascertain whether the arrest was the only acceptable measure in the circumstances (Decision no. 1049-O of 2 July 2013).
(b) Administrative escorting
Article 27.2 of the CAO defines the procedure of escorting someone to a police station as being that by which an offender is compelled to follow the competent officer for the purposes of compiling an administrative offence record when it cannot be done on the spot.
The Constitutional Court has held that this measure of compulsion, which amounts to a temporary restriction of a person’s freedom of movement, should be applied only when it is necessary and within short timeframes. Referring to the notion of “deprivation of liberty” under Article 5 of the Convention, the Constitutional Court has ruled that the relevant criteria relating to Article 5 of the Convention are “fully applicable” to the measure (Decision no. 149-O-O of 17 January 2012).
(c) Administrative arrest
Pursuant to Article 27.3 of the CAO, in exceptional circumstances relating to the need for a proper and expedient examination of an administrative case, the person concerned may be placed under “administrative arrest”.
The duration of such administrative arrest must not exceed three hours. Administrative arrest for a longer period, not exceeding forty-eight hours, is permissible only for persons subject to administrative proceedings concerning an offence punishable by administrative detention or offences involving the unlawful crossing of the Russian border. Under Article 27.5 of the Code, the term of arrest starts to run as soon as the person has been escorted to the police station in accordance with Article 27.2.
The arrestee should be informed of his rights and obligations and this notification should be mentioned in the arrest record.
The Constitutional Court has ruled that such arrest amounts to “deprivation of liberty” as it is understood by the European Court within the meaning of Article 5 §1(c) of the Convention (Ruling no. 9-P of 16 June 2009).
3. Sentence of administrative detention
(a) Relevant legislation
Law-enforcement officers should execute a sentence of administrative detention immediately after the delivery of the relevant judgment by a court (Article 32.8 of the CAO).
Section 49 of the Russian Constitution provides that everyone, who is accused of a criminal offence, is presumed innocent until his guilt is proven pursuant to the procedure prescribed by a federal statute and is established by a final judgment in a criminal case.
A similar provision is contained in Article 1.5 of the CAO.
(b) Decision no. 2732-O
By decision no. 2732-O of 19 November 2015, the Constitutional Court held that the immediate execution of a sentence of administrative detention did not contradict any provision of the Constitution, including Articles 15, 17, 22 and 49 (presumption of innocence), for the following reasons:
- Penalties provided for by the CAO, except for administrative detention, are executed (if imposed by a court) following the expiry of the time-limit for an appeal, or after an appeal has been examined.
- While being the strictest penalty under the CAO, a sentence of administrative detention is imposed only in “exceptional circumstances” and only for certain listed offences. The execution of such a sentence is accompanied by guarantees of judicial protection: the sentence is imposed by a court; that court must provide reasons for imposing such a sentence; the sentence is notified without delay to the defendant; an appeal against the sentence can be submitted to a higher court without delay and must be examined within one day; and the period of administrative detention is counted from the moment of administrative arrest.
Judge Knyazev expressed a separate opinion. He found that the applicable legislation meant that a person who had not yet been found guilty was compelled, in the absence of a final judgment having the quality of res judicata, to serve a period of administrative detention. Article 49 of the Constitution provides that everyone should be presumed innocent until his or her guilt has been proven by a final criminal judgment. That principle is applicable to the CAO, in particular having regard to the European Court’s approach in applying the criminal limb of Article 6 of the Convention to the CAO or to similar cases (Mikhaylova v. Russia, no. 46998/08, 19 November 2015). Noting that the Convention is an integral part of the Russian legal system and has “priority over national statutes when they conflict”, Russia’s obligations under Article 6 of the Convention require strict compliance with the presumption of innocence, both in criminal cases and cases under the CAO. The safeguards referred to by the majority are not sufficient to ensure respect of the presumption of innocence and appear to sit ill with the constitutional guarantee of judicial protection of rights and judicial protection against unfair prosecution and punishment. In fact, although dealing with less serious cases, the CAO is stricter than the Code of Criminal Procedure, under which a sentence of imprisonment is only executed following an appeal judgment.
COMMON QUESTIONS
Was each applicant “deprived of [his/her] liberty” within the meaning of Article 5 of the Convention? If so, was the relevant period lawful and “in accordance with a procedure prescribed by law”? In particular, did the administrative escorting and administrative arrest fall within the scope of:
Article 5 § 1 (c), in particular as applied “for the purpose of bringing [the applicant] before the competent legal authority on reasonable suspicion of having committed an offence”? and/or
Article 5 § 1 (b) of the Convention, “in order to secure the fulfilment of any obligation prescribed by law”? If yes, what was the “obligation prescribed by law”?
CASE SPECIFIC QUESTIONS
Application no. 10939/11:
Were there violations of Articles 3 and 13 of the Convention on account of the conditions of detention?
Application no. 13673/13:
1. Assuming Article 5 § 1 of the Convention has been violated, did the applicant have an enforceable right to compensation, as guaranteed by Article 5 § 5?
2. Was there a violation of the applicant’s right of access to a court under Article 6 of the Convention (in relation to the decision of 12 May 2012 by the Town Court, as upheld on 2 August 2012, and the judgment of 19 September 2012 the Town Court, as upheld on 20 December 2012)?
Application no. 69739/14:
1.1. In view of the findings made by the appeal court, was there a violation of Article 5 § 1 of the Convention on account of the sentence that the applicant had served in part (see for comparison Yefimenko v. Russia, no. 152/04, §§ 89-111, 12 February 2013)?
1.2. Assuming Article 5 § 1 of the Convention has been violated as regards the deprivation(s) of liberty from 9 to 11 June 2008, did the applicant have an enforceable right to compensation, as guaranteed by Article 5 § 5?
Application no. 70724/14:
Assuming Article 5 § 1 of the Convention has been violated on account of the deprivation of liberty on 12 October 2011, did the applicant have an enforceable right to compensation, as guaranteed by Article 5 § 5?
Application no. 52440/15:
1. Did the immediate execution of the sentence of administrative detention disclose violations of Article 6 § 2 of the Convention and Article 2 of Protocol No. 7 to the Convention (see, in a similar context, Shvydka v Ukraine, no. 17888/12, §§ 48-55, 30 October 2014)?
2. Was the applicant afforded adequate time and facilities for the preparation of his defence, in particular by way of being able to retain counsel for the trial proceedings, as required by Article 6 § 3 (b) and (c) of the Convention?
APPENDIX
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
54381/08
20/10/2008
Svetlana Ivanovna TSVETKOVA
12/12/1972
Irkutsk
10939/11
28/01/2011
Aleksandr Vitalyevich BGANTSEV
15/03/1958
Volgograd
13673/13
01/02/2013
Pavel Vladimirovich ANDREYEV
12/03/1989
Syktyvkar
69739/14
05/09/2014
Aleksey Olegovich DRAGOMIROV
12/03/1980
Omsk
70724/14
24/10/2014
Viktor Grigoryevich TORLOPOV
13/12/1963
Syktyvkar
52440/15
30/09/2015
Kirill Valentinovich SVETLOV
21/09/1990
Cherepovets
Full & Egal Universal Law Academy