Views of the Human Rights Committee dated October 24, 2019 in the case "Vladimir Vovchenko v. the Russian Federation" (communication No. 2446/2014).
In 2014, the author of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to the Russian Federation.
Summary: The Committee has taken note of the author's claim under article 9 of the International Covenant on Civil and Political Rights, namely, on April 10, 2013, he spent about 13 hours in actual detention status before an official protocol of his detention was drawn up. In his opinion, this was contrary to national legislation, according to which the detention protocol should be drawn up within no more than three hours after the suspect was brought to the investigator. The Committee noted that, according to the author, he spent several hours locked in the investigator's office and handcuffed, after which he participated in investigative actions as a witness and therefore was deprived of the procedural guarantees provided for by national legislation for suspects, in particular, the right to a lawyer.
The Committee's legal position: According to paragraph 13 of general comment No. 35 (2014) on freedom and personal integrity, arrest within the meaning of article 9 of the International Covenant on Civil and Political Rights does not necessarily imply official arrest, as defined by domestic law. In accordance with paragraph 23 of general comment No. 35, States parties are obliged to comply with internal rules for ensuring important guarantees in the interests of detainees, including registration of arrest (paragraph 7.6 of the Views).
The Committee's assessment of the factual circumstances of the case: The Committee noted that from the moment of the author's actual detention until the official detention protocol was drawn up, the national authorities considered him as a witness. In its decision of 12 September 2013, the District Court found no evidence that the author's freedom of movement was restricted between the inspection of the scene and the preparation of the detention report. The investigation conducted by the national authorities also found no confirmation of the author's claim that he was held in handcuffs. At the same time, the Committee drew attention to the fact that the police officers M., Ed. and Rom., who were responsible for delivering and accompanying the author during the search at his place of residence, admitted that they handcuffed the author during his transportation. Thus, the Committee noted the following facts, which were not refuted by the parties: (a) the author was detained at the scene of the crime and taken to the police station; (b) he was in the department from the moment he was taken there and could take part in all investigative actions; (c) During a trip to his house, police officers handcuffed him. The Committee noted that the author could not freely leave the police station at any time after his arrest. The Committee concluded that the author had been in custody since his actual arrest at the scene of the crime (paragraph 7.3 of the Views).
The Committee also took note of the author's claim that, as a witness, he should have been able to move freely and should not have been handcuffed during his transportation to the place of the search. The Committee noted that, in accordance with articles 56 and 113 of the Criminal Procedure Code of the Russian Federation, a witness is called to testify. The possibility of bringing a witness arises if he evades the appearance without a valid reason. Article 21 of Federal Law No. 3-FZ of February 7, 2011 "On the Police", the Committee pointed out, provides that a police officer has the right to use special means, in particular handcuffs, when transporting detainees. In view of these provisions, the Committee stressed that the actions of detaining the author and taking him to the police station, as well as the use of handcuffs against him during his transportation to and from his apartment, are permissible only in relation to a detained or suspected person, and not in relation to a witness (paragraph 7.4 of the Views).
The Committee took note of the conclusion of the regional court - from the moment of actual detention until the official protocol of detention was drawn up, the author was not considered a detainee, but was only brought to the investigator. The Committee noted that the criminal procedure legislation of the Russian Federation does not define the concept of "delivery". As follows from the information contained in the case file, the trip to the police station took about 20 minutes. The Committee also stressed that the regional court had not explained how the investigative actions committed with the participation of the author, in particular his transportation to conduct a search of the apartment, were covered by the concept of "delivery". For these reasons, the Committee considered that the author's "delivery" to the investigator, which took approximately 13 hours, during which he took part in various investigative actions both inside and outside the police, had a number of characteristics characteristic of deprivation of liberty (paragraph 7.5 of the Views).
The Committee noted that the investigator's failure to draw up a detention report within three hours of the author's arrival at the police station, despite the fact that his freedom was restricted and he was handcuffed at certain times and therefore de facto had the status of a detainee, was contrary to the procedure established by national legislation. On this basis, the Committee concluded that the author's detention, which was not properly executed between 11 a.m. and 23.47 p.m. on April 10, 2013, without observing the procedural guarantees provided for by national legislation, was not based on the law and, therefore, was arbitrary (paragraph 7.6 of the Views).
As could be seen from the case file, the investigator took the author to the police station in order to find out his involvement in the crime through a series of investigative actions, and not just to interrogate him as a witness. The Committee stressed that the deliberate use of witness status to carry out actions applicable to a suspect, and thus depriving a person of the procedural guarantees provided for by law, is tantamount to arbitrary detention. The Committee thus concluded that the author's detention was arbitrary and unlawful, in violation of article 9, paragraph 1, of the Covenant (paragraph 7.7 of the Views).
The Committee's conclusions: The facts indicated a violation by the State party of the author's rights under article 9, paragraph 1, of the Covenant.
According to article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy. In particular, it should provide full compensation to persons whose rights guaranteed by the Covenant have been violated. Accordingly, the State party is obliged, inter alia, to take appropriate measures to provide the author with compensation for arbitrary detention. The State party is also obliged to take all necessary measures to prevent such violations in the future.
Bearing in mind that, by acceding to the Optional Protocol, the State party recognized the competence of the Committee to rule on the existence or absence of violations of the Covenant and that, in accordance with article 2 of the Covenant, the State party undertook to ensure to all persons within its territory and under its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy If a violation is established, the Committee would like to receive information from the State party within 180 days on the measures taken, adopted in pursuance of the above-mentioned Considerations of the Committee. It also requests the State party to publish these Views and ensure their wide dissemination in the official language of the State party.
Special (dissenting) opinions were expressed on the case by members of the Human Rights Committee Christoph Haines, Jose Manuel Santos Pais and Gentian Zyuberi.