SIDORIN AND OTHERS v. RUSSIA - 41168/07 (Judgment : Article 5 - Right to liberty and security : Third Section Committee) [2018] ECHR 315 (10 April 2018)

In the case of Sidorin and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 20 March 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 41168/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by Russian nationals, Mr Vladimir Vitalyevich Sidorin ('the first applicant"), Mr Sergey Valeryevich Klimov ("the second applicant") and Mr Yuriy Mikhaylovich Chervochkin ("the third applicant"), on 11 September 2007.

2. The third applicant died on 10 December 2007. His mother, Ms Nadezhda Gennadyevna Chervochkina, expressed the wish to pursue the proceedings before the Court.

3. The applicants were represented by Ms O. Mikhaylova and Mr V. Prokhorov, lawyers practising in Moscow. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

4. On 8 June 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1985, 1988 and 1984 respectively. The first and second applicants live in Moscow. The third applicant lived in the Moscow region and died there on 10 December 2007.

6. On 11 March 2007 elections to the Moscow City Duma were held. The applicants came to a polling station at about 10.30 a.m. They started to loudly criticise the elections and were immediately (at about 10.35 a.m.) arrested and brought to the Odintsovo police station.

7. At 3.30 p.m. on the same day the local prosecutor's office opened criminal proceedings against the applicants. It follows from its decision that at 10.30 a.m. on 11 March 2011 at polling station no. 1763 the applicants had unrolled banners, turned on smoke jets and distributed leaflets in an attempt to disturb the work of the polling station. Their unlawful actions had been interrupted by the police.

8. At 6.30 p.m. on the same day the police started to draw up arrest records in respect of the applicants. According to those records the applicants were arrested at the Odintsovo police station. The first applicant was arrested at 6.30 p.m., the third applicant at 7.00 p.m. and the second applicant at 7.30 p.m.

9. On 13 March 2007 the investigator asked the Odintsovo Town Court to remand the applicants in custody.

10. During the hearings on the same day - which lasted from 11.30 a.m. to 1.00 p.m. for the first applicant, from 9.40 a.m. to 10.25 a.m. for the second applicant and from 10.30 a.m. to 11.25 a.m. for the third applicant - the judge heard the prosecutor, the applicants and their counsel. She also read the prosecutor's applications for remand. No other documents were examined at the hearings.

11. On the same day, 13 March 2007, the Odintsovo Town Court ordered that the applicants be remanded in custody. The court found that the prosecutor's applications had been supported by evidence showing the necessity of placing the applicants in custody in view of the risks of absconding, reoffending or interfering with the investigation.

12. On the same day the applicants prepared their preliminary appeal submissions against the detention orders and asked the detention facility administration to dispatch them. It follows from a document issued by the detention facility administration that the first applicant's submissions were dispatched on 14 March 2007. However, the submissions by the second and third applicants were not dispatched until 23 March 2007.

13. On 20 March 2007 counsel for the applicants lodged additional appeal submissions. They complained that they had not still received copies of the detention orders of 13 March 2007. They further argued that the Town Court had disregarded the fact that the offence imputed to the applicants was not a serious one, that they had permanent places of residence, had positive references and studied at a university. On the same day counsel asked for permission to study the case-file. Their request was however rejected because the case file had been taken by the judge who was currently on leave.

14. On 27 March 2007 counsel for the applicants complained before the Odintsovo Town Court that the investigators had denied them access to the case file and had refused to give them copies of, in particular, the prosecutor's applications for remand and of the detention orders.

15. On 29 March 2007 the second applicant received a copy of his detention order. The first and third applicants received copies of their respective detention orders on 30 March 2007. The delay in serving the detention orders on the applicants was due to the fact that the judge had sent the documents to the Mozhaysk detention facility, although the applicants were held at the Odintsovo detention facility.

16. On 3 April 2007 the Odintsovo Town Court found that the investigators had unlawfully restricted counsel's access to the case file and had thereby violated the applicants' defence rights. However, it was not until 6 April 2007 that counsel were ultimately granted access to the case file.

17. On 9 April 2007 counsel lodged additional appeal submissions in which they complained about the belated access to the case file. They further complained that the detention order had been based on insufficient reasons and that no time-limit for detention had been fixed. The evidence showing the existence of the risks of absconding, reoffending or interfering with the investigation to which the Town Court had referred in its detention orders had not been examined during the hearings and the applicants had not been given an opportunity to challenge it. They also complained that the investigator who had lodged the application for remand had acted outside his competence and that the detention orders had been issued more than forty-eight hours after the arrest. Moreover, the applicants' arrest had been unlawful because the arrest records had been drawn with several hours' delay. Finally, the applicants asked to be brought to the courtroom for the appeal hearing.

18. On 11 April 2007 the Moscow Regional Court held an appeal hearing. The applicants were not brought to the courtroom. On the same day the Regional Court quashed the detention orders of 13 March 2007. It found that the detention orders had been based on insufficient reasons. The Town Court had disregarded the facts that the charges were not serious, that the applicants had no criminal record, had a permanent place of residence and studied at a university. There was no evidence that they had threatened witnesses or had attempted to destroy evidence. The Town Court's finding that the applicants might abscond, interfere with the investigation or reoffend had not been therefore supported by relevant facts. The Regional Court ordered the applicants' immediate release.

19. Counsel for the applicants asked the court to give them copies of the appeal decisions so that they could bring it to the detention facility and have the applicants immediately released. Their request was refused.

20. On 12 April 2007 counsel asked for a second time for copies of the appeal decisions. By letter dated 18 April 2007 the President of the Moscow Regional Court informed them that under the domestic law copies were to be sent by post to the detention facility, which had been done on 12 April 2007. Copies of the detention orders could not be given to counsel.

21. On the same day, 12 April 2007, counsel asked the director of the detention facility to release the applicants, referring to the Regional Court's order to release them. However, the director refused to release the applicants because the appeal decisions had not yet been received by the detention facility.

22. The appeal decisions were received by the detention facility on 13 April 2007. On the same day the applicants were released.

II. RELEVANT DOMESTIC LAW

23. Article 92 § 1 of the Code of Criminal Procedure of the Russian Federation ("the CCrP", in force since 1 July 2002) provides that after a suspect is brought to the police station the record of his or her arrest shall be drawn up within three hours.

24. No one may be deprived of their liberty without legal grounds. If a judge does not order a suspect to be remanded in custody as a preventive measure within forty-eight hours of arrest, the suspect should be immediately released (Articles 10 and 94 § 2 of the CCrP).

25. A preventive measure, such as, among others, a remand in custody, may be applied only if there are sufficient grounds to believe that a suspect or an accused might (i) abscond, (ii) reoffend or (iii) obstruct the proceedings (Article 97 of the CCrP). Other circumstances, such as the gravity of a charge, an accused's personality, his age, state of health, family status and occupation, must also be taken into account when deciding on the preventive measure (Article 99 of the CCrP).

26. In its ruling no. 245-O-O of 20 March 2008, the Russian Constitutional Court noted that it had reiterated on several occasions (rulings nos. 14-P, 4-P, 417-O and 330-O of 13 June 1996, 22 March 2005, 4 December 2003 and 12 July 2005 respectively) that a court, when taking a decision on the placement of an individual into detention or on the extension of a period of an individual's detention, was under obligation, inter alia, to calculate and specify a time-limit for such detention.

27. An appellate court's decision to quash a detention order must be enforced immediately (Article 108 § 11 of the CCrP).

THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

28. The Government submitted that the third applicant had died after the introduction of his application and - given that the rights allegedly violated in the present case were of a personal and non-transferable nature - the applicant's mother did not have a sufficient legal interest to justify the examination of the application on his behalf.

29. The Court has differentiated between applications where the direct victim has died after the application was lodged with the Court and those where he or she had already died beforehand. Where the applicant has died after the application was lodged, the Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, and Murray v. the Netherlands [GC], no. 10511/10, § 79, ECHR 2016). When assessing the relatives' standing to pursue the application on behalf of a deceased person, what is therefore important is not whether the rights at issue are transferable to the relatives or heirs but whether the victim made a choice to exercise his or her right of individual application under Article 34 of the Convention by activating the Convention mechanism. It follows that, if an applicant dies after lodging an application with the Court, his or her heirs or close relatives may in principle pursue the application on his or her behalf. By contrast, the situation is different if an application is introduced by close relatives after the death of the direct victim of an alleged violation of the Convention (see Ergezen v. Turkey, no. 73359/10, §§ 28-30, 8 April 2014, with further references).

30. The Court has already recognised the right of the relatives of a deceased applicant to continue with the application in cases concerning alleged violations of the right to liberty and security guaranteed by Article 5 of the Convention (see, for example, Bitiyeva and X v. Russia, nos. 57953/00 and 37392/03, § 92, 21 June 2007; Getiren v. Turkey, no. 10301/03, §§ 60-�62, 22 July 2008; Fartushin v. Russia, no. 38887/09, §§ 31-35, 8 October 2015; Vaščenkovs v. Latvia, no. 30795/12, §§ 25-30, 15 December 2016; and Mitrović v. Serbia, no. 52142/12, §§ 23-26, 21 March 2017).

31. The Court notes that the third applicant in the present case died after lodging his application with the Court. His mother, Ms Nadezhda Gennadyevna Chervochkina, expressed a wish to continue with the application. Taking into account the case-law cited above, the Court considers that the third applicant's mother have sufficient interest in pursuing the application in his stead.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

32. The applicants complained that their arrests and detention had been unlawful and had not been attended by sufficient procedural guarantees. They relied on Article 5 § 1 (c) and 4 of the Convention, which reads as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful ..."

33. The applicants complained, in particular, that the arrest records had been drawn with several hours' delay and contained untrue information about the time and place of the arrest. The applications for custody had been lodged by the investigator who had no competence to do it. The detention orders had been issued more than forty-eight hours after the arrest, in breach of the domestic law. The domestic court had relied in the detention orders on evidence which had not been examined during the hearings and which the applicants had had no opportunity to comment on. The detention orders had been moreover based on insufficient reasons and had not fixed any time-limit for detention. Their appeals against the detention orders had not been examined speedily because of the belated dispatching of the applicants' appeal submissions by the detention facility and because the applicants and their counsel had not been immediately provided with copies of the detention orders or given access to the case file. The applicants had not been brought to the courtroom for the appeal hearings. Lastly, the Regional Court's order to release the applicants had been enforced with two days' delay.

A. Admissibility

34. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

35. The Government submitted that the applicants' arrest and detention had been lawful and attended by sufficient procedural guarantees. Factual and legal grounds for detention required by Article 97 of the CCrP (see paragraph 25 above) had been established. When countersigning the arrest records, the applicants had not made any objections to the time and place of arrest indicated therein. The investigator had had competence to lodge applications for custody. The applicants and their counsel had been present at the first-instance hearing. They had not requested the examination of the documents submitted by the investigator in support of his applications for custody. The Government conceded that the applicants had received copies of the detention orders with a substantial delay due to a logistical error. They argued, however, that the appeal submissions had been examined speedily as soon as they had been received by the Regional Court. After quashing the detention orders, the Regional Court had immediately sent the orders for release to the detention facility, as required by the domestic law. The applicants had been released as soon as the detention facility had received the orders for release.

36. The applicants maintained their claims.

2. The Court's assessment

(a) Article 5 § 1

(i) Detention from 11 to 13 March 2007

37. The Court has already held on many occasions that the absence of an arrest record must in itself be considered a most serious failing, as it has been the Court's constant view that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for his detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Kurt v. Turkey, 25 May 1998, § 125, Reports of Judgments and Decisions 1998-�III; Anguelova v. Bulgaria, no. 38361/97, § 154, ECHR 2002-�IV; Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005; Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006-�III; Belousov v. Russia, no. 1748/02, § 72, 2 October 2008; and Nagiyev v. Azerbaijan, no. 16499/09, §§ 57 and 64, 23 April 2015).

38. It has also found violations in cases where the formalisation of an applicant's status as an arrested criminal suspect was delayed for several hours without a reasonable explanation (see Aleksandr Sokolov v. Russia, no. 20364/05, §§ 70-73, 4 November 2010; Ivan Kuzmin v. Russia, no. 30271/03, §§ 81-84, 25 November 2010; Smolik v. Ukraine, no. 11778/05, §§ 46-48, 19 January 2012; Grinenko v. Ukraine, no. 33627/06, §§ 75-78, 15 November 2012; Venskutė v. Lithuania, no. 10645/08, § 80, 11 December 2012; Rakhimberdiyev v. Russia, no. 47837/06, §§ 35-36, 18 September 2014; and Birulev and Shishkin v. Russia, nos. 35919/05 and 3346/06, §§ 56-57, 14 June 2016 ).

39. It finds that the present case constitutes another example of this practice. It follows from the material in the case file that the applicants were taken into custody by the police officers at about 10.30 a.m. on 11 March 2007 at a polling station and then brought to the Odintsovo police station. The arrest records indicate that the applicants were arrested at 6.30 p.m. (the first applicant), 7.00 p.m. (the third applicant) and 7.30 p.m. (the second applicant) at the Odintsovo police station. It follows that although the records were eventually prepared eight to nine hours after the arrest, the place and time of the arrest listed therein were at variance with the actual place and time of the applicants' apprehension. Several hours of the applicants' detention on 11 March 2007 at the Odintsovo police station were therefore not recorded or acknowledged in any procedural form. The lack of a proper record of the applicants' arrest is therefore sufficient for the Court to hold that their detention during that period was contrary to the requirements implicit in Article 5 § 1 of the Convention for the proper recording of deprivations of liberty.

40. The failure to properly record the exact time of the applicants' deprivation of liberty also resulted in that the first and third applicants had been detained without a court order longer than the forty-eight-hour time-�limit, contrary to domestic law requirements (see paragraph 24 above) and the "lawfulness" guarantee of Article 5 § 1 of the Convention (see Birulev and Shishkin, cited above, §§ 58-60).

41. In view of the foregoing, the Court concludes that there has been a violation of Article 5 § 1 of the Convention on account of each applicant's unrecorded detention on 11 March 2007, and on account of the consequent failure to respect the statutory time-limit for permissible detention without a court order in respect of the first and third applicants.

(ii) Detention from 13 March to 11 April 2007

42. The Court notes that in its decisions of 13 March 2007 the Odintsovo Town Court authorised the applicants' placement in custody. It also provided certain reasons for its decisions (see paragraph 11 above). At the same time, the Town Court remained silent as to how long the applicants should remain in detention.

43. The Court has earlier found, in similar circumstances, that the failure to clearly specify a time-limit when ordering an individual's placement in, or extending the period of, detention on remand, at any stage of criminal proceedings, was contrary to the applicable rules of Russian criminal procedure. It has also held that a clearly defined time-limit for detention was an essential guarantee against arbitrariness, no matter how short a period of one's detention on remand might be. The absence of a specific time-limit in the decision ordering an individual's detention amounted to a "gross and obvious irregularity" capable of rendering the detention pursuant to that order arbitrary and therefore "unlawful" within the meaning of Article 5 § 1 (see Fedorenko v. Russia, no. 39602/05, §§ 47-51, 20 September 2011).

44. The Court sees no reason to reach a different conclusion in the present case. Accordingly, there has been a violation of Article 5 § 1 of the Convention on account of the failure to specify a time-limit for each applicant's detention.

(iii) Detention from 11 to 13 April 2007

45. On 11 April 2007 the Regional Court ordered the applicants' immediate release. However, it was not until the next day that the release order was dispatched by post to the detention facility where the applicants were held. As a consequence, they were not released until 13 April 2007.

46. The Court reiterates in this connection that it must scrutinise complaints of delays in the release of detainees with particular vigilance (see Nikolov v. Bulgaria, no. 38884/97, § 80, 30 January 2003). Some delay in implementing a decision to release a detainee is understandable and often inevitable in view of practical considerations relating to the running of the courts and the observance of particular formalities. However, the national authorities must attempt to keep it to a minimum (see Quinn v. France, 22 March 1995, § 42, Series A no. 311; Giulia Manzoni v. Italy, 1 July 1997, § 25 in fine, Reports, 1997-�IV; K.-F. v. Germany, 27 November 1997, § 71, Reports, 1997-�VII; and Mancini v. Italy, no. 44955/98, § 24, ECHR 2001-�IX). The Court reiterates that administrative formalities connected with release cannot justify a delay of more than several hours (see Nikolov, cited above, § 82). It is for the Contracting States to organise their legal system in such a way that their law-enforcement authorities can meet the obligation to avoid unjustified deprivation of liberty (see Shukhardin v. Russia, no. 65734/01, § 93, 28 June 2007, and Matyush v. Russia, no. 14850/03, § 73, 9 December 2008).

47. In the instant case the applicants remained in detention for two days after the Regional Court's decision ordering their release. Having regard to the prominent place which the right to liberty holds in a democratic society, the respondent State should have introduced appropriate legislation and deployed all modern means of communication of information to keep to a minimum the delay in implementing the decision to release the applicants as required by the relevant case-law (see, for similar reasoning, Shukhardin, cited above, § 94, and Matyush, cited above, § 74). The Court is not satisfied that the Russian officials complied with that requirement in the present case.

48. The Court finds that the applicants' continued detention after 11 April 2007 was clearly not covered by sub-paragraph (c) of paragraph 1 of Article 5 and did not fall within the scope of any other of the sub-�paragraphs of that provision. There has accordingly been a breach of Article 5 § 1 in this respect.

(b) Article 5 § 4

49. The Court finds that the applicants' complaints under Article 5 § 4 should be regarded as having been absorbed by the issues related to Article 5 § 1 concerning the same period of detention. Therefore, given the findings of the unlawfulness of the applicants' detention under Article 5 § 1, examination of the complaints under Article 5 § 4 has become devoid of purpose.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

51. The applicants claimed 8,000 euros (EUR) each in respect of non-�pecuniary damage.

52. The Government submitted that the amounts claimed were excessive.

53. The Court awards the applicants EUR 7,500 each in respect of non-�pecuniary damage.

54. The amount awarded to the third applicant should be paid to his mother, Ms Nadezhda Gennadyevna Chervochkina.

B. Costs and expenses

55. The applicants claimed that they had had no money with which to pay the lawyers who had therefore worked pro bono. They claimed EUR 5,000 to ensure remuneration for their lawyers who had spent twenty-�five hours on their case in the domestic proceedings and before the Court.

56. The Government claimed that the legal services had been rendered pro bono and should not therefore give rise to compensation.

57. Taking into account the absence of any supporting documents or costs actually incurred by the applicants, the Court cannot grant the claim. It therefore rejects the claim in full.

C. Default interest

58. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there is no need to examine the complaint under Article 5 § 4 of the Convention;

4. Holds

(a) that the respondent State is to pay the first and second applicants and the third applicant's mother, Ms Nadezhda Gennadyevna Chervochkina, within three months EUR 7,500 (seven thousand five hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 10 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıBranko Lubarda
Deputy RegistrarPresident

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You are here: BAILII >> Databases >> European Court of Human Rights >> SIDORIN AND OTHERS v. RUSSIA - 41168/07 (Judgment : Article 5 - Right to liberty and security : Third Section Committee) [2018] ECHR 315 (10 April 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/315.html Cite as: CE:ECHR:2018:0410JUD004116807, ECLI:CE:ECHR:2018:0410JUD004116807, [2018] ECHR 315