The decision of the ECHR of January 19, 2021 in the case "Timofeyev and Postupkin v. the Russian Federation" (aplications N 45431/14 and 22769/15).
In 2014 and 2015, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were combined and communicated to the Russian Federation.
In the case, aplications were successfully considered regarding the imposition of duties and restrictions on applicants convicted of crimes in the order of dangerous recidivism within the framework of administrative supervision, repeated application of administrative supervision measures, failure to provide free legal assistance, and the application of duties and restrictions to the second applicant that were an interference with the second applicant's right to freedom of movement. The case involved violations of the requirements of article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, paragraph 1 of Article 6 of the Convention. Complaints about the violation of article 7 of the Convention, article 4 of Protocol No. 7 to the Convention are declared inadmissible for consideration on the merits.
THE CIRCUMSTANCES OF THE CASE
The applicants were convicted in 2003 and 2007, respectively, for crimes committed as a dangerous recidivism.
On the basis of court decisions of 2013 issued in accordance with Federal Law No. 64-FZ of April 6, 2011 "On administrative Supervision of persons Released from Places of Deprivation of Liberty", which provides that administrative supervision is established automatically in respect of any person released from places of deprivation of liberty who has been convicted of committing a crime with a dangerous or especially dangerous recidivism of crimes.
A number of restrictions were applied to the applicants, including the requirement to personally appear from one to three times a month to the internal affairs body responsible for administrative supervision, to inform the authorities about a change in their place of residence within three working days, as well as the prohibition to leave their place of residence from 22.00 to 6.00.
Regarding compliance with article 7 of the Convention. Administrative supervision was established in respect of the first applicant on the basis of a court order issued several years after the verdict in the applicant's case, but, nevertheless, related to and based on the said sentence.
As for the characteristics of administrative supervision in the legislation of the Russian Federation, it should not automatically lead to the conclusion that article 7 of the Convention is unacceptable.
In the present case, the measures applied had a preventive purpose to prevent the recurrence of crimes and could not have a punitive nature or be a criminal punishment.
As for the similarity between measures applied in the order of administrative supervision and measures that are punishments that restrict personal freedom, the establishment of administrative supervision depends not only on the punishment applied to the person concerned, but also on the "danger" of a person convicted of a crime in case of recidivism. Consequently, the measures under consideration are not punitive in nature.
The procedure for establishing and applying administrative supervision is a civil procedure that currently belongs to the sphere of administrative law and is not related to the criminal justice system.
In conclusion, with regard to the severity of the measures complained of, some of them imposed a significant burden, and some were of the nature of interference. Nevertheless, the severity of the measures in itself was not decisive, given that many non-criminal preventive measures can, as full-fledged criminal legal measures, have a significant impact on the persons to whom they are applied.
Thus, the duties imposed on the applicants and the restrictions applied to them within the framework of administrative supervision did not constitute a "punishment" within the meaning of paragraph 1 of article 7 of the Convention and should be considered as preventive measures to which the principle of prohibition of retroactive force of law established by this article of the Convention does not apply.
Complaints of a violation of article 7 of the Convention are declared inadmissible for consideration on the merits (as incompatible with the requirements of the Convention ratione materiae).
Regarding compliance with Article 4 of Protocol No. 7 to the Convention. Taking into account its conclusion that the administrative supervision measures did not constitute a punishment within the meaning of Article 7 of the Convention, the Court decided that the application of these measures to the second applicant did not constitute a "repeated criminal punishment" within the meaning of Article 4 of Protocol No. 7 to the Convention.
The complaint about the violation of article 4 of Protocol No. 7 to the Convention was declared inadmissible for consideration on the merits (as incompatible with the requirements of the Convention ratione materiae).
Regarding compliance with paragraph 1 of article 6 of the Convention (civil law aspect). The Convention does not require legal assistance in all civil cases.
In the legislation of the Russian Federation in force at the time under review, there were no provisions that would provide for the possibility of providing free legal assistance as part of the procedure for establishing administrative supervision. However, the creation of a legal aid system was only one of the ways to guarantee the fairness of the process.
The first applicant was a defendant in the proceedings initiated by the authorities of the Russian Federation, in this case, the administration of the correctional institution.
The essence of the proceedings under consideration was undoubtedly important for the first applicant: the restrictions applied to him had a serious impact on his private life and on the exercise of his rights, in particular, the right to freedom of movement.
The evaluation of the arguments for the establishment of administrative supervision concerns legal issues that require some knowledge of the legislation and applicable case law. The first applicant had neither relevant personal experience nor special knowledge of the legislation of the Russian Federation. The judge did not help the first applicant by rejecting his procedural request for legal assistance. If the first applicant had been represented by a lawyer, the first applicant could have prepared his defense in order to appeal against the evidence presented by the second party in the case. In addition, it was particularly important to provide the first applicant with adequate opportunities for protection, since, in applying administrative restrictions to him, the judge of the court of first instance took into account the applicant's "personality" and his "negative characterization" by the administration of the correctional institution. In addition, the applicant's opponent in the trial, that is, a representative of the administration of the correctional institution, used the assistance of the prosecutor throughout the proceedings.
The courts of the Russian Federation postponed the trial several times so that the first applicant could find a representative. However, in reality, the reason why the first applicant requested free legal assistance was that he did not have sufficient funds to pay for the work of a lawyer, and not that he did not have enough time to find a lawyer. Consequently, the postponement of court sessions could not help to correct the applicant's situation.
In conclusion, taking into account the situation of the first applicant, who was a person who served a custodial sentence all the time, except for a week before the hearing in the court of first instance, and also taking into account the difficulties he faced in preparing his defense, the first applicant must have experienced more serious physical and psychological stress during the proceedings than a professional lawyer.
Thus, the first applicant's lack of an opportunity to receive free legal assistance in order to be represented by a lawyer put the applicant in a clearly unfavorable position compared to his opponent in the process.
The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention (civil law aspect) (adopted unanimously).
Regarding compliance with Article 2 of Protocol No. 4 to the Convention. The duties and restrictions applied to the second applicant within the framework of administrative supervision consisted of several measures that, considered separately or in conjunction with each other, were an interference with the second applicant's right to freedom of movement. The interference was directly provided for by the legislation of the Russian Federation. At the same time, the second applicant challenged the predictability of the relevant normative act on the grounds that it was applied retrospectively to persons convicted before the entry into force of the said normative act.
Taking into account its conclusion that the measures complained of were not a punishment within the meaning of Article 7 of the Convention, the European Court considers that the application of preventive measures provided for by law to persons sentenced to deprivation of liberty, based on the behavior of these persons before the entry into force of the said law, does not entail questions about compliance with the requirements of the Convention.
The considered norms of the law of the legislation of the Russian Federation were quite predictable with respect to the categories of persons to whom they were applicable, leaving no discretion to the courts of the Russian Federation in this regard, as well as with respect to the limits of their validity in time, since the period of administrative supervision could not be longer than the "status of a convicted person" of the relevant person.
So in the text of the Resolution. According to Article 5 of the Federal Law No. 64-FZ of April 6, 2011 "On administrative supervision of persons released from places of deprivation of liberty", we are talking about the period established by the legislation of the Russian Federation for the repayment of a criminal record.
The second applicant belonged to the category of persons who were subject to these legal norms, that is, persons who, at the time of the entry into force of these norms, were convicted of a criminal offense committed with a dangerous relapse, and were automatically subject to administrative supervision, regardless of their behavior during the serving of the sentence.
The second applicant did not challenge the predictability of these legal norms in relation to the duties and restrictions established by him. Thus, there is no need to consider whether the limits of these norms were sufficiently predictable.
As for the purpose of the appealed measures, the courts of the Russian Federation justified the fact of establishing administrative supervision over the second applicant by the need to prevent the recurrence of crimes. The measures applied restricted the applicant's freedom to move at his own discretion and therefore pursued the goal of"preventing crimes".
As for the proportionality of measures to restrict the freedom of movement of a person, the legislation of the Russian Federation measured the period of administrative supervision with the duration of the period "for the repayment of a criminal record", that is, eight years (according to the wording of the Criminal Code of the Russian Federation applicable at the time under review), and this period did not depend on the discretion of the court.
At the same time, the legislation of the Russian Federation provided for the possibility of periodic review of the need to maintain restrictions that were no longer mandatory, including the prohibition to leave the place of residence from 22.00 to 6.00. Given that it did not follow from the case materials submitted to the European Court that the second applicant would have filed a corresponding application, there was no need to consider whether the trial was conducted in an appropriate volume.
With regard to measures that were mandatory under the law, especially the obligation of the second applicant to report monthly to the body exercising administrative supervision, the frequency of judicial review of the need to preserve these measures was regulated by law. Indeed, persons under administrative supervision could apply for early termination of supervision after the expiration of half of the established period of supervision, and if such a request was rejected, a new application for termination of administrative supervision could be re-submitted only six months after the refusal.
The second applicant was convicted of a serious crime, and the courts of the Russian Federation established that the applicant's criminal record should have been six years after serving the sentence imposed (according to the wording of the Criminal Code of the Russian Federation in force during the period relating to the circumstances of the case). Thus, the consideration of the need to maintain administrative supervision and, consequently, the obligation of the second applicant to personally report to the competent State authority on a monthly basis could only be carried out at the request of the applicant after the first three years of the criminal record. In addition, after the specified three-year period, the issue of the need to maintain administrative supervision could be considered after six-month periods, which would follow the refusal of the second applicant's requests to terminate administrative supervision.
Accordingly, the administrative restrictions imposed on the second applicant by way of administrative supervision were proportional to the goals set.
In the case, there was a violation of the requirements of article 2 of Protocol No. 4 to the Convention (adopted by six votes "for" with one "against").
In the application of article 41 of the Convention. The European Court awarded the first applicant 4,000 euros in compensation for non-pecuniary damage.