The ECHR found a violation of the requirements of Article 5 of the Convention in respect of certain applicants, Articles 3 and 13 of the Convention in relation to the second applicant, Article 2 of Protocol No. 7 to the Convention in respect of the sixth

Заголовок: The ECHR found a violation of the requirements of Article 5 of the Convention in respect of certain applican Сведения: 2018-11-26 07:03:52

ECHR ruling of April 10, 2018 in the case of Tsvetkova and Others (Tsvetkova and Others) v. the Russian Federation (application No. 54381/08 and others).

In 2008, complainants were assisted in preparing applications. Subsequently, the applications was merged and communicated to the Russian Federation.

The case has successfully reviewed applications about the procedures for the use of domestic procedures of detention, administrative delivery and detention. The case has violated the requirements of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of some applicants, Articles 3 and 13 of the Convention in respect of the second applicant, Article 2 of Protocol No. 7 to the Convention in respect of the sixth applicant. There were no violations of Article 6 § 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the sixth applicant.


THE CIRCUMSTANCES OF THE CASE


The applicants underwent at the domestic level the procedures for the delivery, administrative detention and arrest according to the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Administrative Code of the Russian Federation), which allows law enforcement officers to take such measures. The Code of Administrative Offenses of the Russian Federation defines the procedure for delivering an individual to the department of internal affairs as a procedure by which the offender is forced to follow a competent officer of the internal affairs agencies in order to draw up a protocol on an administrative offense when this cannot be done on the spot. In exceptional cases related to the need for a proper and immediate consideration of an administrative case or the enforcement of any punishment imposed for administrative offenses, the person concerned may be placed in administrative detention. Decisions on the appointment of an administrative arrest must be executed immediately after the judge has issued the relevant decision.

The applicant Tsvetkova, who was taken to the internal affairs department on suspicion of theft from the store (and subsequently charged against her), argued that in violation of the requirements of Article 5 § 1 of the Convention, there were no references to grounds or reasons for her detention.

The applicant Bantsev was accused of using obscene language in the workplace. He was taken to the department of internal affairs, where he was placed under administrative detention, detained, found guilty of disorderly conduct and sentenced to arrest for a period of five days. During the consideration of the application by the European Court, the applicant argued that the only reason and legal basis for his detention were indicated in the administrative detention report and sounded like "for decision". Nothing prevented an employee of the internal affairs agencies from drawing up a protocol on the spot, as required by the Administrative Code of the Russian Federation.

The applicant, Andreev, was taken to the department of internal affairs on suspicion of evading the obligatory military service, but he was charged with another: failure to pay a fine for violation of traffic rules. After drawing up a protocol on administrative violation, he was not released, but was placed in a detention facility for reasons that were not indicated, and sentenced him to two days of arrest for an offense. In the course of the examination of his application by the European Court, the applicant submitted that there were no legal grounds or exceptional circumstances for his detention.

The applicant Dragomirov was detained for being in a state of intoxication and an untidy appearance in a public place and taken to the internal affairs department. Subsequently, the applicant was found guilty of committing an administrative offense and sentenced to five days of administrative arrest. After an appeal (but already after the applicant had served part of the sentence), the decision on administrative arrest was canceled due to serious violations in relation to the evidence of the prosecution.

The applicant Torlopov took part in a demonstration near the courthouse. The applicant was taken to the police station and placed in administrative detention, although he was subsequently released. During the consideration of his application before the European Court, the applicant submitted that there were no reasonable grounds to suspect that he had participated in a public event held in the territory in which it was prohibited. The applicant considered that the applicable legal norms were not foreseeable and allowed the authorities to act arbitrarily.

The applicant, Svetlov, was accused of committing an administrative offense, since he did not have a valid driver's license. He was taken to the Department of Internal Affairs, administrative detention was applied to him, accused of committing an offense, and an administrative arrest was applied against him for a period of five days. The applicant appealed against the relevant decision, but continued to serve his sentence while his application, which was subsequently rejected, was pending. During the examination of his application by the European Court, the applicant alleged, inter alia, that the lack of a suspending effect on the execution of an administrative arrest punishment violated the applicant's right to presumption of innocence (Article 6 § 2 of the Convention).


QUESTIONS OF RIGHT


Regarding compliance with paragraph 1 of Article 5 of the Convention. (a) Delivery and administrative detention (applicants Tsvetkova, Andreev, Bgantsev and Torlopov). (i) Imprisonment. The applicants' detention in the departments of internal affairs under the administrative detention procedure was within the scope of Article 5 § 1 of the Convention, and the transfer (including sending the person to the department of internal affairs and finding him there) was “deprivation of liberty”. Nothing in the case file suggested that the applicants could freely decide whether to follow the police officers to the internal affairs department or not, or that, while in the department, they could leave at any time without negative consequences for them. In all the cases considered, there was an element of coercion that, regardless of the short duration of the procedures applied in certain cases, testified to the deprivation of liberty.

(ii) The applicability of any of the subparagraphs of paragraph 1 of Article 5 of the Convention. The fact that every applicant was suspected of having committed an “offense”, punishable according to the Code of Administrative Offenses of the Russian Federation, was significant. There were no reasons to doubt that the system of legislation of the Russian Federation in itself corresponded to the spirit and objectives of subparagraph "c" of paragraph 1 of Article 5 of the Convention.

(iii) Compliance with legal requirements. In the case of the applicant Tsvetkova from the administrative detention report, it is unclear (this was also not established during the pre-investigation check) in which particular administrative violation the applicant was suspected. Nevertheless, it was important to clarify this information, inter alia, in view of the requirement of the legislation of the Russian Federation that an administrative arrest could exceed three hours in duration only in the case of suspicion of committing offenses punishable by detention.

The European Court also does not consider that the administrative arrests of the applicants Andreev and Bantsev complied with the legislation of the Russian Federation so as to be considered “lawful” within the meaning of Article 5 § 1 (c) of the Convention. In the applicant's case, Andreev, no substantiation was given (as required by the first part of Article 27.3 of the Code on Administrative Offenses of the Russian Federation) that an administrative detention was carried out “in an exceptional case” or that it was “necessary for the correct and timely review of the case or for the execution of the penalty ", which, apparently, concerned the charge of late payment of a fine of seven euros. Thus, the detention of the applicant Andreev for 39 hours was unreasonable, arbitrary and disproportionate.

Similarly, although there was no reason to doubt that the detaining officer of the internal affairs agencies had reasonable grounds to believe that the applicant Bangtsev committed an administrative offense, the Court does not consider that the applicant’s detention during the night after the administrative decision was drawn up complied with the legislation of the Russian Federation, since nothing suggested that there was a risk that the applicant could continue vnuyu activities harm the evidence, influence witnesses or flee from justice, or that such possibilities were considered and justified the applicant's detention.

In the applicant's case of Torlopov, the European Court considered that the applicable legal norms were not sufficiently foreseeable and precise in their application in order to avoid the risk of arbitrariness. Thus, the Court was not convinced that the applicant’s arrival at the police station and the detention there were “lawful” within the meaning of Article 5 § 1 (c) of the Convention.

(b) Administrative arrest (applicant Dragomirov). The European Court reiterated that detention in principle would be legal if it was carried out on the basis of a court order. The subsequent recognition that the court made a mistake in making the ruling would not necessarily mean the illegality of the past period of detention. Having regard to the court’s second instance annulment of the first instance court decision and the gravity of the violations established in relation to the court proceedings, the Court decided that in the circumstances of this particular case there were sufficient grounds for concluding that the applicant’s detention "after sentencing", the penalty for which he had already partially served was not “lawful” within the meaning of Article 5 § 1 (a) of the Convention.

Concerning the observance of Article 2 of Protocol No. 7 to the Convention and clause 2 of Article 6 of the Convention (applicant Svetlov). The European Court had to determine whether the fact that the application against the decision of the court of first instance concerning the imposition of an administrative punishment in the form of arrest did not suspend the execution of this decision and that such a application was considered already after the serving of the sentence imposed by the court violated Article 2 of Protocol No. 7 to Convention and Article 6, paragraph 2 of the Convention.

(i) Article 2 of Protocol No. 7 to the Convention. In contrast to the position he took in the Shvydka v. Ukraine case, the European Court stressed that, under the legislation of the Russian Federation, the decision of the court of first instance did not “enter into force” immediately. Although it was possible to appeal the decision of the court of first instance within 10 days, the court of first instance was officially obliged to submit the application to the court of second instance on the day it was received, and the court of second instance was obliged to consider the application within one day. The European Court also noted that, according to the Code on Administrative Offenses of the Russian Federation, the court of second instance had the right to review the case in full and was not limited to the issues raised in the filed application. Therefore, procedural safeguards have taken place.

However, the basic factual elements and legal issues underlying the findings of the European Court in the above-mentioned Shvydka v. Ukraine case were also applicable to the case of the applicant Svetlov.

Although the Code of Administrative Offenses of the Russian Federation required that the proceedings in the court of second instance be carried out within the established deadlines, the fact remains that there was a delay in the consideration of the case and that the applicant's application was considered after he had completed the sentence in full. The Court was not convinced that any particularity of the proceedings in the case of an administrative offense or the arguments of urgency would outweigh the harm to the defendant’s right to file a application by the absence of any alternative to the immediate execution of the punishment of administrative arrest.

(ii) Clause 2 of Article 6 of the Convention. Although the applicant Svetlov enjoyed the protection of Article 6 § 2 of the Convention in relation to statements made by the opposite party during the proceedings in the court of second instance concerning both the facts and the right, the mere fact that the application against the decision of the court of first instance did not have a suspending effect. à-vis execution of punishment did not mean violation of the said provision of the Convention.

vis-à-vis (fr.) - in relation to.

..
RESOLUTION


The case has violated the requirements of Article 5 of the Convention in respect of the applicants Tsvetkova, Bgantsev, Andreev and Torlopov (adopted unanimously).

In the case of a violation of the requirements of Article 5 of the Convention in respect of the applicant Dragomirov (adopted unanimously).

The case of violation of the requirements of Article 2 of Protocol No. 7 to the Convention in respect of the applicant Svetlov (adopted unanimously).

The case did not violate the requirements of Article 6 § 2 of the Convention in respect of the applicant Svetlov (adopted unanimously).

The European Court also ruled unanimously that there had been a violation of Article 5 § 5 of the Convention in relation to the applicant Andreev, but did not establish the fact of a violation of this provision of the Convention in relation to the applicant Dragomirov. The European Court also ruled that there had been a violation of Articles 3 and 13 of the Convention in connection with the conditions of the applicant Bantsev’s detention and the lack of effective domestic remedies.


COMPENSATION


In application of Article 41 of the Convention. The Court awarded the applicants various sums in the amount of EUR 1,000 to EUR 3,600 in respect of non-pecuniary damage.

 

 

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