The case of Vladimir Vovchenko v. the Russian Federation. Views of the Human Rights Committee of October 24, 2019. Communication No. 2446/2014.
In 2014, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to the Russian Federation.
As could be seen from the text of the Considerations, on April 10, 2013, the applicant actually spent about 13 hours in the status of a detainee before an official protocol of his detention was drawn up. In his opinion, this was contrary to national legislation, according to which a protocol of detention should be drawn up within no more than three hours after the suspect was brought to the body of inquiry or to the investigator. 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 the participation of a lawyer.
The Committee's legal position: According to paragraph 13 of general comment No. 35 (2014) on freedom and personal integrity adopted by the Human Rights Committee, arrest within the meaning of article 9 of the International Covenant on Civil and Political Rights does not necessarily imply official arrest, as defined under 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: it was established 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 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. However, the Committee drew attention to the following: 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 found that the following facts had not been 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. In view of the above, 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 stressed that, in accordance with articles 56 and 113 of the Code of Criminal Procedure 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 drew attention to the fact that the actions to detain the author and take 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 Considerations).
The Committee took note of the conclusion of the regional court that 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 of the State party 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 submit 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. Based on this, 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 thereby depriving a person of the procedural guarantees provided for by law, amounts to arbitrary detention. Thus, the Committee 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 Covenant of the author's rights under article 9, paragraph 1, of the Covenant.