LAVRICHENKO v. RUSSIA - 10917/06 (Judgment : Article 5 - Right to liberty and security : Third Section Committee) [2020] ECHR 28 (14 January 2020)

In the case of Lavrichenko v. Russia ,

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

Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Stephen Phillips , Section Registrar ,

Having deliberated in private on 3 December 2019 ,

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

PROCEDURE

1 . The case originated in an application (no. 10917/06) 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 two Russian nationals, M r s Yelena Vladimirovna Lavrichenko and Mr Andrey Yevgenyevich Lavrichenko ("the applicants"), on 7 February 2006 .

2 . The Russian Government ("the Government") were represented by Mr G. Matyushkin, the former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin .

3 . On 3 April 2013 notice of the application was given to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicants, Mrs Yelena Vladimirovna Lavrichenko ("the first applicant") and Mr Andrey Yevgenyevich Lavrichenko ("the second applicant"), are Russian nationals who were born in 1958 and 1986 respectively and live in Novosibirsk. The second applicant is the first applicant ' s son .

5 . The facts of the case, as submitted by the applicants, may be summarised as follows.

A . Criminal proceedings against the first applicant

6 . As of 7 April 2004 the first applicant was suspected of a number of economic offences.

1. The first applicant ' s enforced attendance for questioning as a witness

7 . On 30 March 2005 an investigator ordered that the first applicant should be forcibly brought before her to be question ed as a witness in unrelated criminal proceedings.

8 . On 1 April 2005 the police brought the firs t applicant before the investigator , pursuant to the order of 30 March 2005. After the questioning, t he first applicant was free to go.

2. The first applicant ' s second enforced attendance for questioning and subsequent arrest

9 . During the questioning on 1 April 2005 the investigator had requested that the first applicant appear on 11 April 2005 to be questioned about the criminal case against her.

10 . On 11 April 2005 the first applicant ' s legal counsel arrived to assist her during the questioning. As he saw that there were policemen with the investigator, he called the first applicant and told her that she was going to be arrested. F ear ing unlawful arrest , the first applicant decided not to go to the questioning.

11 . On 21 April 2005 the investigator charged the first applicant in her absence . On 22 April 2005 the investigator ordered that she should not leave town without the investigator ' s approval. The first applicant was not informed of th os e decision s .

12 . On 25 April 2005 the investigator ordered that the first applicant should be forcibly taken to the premises of the Novosibirsk Investigative Committee to be questioned as an accused on 26 April 2005 at 3 p.m. , and issued a search warrant in respect of her, thus her name was put on a wanted list.

13 . On 26 April 2005 at 3.08 p.m. police officers apprehended the first applicant in the Kolyvanskiy District Court of the Novosibirsk Region , 50 km away from Novosibirsk. The police officers served her with the investigator ' s order for her enforced attendance for questioning on the premises of the Novosibirsk Investigative Committee. However, she was taken directly to a temporary detention facility ( " the IVS " ) of the Dzerzhinskiy d istrict p olice station of Novosibirsk.

14 . The investigator went to the IVS and detained the first applicant for forty- eight hours while she appl ied for court authorisation of her pre-trial detention . The record of the first applicant ' s arrest was drawn up at 5.50 p.m .

15 . On 27 April 2005 at 4.10 p.m. the investigator informed the first applicant of the charges against her and questioned her as a suspect in the presence of her legal counsel.

3. The District C ourt ' s refusal to detain the first applicant , and her release

16 . On 28 April 2005 at 12 noon the Tsentralniy District Court of Novosibirsk ("the District Court") dismissed the investigator ' s application for the first applicant ' s detention as unfounded . The District C ourt noted that the first applicant had a permanent place of residence and , as the head of three commercial companies, had a permanent occupation. She had not been properly informed of the obligation not to leave town. The District C ourt held that the investigator had not properly sent the summonses for the first applicant to appear on 11 and 18 April 2005 . The District C ourt also dismissed as unsubstantiated an argument raised by the investigator that the police had not found the first applicant in any of her apartments. In addition, the court noted that the criminal case against the first applicant had been closed on two occasions owing to a lack of corpus delicti . The District C ourt considered that the first applicant had not been hiding from the investigati ng authorities , and rejected the application for her to be placed in detention .

17 . A fter the District Court had pronounced its decision, the police took the first applicant back to the IVS , where she spent another three hou rs in a cell before being release d at 2.59 p.m.

4 . The first applicant ' s attempts to challenge the lawfulness of her deprivation of liberty

18 . Referring to Article 125 of the Russian Code of Criminal Procedure , the first applicant challenged the actions of the investigator and the police men before the District C ourt. She complained, inter alia , that forcibly bringing her before the investigator as a witness on 1 April 2005 had been unlawful , because the investigator had not summoned her previously. She also complained about her ar rest and detention on 26 and 27 April 2005. The investigator ' s orders for her enforced attendance and a search in respect of her had been unlawful , since she had had a permanent place of residence ; the investigator had sent no summons and she had not been hiding from the investigati ng authorities, as established by the court decision of 28 April 2005. Lastly , the first applicant complained about her belated release on 28 April 2005. She argued that her constitutional right to liberty had been violated by the above measures.

19 . By final decisions of 8 August, 23 November and 7 December 2005 the Novosibirsk Regional Court refused to examine the first applicant ' s complaints on the merits. The c ourt found that her complaints could be examined during the criminal proceedings against her , as by then her case had been sent for trial .

5. Outcome of the criminal proceedings against the first applicant

20 . The charges against the first applicant were joined to two criminal cases. As regards the first criminal case, within the framework of which she had been detained from 26 to 28 April 2005, on 8 February 2010 the Novosibirsk Regional Court closed the case on exonerating grounds for lack of corpus delicti , and reiterated the first applicant ' s right to rehabilitation. It appears that on 11 April 2013 an action initiated by the first applicant for compensation in respect of damage caused by her unlawful criminal prosecution was allowed in part .

21 . On 5 April 2010 the Novosibirsk Regional Court convicted the first applicant in respect of one charge in the second criminal case against her , and gave her a suspended sentence .

B . Other dispute s

22 . The applicants were involved in a housing dispute. The first applicant also participated in various sets of civil proceedings.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A . The Code of Criminal Procedure

23 . In accordance with the Code of Criminal Procedure ("the CCrP"), a ny witness is obliged to appear for questioning when summoned by an inquirer (an officer involved in investigative activities ) , an investigator or a court (Article 56 § 6 (1)).

24 . If a suspect, an accused, a witness or a victim does not obey a summons to appear without a good reason and his or her location is known, the investigator may order that he or she be forcibly brought before the relevant authority by the police (Article 113). If the location of a suspect or an accused is unknown, the investigator may order the police to search for him or her . The accused, if found, may be arrested and placed in detention if there are reasons for such a measure which are established by law (Article 210).

25 . A court decision dismissing an investigator ' s application for detention shall be executed immediately (Article 108 § 8).

26 . Article 125 provides that a decision , action or lack of action on the part of an inquirer, investigator or prosecutor which has affected the constitutional rights or freedoms of parties to criminal proceedings may be subject to judicial review . Such judicial review normally takes place at the pre-trial stage of criminal proceedings.

B . Case-law of the Constitutional Court of Russia and the Supreme Court of Russia

27 . On several occasions t he Constitutional Court has indicated that it was up to a court to decide in each individual case whether a particular action by an investigating authority ha d affected an applicant ' s rights to the extent that it would be impossible to remedy the alleged violation at a later stage (at trial) (ruling no. 5- P of 23 March 1999, decision no . 298- O of 21 December 2001) . If so, an action under Article 125 of the CCrP in proceedings parallel to the ongoing criminal trial should be available.

28 . I n paragraph 9 of Ruling no. 1 of 10 February 2009 the Plenary Supreme Court held that the actions of an investigating authority could be challenged under Article 125 of the CCrP only during the pre-trial stage. If a case had already been sent to a court for trial, the judge should declare the complaint inadmissible and explain to the complainant that he or she could raise the complaint before the relevant trial court. However, if the complaint concern ing lawfulness or well-foundedness of such actions could not be assessed by the trial court, the complaint should not be transferred to the court, and should be examined separately.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

29 . The first applicant complained about her enforced attendance on 1 and 26 April 2005, her detention from 26 to 28 April 2005 and her belated release on 28 April 2005. She referred to Article 5 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:

...

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

... "

A. Admissibility

30 . The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The first applicant ' s enforced attendance as a witness on 1 April 2005

( a ) Submissions of the parties

31 . The Government provided copies of summons es dated 15 and 29 March 2005 , and two reports dated 30 March 2005 written by the police officer who had been in charge of delivering the summons es to the first applicant.

32 . Relying on those documents , the Government asserted that on 15 March 2005 the investigator had issued a summons for the first applicant to appear on 16 March 2005 at 5 p.m. for questioning. On the same day t he summons had been received and signed by a Mr V. , whom the Government considered to be the first applicant ' s lawyer. According to the first police report of 30 March 2005 , Mr V. had stated that he had given the summons to the first applicant ' s son on 16 March 2005.

33 . After the first applicant had failed to appear on 16 March 2005, on 29 March 2005 the investigator had issued another summons for her to appear for questioning on 1 April 2005. According to the second report of the police officer, o n 30 March 2005 he had gone to the first applicant ' s residential address, but no one had opened the door, although her car had been downstairs and a neighbour had thought that she was at home . The police officer had left the summons in the keyhole of the first applicant ' s door . On the same day the investigator had ordered the first applicant ' s enforced attendance as a witness.

34 . On 1 April 2005 at 10.15 a.m. the police had found the first applicant, read out the order about her enforced attendance , and then taken her to the police station. The questioning had lasted only fifteen minutes , from 10.45 a.m. to 11 a.m. , as the first applicant had exercised her right to remain silent.

35 . The Government considered that the first applicant ' s enforced attendance for questioning as a witness had constituted a restriction on her freedom of movement rather than deprivation of liberty. The Government relied on the fact that : the first applicant had spent one hour in total with the police officers and the investigator ; she had not been ha ndcuffed; no physical force had been used on her; and she had not been placed in an area for detainees. The restriction on her freedom of movement had been necessary in a democratic society.

36 . In the alternative , the Government submitted that the first applicant ' s detention had been lawful and in compliance with the requirements of Article 5 of the Convention . In particular, the first applicant had failed to voluntarily comply with her obligation to appear as a witness. She had been taken to the police station in accordance with the relevant police instructions , and she had been escort ed there to be questioned, not for an y other purpose (contrast , for instance, Khodorkovskiy v. Russia , no. 5829/04, § 142, 31 May 2011, and Iliya Stefanov v. Bulgaria , no. 65755/01, § 74 , 22 May 2008 ).

37 . The first applicant claimed that Mr V. had never represented her and had not even been admitted to the Bar . Referring to the documents submitted by the Government , she also asserted that the summons of 15 March 2005 had been sent to one address , but she had been forcibly taken from another flat , a flat where she had live d for twenty years. She therefore claimed that she had not been properly su mmoned for questioning , and sh ould not have been subjected to enforced attendance.

( b ) The Court ' s assessment

38 . The Court notes that, on the basis of the facts as described by the parties, the first applicant could not have avoid ed going with the police officers who took her to the investigator. Given the element of coercion in her enforced attendance (see Lazariu v. Romania , no. 31973/03 , § 100, 13 November 2014, and Rozhkov v. Russia (no. 2) , no. 38898/04, § 79 , 31 January 2017 , with further references ), the Court find s that she was deprived of her liberty for the purposes of Article 5 of the Convention.

39 . The Court next has to ascertain whether the first applicant ' s deprivation of liberty complied with the requirements of Article 5 of the Convention. The Court notes that , according to the Government (see paragraph 36 above ), the legal basis for her deprivation of liberty was the investigator ' s order of 30 March 2005 for her to be forcibly brought for questioning following her failure to comply with the obligation to appear when summoned. T hus, her deprivation of liberty might potentially fall under Article 5 § 1 (b) of the Convention (see, for instance, Iliya Stefanov , cited above , § 74, and Osypenko v. Ukraine , no. 4634/04, § 57, 9 November 2010 , with further references ).

40 . The Court reiterates that detention is authorised under Article 5 § 1 (b) only to "secure the fulfilment" of an obligation prescribed by law. It follows that there must already be an unfulfilled obligation incumbent on the person concerned , and that the detention must be for the purpose of securing the fulfilment of that obligation, and must not be punitive in nature . As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see Osypenko , cited above) . The obligation must be of a specific and concrete nature ( see Ciulla v. Italy , 22 February 1989, § 36, Series A no. 148 ) .

41 . The Court will proceed on the assumption that Russian law did indeed oblig e a witness , suspect or accused person to appear before an investigating officer (see paragraph 24 above). Next, the Court has to determin e whether th at obligation was incumbent on the first applicant , and whether it c ould be considered sufficiently "specific and concrete" for the purposes of Article 5 § 1 (b) (see Rozhkov (no. 2) , cited above, § 92, with further references) . Thus, prior to her arrest, the first applicant must have failed to fulfil an obligation to appear before an investigating officer. In cases where this type of obligation is at issue, it is sufficient if, having received a summons, an applicant did not appear and did not provide a substantiated and valid excuse (see Rozhkov (no. 2) , cited above, § 93).

42 . The Court observes that the police did take steps to summon the first applicant (contrast Rozhkov ( no. 2 ) , cited above, § § 83 and 94 ). However, they provided no evidence indicating that s he (and not her son or Mr V.) had actually been notified of the summons , nor did they allege th at this was the case (contrast Lazariu , cited above, §§ 95 and 101) . There is also nothing to show that , despite the requir ement of the national law (see paragraph 24 above), the authorities ever ascertained whether the first applicant had had a "good reason" not to appear. Furthermore, as the facts also indicate , the police managed to find the first applicant and bring her before the investigator within a day of the order for en forced attendance being issued. Thus, the Court is not persuaded that the police could not just as effectively have fou nd the first applicant to summon her properly . Accordingly, given the lack of evidence that the first applicant was notified of the summon s es, the Court finds that her obligation to appear before an investigating officer was not sufficiently "concrete and specific". It follows that her deprivation of liberty on 1 April 2005 was not justified under the second limb of Article 5 § 1 (b).

43 . Accordingly, the Court finds a violation of Article 5 § 1 (b) of the Convention on account of the first applicant ' s detention on 1 April 2005.

2. The first applicant ' s arrest on 26 April 2005 and detention for forty- eight hours from 26 to 28 April 2005

( a ) Submissions of the parties

44 . The Government noted that the first applicant had failed to comply with the summons of 1 April 2005 to appear for questioning on 11 April 2005. They considered that her fear of arrest c ould not j ustif y her failure to fulfil her obligation to attend the questioning . After 11 April 2005 she had not attempt ed to contact the investigator. On 25 April 2005 the investigator had ordered her en forced attendance. On the next day , 26 April 2005, at 3.08 p.m. the police had informed her of the order and taken her to the police station.

45 . The Government considered that the first applicant ' s detention for forty-eight hours had been lawful. On 26 April 2005 at 5.50 p.m. the investigator had drawn up the record of her arrest and ordered her detention for forty-eight hours while a court examine d the application for her pre-trial detention . After the District Court had refused the investigator ' s application to detain the first applicant at the hearing on 28 April 2005 , she had been released on the same day at about 3 p.m. Thus, her detention had not exceeded the set limit of forty-eight hours. The fact that the District Court had rejected the investigator ' s application for her pre-trial detention did not affect the lawfulness of her detention for forty-eight hours , as pre-trial detention and detention for forty-eight hours were two different measures. Thus, the Government concluded by stating that the first applicant ' s detention from 26 to 28 April 2005 had been lawful and had not breached Article 5 of the Convention.

46 . The first applicant claimed she had not been aware of the investigator ' s decisions to charge her and impose on her the obligation that she not leave town. She believed that those decisions had been issued to justify the investigator ' s attempt to place her in pre-trial detention .

47 . The first applicant considered t hat her detention from 26 to 28 April 2005 had been unlawful because the criminal case in question had eventually been terminated on exonerating grounds.

( b ) The Court ' s assessment

48 . T he parties do not dispute, and t here is no reason to doubt , that from 26 to 28 April 2005 the first applicant was deprived of her liberty for the purposes of Article 5 of the Convention.

49 . The Court observes that, in contrast with the first instance of enforced attendance for questioning on 1 April 2005 , on 26 April 2005 the first applicant was not taken to the investigator, but to a detention centre. When the investigator arrived at the detention centre she officially detained the first applicant for forty - eight hours , with a view to apply ing for court authorisation of her pre-trial detention . The first applicant was not questioned until the next day, that is about twenty-four hours after her arrest. Therefore, the Court finds that the first applicant ' s detention during that period was not required in order to fulfil the obligation that she appear for questioning (see Farhad Aliyev v. Azerbaijan , no. 37138/06, § 163, 9 November 2010 ). Accordingly, the Court concludes that the domestic authorities considered that the first applicant ' s arrest was "for the purpose of bringing [ her ] before the competent legal authority" within the meaning of Article 5 § 1 (c) . It remains to be seen whether her arrest on 26 April 2005 and her subsequent detention for forty - eight hours complied with the requirements of Article 5 § 1 (c) of the Convention.

50 . The Court reiterates that a period of detention will in principle be lawful if carried out pursuant to a court order. A subsequent finding that a court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Convention organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by appellate courts to have been based on errors of fact or law (see Benham v. the United Kingdom , judgment of 10 June 1996, Reports 1996-III, § 42; see also Bozano v. France , judgment of 18 December 1986, Series A no. 111, § 55 , for an example of police detention of an applicant whose deportation order was later quashed).

51 . The Court considers that the mere fact that the criminal case against the first applicant was eventually terminated on exonerating grounds did not in itself affect the lawfulness of her detention from 26 to 28 April 2005. For the assessment of compliance with Article 5 § 1 of the Convention , the basic distinction has to be made between ex facie invalid detention orders - for example, given by a court in excess of jurisdiction or where the interested party did not have proper notice of the hearing - and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court (see Khudoyorov v. Russia , no. 6847/02, § 129, ECHR 2005 - X (extracts), with further references).

52 . In the present case , it was not alleged that the investigator had acted in excess of her powers in order ing the first applicant ' s detention for forty - eight hours while a court decided on the preventive measure of pre - trial detention . Furthermore, the first applicant ' s detention cannot be said to have been arbitrary , as, among other things , the investigator relied on her failure to appear for questioning o n 11 April 2005. Lastly , the first applicant ' s detention appears to have been in accordance with the procedure prescribed by national law : the record of her arrest was drawn up within two hours of her being initial ly apprehen ded (see, by contrast, Rozhkov (no. 2) , cited above, § 86); and the national court examined the investigator ' s application for her pre-trial detention within the relevant forty-eight-hour time- limit. The first applicant herself did not allege that there had been any breaches of the procedure , or that the relevant legislation had been incorrectly applied .

53 . In these circumstances, the Court finds that there was no violation of Article 5 § 1 (c) of the Convention on account of the first applicant ' s arrest and detention from 26 to 28 April 2005.

3 . The first applicant ' s belated release on 28 April 2005

( a ) Submissions of the parties

54 . The Government acknowledged that there had been no grounds for the first a pplicant ' s detention between the conclusion of the court hearing of 28 April 2005 , which had taken place at about 12 noon , and her release at 3 p.m . Her three-hour period of detention had been in breach of the requirements of Article 5 § 1 of the Convention .

55 . The first applicant noted that the Government had admitted that her complaint about the belated release was well-founded .

( b ) The Court ' s assessment

56 . T he Court reiterates that 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 this to a minimum. Administrative formalities connected with release cannot justify a delay of more than a few hours (see, for example, Ruslan Yakovenko v. Ukraine , no. 5425/11, § 68, ECHR 2015, with further references ).

57 . In the present case , the Court was not provided with justification for the three-hour delay in releasing the first applicant . There is nothing to suggest that there were any particular difficulties in securing her immediate release as required by national law (see paragraph 25 above) (see Butkevich v. Russia , no. 5865/07 , § 67, 13 February 2018 ). The Court notes that the Government also acknowledged that the first applicant ' s detention for th ose three hours had been unlawful.

58 . There has therefore been a violation of Article 5 § 1 of the Convention on account of the first applicant ' s delayed release .

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

59 . The first applicant complained about the national courts ' refusal to examine her complaints of unlawful detention. She referred to Article 5 § 4 and Article 6 § 1 of the Convention , the relevant parts of which provide as follows:

Article 5 § 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."

Article 6

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

A . Submissions of the parties

60 . T he Government admitted that the first applicant had not had a right to judicial review , in breach of the requirements of Article 5 § 4 of the Convention. The courts had erred in their interpretation of national law in refus ing to examine her complaints of unlawful detention on the grounds that the criminal case against her had already been sent for trial . The Government referred to R uling no. 1 of the Supreme Court of 10 February 2009 (see paragraph 28 28 above ) , which had confirmed that courts were obliged to examine such complaints regardless of whether a criminal trial was ongoing if they could not be examined during the trial. The CCrP did not provide for a trial court having jurisdiction to assess the lawfulness of en forced attendance or detention. Therefore, the investigator ' s actions could not have been examined by the trial court. Consequently, the separate proceedings concerning the first appli cant ' s complaints under Article 125 of the CCrP should not have been terminated without being examin ed .

61 . The first applicant submitted that the Government had acknowledged that there had been a breach of her right to judicial review because the domestic courts had wrongly interpreted the national law in refusing to examine her complaints under Article 125 of the CCrP of unlawful deprivation of liberty . She further claimed that in any event the judicial review procedure under Article 125 of the CCrP had not been effective for the purposes of examin ing the lawfulness of her detention , because it had become available to her only after her release , and thus it could not satisfy the requirements of Article 5 § 4 of the Convention .

B . The Court ' s assessment

1. Scope of the case

62 . The Court notes that the proceedings under Article 125 of the CCrP were conducted after the first applicant ' s re lease, which means that Article 5 § 4 was no longer applicable (see Reinprecht v. Austria , no. 67175/01, § 51, ECHR 2005 - XII). However, t his circumstance in itself is not an obstacle to the examination of the application under Article 6 § 1 of the Convention , which the first applicant also relied on (see Lazoroski v. "the former Yugoslav Republic of Macedonia" , no. 4922/04, § 66, 8 October 2009).

63 . The right to liberty being a "civil" right, Article 6 § 1 , under its civil limb, applie s to proceedings related to lawfulness of deprivation of liberty (see, for instance, Aerts v. Belgium , 30 July 1998, § 59, Reports of Judgments and Decisions 1998 - V; Laidin v. France (no. 2) , no. 39282/98, §§ 75-76, 7 January 2003 , and Shulepova v. Russia , no. 34449/03, § 59, 11 December 2008). The Court finds that the same consideration appl ies to the proceedings at issue here, which concerned the lawfulness of the investigator ' s order to detain the first applicant for forty-eight hours , and thus the determination of her civil right to liberty. Article 6 § 1 is therefore applicable under its civil head.

2. Admissibility

64 . The Court notes that this complaint 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.

3. Merits

65 . The Court observes that the first applicant attempted to complain of the un lawfulness of several instances of detention under Article 125 of the CCrP , which allow ed the actions of investigators , among other people, to be challenged . However, the national courts terminated those proceedings on the grounds that the criminal case against her had been sent for trial by that point, and that therefore her complaints should be examined by the trial court.

66 . The Court notes that , according to the Government , the trial court had no jurisdiction to declare the investigator ' s decisions about enforced attendance and the first applicant ' s detention unlawful . Therefore, the national courts ' refusal to examine the first applicant ' s complaints under Article 125 of the CCrP on the grounds that they had been improperly filed , and their suggestion that she resubmit them to the trial court , essentially deprived her of an effective right of access to a court. The Government ' s assessment is supported by the Constitutional Court of Russia ' s position on the matter (see paragraph 27 above ) . The Court sees no reason to disagree with the above interpretation of national laws.

67 . The Court concludes that the first applicant was deprived of the right of access to a court to contest the lawfulness of her detention. There has accordingly been a violation of Article 6 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

68 . The first applicant complained that she had been unable to obtain compensation for her unlawful detention. She relied on Article 5 § 5 of the Convention , the relevant part of which provides as follows:

"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

A. Submissions of the parties

69 . The Government submitted that the first applicant would have been entitled to compensation only if her detention had been found to be unlawful. As the national courts had refused to examine her complaints, she had had no opportunity to have the detention declared unlawful and consequently to apply for compensation in that regard . Given the above , the Government conceded that the first applicant ' s rights under Article 5 § 5 of the Convention had not been respected.

70 . The first applicant insisted that she had had no enforceable right to compensation in respect of her unlawful detention.

B. The Court ' s assessment

71 . T he Court reiterates that in accordance with Russian laws , an award in respect of pecuniary or non-pecuniary damage may be made against the State only if detention is found to have been unlawful in domestic proceedings (see Chuprikov v. Russia , no. 17504/07, § 98, 12 June 2014) . In the present case , the Court has found violations of Article 5 § 1 of the Convention in respect of the first appli cant ' s enforced attendance on 1 April 2005 and her b elated release on 28 April 2005. No domestic court found those instances of detention unlawful. The first applicant therefore had no grounds to claim compensation for those two instances of detention in breach of Article 5 § 1 of the Convention ( see Chuprikov , cited above ).

72 . Therefore, the first applicant did not have an enforceable right to compensation for her enforced attendance on 1 April and her belated release on 28 April 2005 as required under Article 5 § 5 of the Convention. There has accordingly been a violation of this provision.

IV . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

73 . Lastly, the applicant s raised a number of complaints in relation to various sets of domestic proceedings. The Court has examined these complaints as submitted by the applicants. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do 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 th e application is manifestly ill - founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

74 . 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."

75 . The first applicant claimed 30,000 euros (EUR) in respect of non - pecuniary damage.

76 . The Government submitted that the finding of a violation would constitute sufficient just satisfaction.

77 . The Court awards the first applicant EUR 5,000 in respect of non - pecuniary damage , plus any tax that may be chargeable .

78 . 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 complaints concerning the first applicant ' s unlawful detention, right to judicial review and right to compensation admissible , and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 5 § 1 of the Convention on account of the first applicant ' s enforced attendance on 1 April 2005 and belated release on 28 April 2005 ;

3 . Holds that there has been a violation of Article 6 § 1 of the Convention on account of the first applicant ' s lack of access to a court which would assess the lawfulness of her deprivation of liberty ;

4. Holds that there has been a violation of Article 5 § 5 of the Convention on account of the first applicant having no enforceable right to compensation for her unlawful detention;

5 . Holds

(a) that the respondent State is to pay the first applicant, within three months , EUR 5 , 000 ( five thousand euros) 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 , plus any tax that may be chargeable;

(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;

6 . Dismisses the remainder of the applicant s ' claim for just satisfaction.

Done in English, and notified in writing on 1 4 January 2020 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Georgios A. Serghides
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LAVRICHENKO v. RUSSIA - 10917/06 (Judgment : Article 5 - Right to liberty and security : Third Section Committee) [2020] ECHR 28 (14 January 2020) URL: http://www.bailii.org/eu/cases/ECHR/2020/28.html Cite as: [2020] ECHR 28, ECLI:CE:ECHR:2020:0114JUD001091706, CE:ECHR:2020:0114JUD001091706