EUROPEAN COURT OF HUMAN RIGHTS
FOURTH SECTION
CASE OF FEDOTOV v. RUSSIA
(Application No. 5140/02)
JUDGMENT <*>
(Strasbourg, 25.X.2005)
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Fedotov v. Russia,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Mr J. Casadevall, President,
Mr G. Bonello,
Mr {M. Pellonpaa} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mr R. Maruste,
Mr A. Kovler,
Mr S. Pavlovschi,
Mr J. Borrego Borrego, judges,
and Mr M. O'Boyle, Section Registrar,
Having deliberated in private on 4 October 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 5140/02) 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 a Russian national, Mr Igor
Leonidovich Fedotov, on 18 December 2001.
2. The applicant, who had been granted legal aid, was
represented before the Court by Ms L. Stakhieva, a lawyer
practising in Lipetsk. The Russian Government ("the Government")
were represented by their Agent, Mr P. Laptev, Representative of
the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that he had twice been
detained without a legal basis and in inhuman conditions and that
the domestic courts had not considered his claim for compensation
for unlawful detention.
4. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed Fourth Section (Rule 52 з 1).
6. By a decision of 23 November 2004, the Court declared the
application partly admissible.
7. The applicant and the Government each filed observations on
the merits (Rule 59 з 1).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1957 and lives in the town of
Borovichi in the Novgorod Region.
A. Criminal charge against the applicant
9. On 7 May 1999 the prosecutor's office of the Borovichi
District began an investigation into the applicant's dealings, as
it suspected him of using his position as the president of a non-
governmental organisation for personal gain. It was alleged, in
particular, that he had used a grant of 5,000 US dollars (USD) to
purchase computer equipment which he had kept at his home or, in
the alternative, unlawfully given to a local law office.
10. On 13 October 1999 the prosecutor charged the applicant and
issued an arrest warrant when he failed to attend the prosecutor's
office to countersign the charge sheet.
11. On 1 February 2000 a supervising prosecutor of the Novgorod
Region quashed the decision to charge the applicant and cancelled
the warrant. She found that the investigation was incomplete
because pertinent facts had not been sufficiently examined.
12. On 9 February 2000 the Borovichi Criminal Police put the
applicant's name on the federal list of wanted persons.
13. On 20 March 2000 the applicant was charged again.
14. On 10 April 2000 a senior investigator from the
Investigations Division of the Novgorod Regional Police dropped
the charges against the applicant because there was no evidence
that a criminal offence had been committed. On 4 May 2000 that
decision was notified to the applicant's lawyer.
B. The applicant's detention in Moscow
1. Arrest on 14 - 15 June 2000
15. At 9.50 p.m. on 14 June 2000 the applicant was detained in
the Izmaylovo Hotel in Moscow on the basis of the arrest warrant
issued on 13 October 1999 because his name was still on the
federal list of wanted persons.
16. The applicant remained at the police station for twelve
hours, until 10 a.m. on 15 June 2000. He was interrogated,
searched and allegedly verbally abused by police officers. He was
released only after the Novgorod Regional Police had confirmed, by
a faxed letter, that the arrest warrant had been cancelled.
17. The officer in command at the police station refused to
issue the applicant with a document confirming that he had been
detained for twelve hours.
2. Arrest on 6 - 7 July 2000
18. At 8.30 p.m. on 6 July 2000 the applicant was detained in
Moscow on the basis of the same arrest warrant. He was handcuffed
and escorted to the "Rostokino" Police Station of the North-
Western Administrative District of Moscow.
19. According to the applicant, he was verbally abused by three
police officers, one of whom also hit him in the chest. His
requests for permission to make a phone call and to meet the
officer in charge were ignored.
20. The applicant was not released until 6.15 p.m. on 7 July
2000, after confirmation had been received that the warrant had
been cancelled. According to the applicant, during the entire
period he spent in detention he received no water or food and was
given no access to toilet facilities.
C. Disciplinary proceedings against the investigators
21. On 18 June 2000 the applicant complained to the Head of the
Moscow Police and the Izmaylovskiy District Prosecutor's Office.
On 5 July 2000 the applicant complained to the Moscow City
Prosecutor that he had been unlawfully detained and that the
district prosecutor had failed to respond to his complaints. On 15
August 2000 he complained to the Prosecutor General about his
unlawful detention in July 2000.
22. On 17 August 2000 a deputy director of the Operative
Investigations Division of the Moscow Police informed the
applicant that his detention on 14 June 2000 was considered lawful
as he had been on the federal list of wanted persons. Since the
applicant had not had any documents on him to show that the
charges had been dropped, the police officers "had taken all
appropriate measures to confirm or refute [his] statement about
the unlawfulness of [his] detention".
23. On 18 September 2000 a deputy director of the Public
Security Division of the Moscow Police confirmed to the applicant
that he had been detained because his name was on the federal list
of wanted persons. He maintained that the Moscow police officers
had acted lawfully and that on both occasions responsibility for
his detention lay with the Novgorod Regional Police as they had
failed to update the database of wanted persons in time.
24. On 4 September 2000 the director of the Operative
Investigations Division of the Moscow Police advised the applicant
that the Borovichi Police Department was responsible for placing
people's names on, and removing them from, the wanted persons'
list.
25. On 25 September 2000 a deputy prosecutor of the
Izmaylovskiy District of Moscow wrote to the applicant to say that
the blame for his detention lay with the Novgorod Regional police
officers who had failed to remove his name from the wanted
persons' list. He added that the Moscow Police had acted lawfully
on the basis of the information available.
26. On 31 October 2000 a deputy prosecutor of the Novgorod
Region informed the applicant that his name had been deleted from
the wanted persons' list on 5 May 2000 and that notice thereof had
been sent to the central database of the Ministry of the Interior
on 16 May 2000. However, an investigator, Ms Romanova, had failed
to notify the Borovichi Police Department that the arrest warrant
had been cancelled on 1 February 2000, and it was that which had
led to the applicant's detention in Moscow and Lipetsk and the
violations of his constitutional rights. The deputy prosecutor
said that he had requested the director of the Investigations
Department of the Novgorod Regional Police to examine the matter
and to discipline those responsible for the violations of the
applicant's rights.
27. On 20 October 2000 a deputy director of the Internal
Investigations Department of the Novgorod Regional Police wrote to
inform the applicant that disciplinary proceedings were pending
against the investigator who had failed to notify those concerned
in time that the arrest warrant had been cancelled.
28. On 7 December 2000 an acting prosecutor of the Novgorod
Region informed the applicant that Ms Romanova had been
reprimanded for unspecified violations of the rules of criminal
procedure.
29. After the application had been communicated to the
respondent Government, the Ostankinskiy Interdistrict Prosecutor's
Office carried out an inquiry into the applicant's complaints of
2000. On 29 March 2004 it issued a decision not to initiate
criminal proceedings in connection with his allegations of ill-
treatment because there was no evidence of criminal conduct by any
of the police officers. On 20 April 2004 the Moscow City
Prosecutor quashed that decision and ordered a further inquiry.
30. According to the Government, further to a recommendation
(представление) issued on 20 August 2004 by the Ostankinskiy
Interdistrict Prosecutor's Office, the Information Centre of the
Ministry of the Interior reinforced the procedures for ensuring
that the federal list of wanted persons was regularly updated.
D. Civil action for damages
31. In early 2001 the applicant sued the Ministry of Finance,
the Prosecutor General's Office and the Ministry of the Interior.
He claimed compensation for pecuniary and non-pecuniary damage in
connection with the unlawful criminal proceedings and arrest.
32. On 29 August 2001 the Basmanniy District Court of Moscow
requested the "Rostokino" police station to provide the papers
relating to the applicant's detention on 6 - 7 July 2000,
including the records of his arrest and body search and an extract
from the custody record. It does not appear that the requested
documents were provided.
33. On 18 September 2001 the Basmanniy District Court delivered
judgment. It found that the criminal proceedings against the
applicant had been unlawful because they were ultimately
discontinued for lack of evidence of a criminal offence. Having
regard to the fact that "[the applicant] had given an undertaking
not to leave the town and had not actually been taken into
custody", the District Court awarded him 3,000 Russian roubles
(RUR, 110 euros (EUR)) in compensation for non-pecuniary damage.
It further awarded him RUR 14,976 for legal costs incurred in the
criminal proceedings and RUR 462.14 for costs in the civil
proceedings. The total amount came to RUR 18,438.14 (approximately
EUR 675). The remainder of the applicant's claims were dismissed.
34. The applicant appealed against the judgment. He complained,
in particular, that the District Court had deliberately given an
incomplete account of the circumstances of the case and that his
claims for compensation for unlawful detention in June and July
2000 had not been considered in the judgment.
35. On 16 January 2002 the Moscow City Court upheld the
judgment of 18 September 2001. It held that the applicant had not
advanced any new arguments other than those that had been already
examined by the District Court.
E. Enforcement of the judgment of 18 September 2001
36. On 20 January 2002 the applicant applied to the Basmanniy
District Court for a writ of execution. Having received no reply,
he wrote to the president of the court and to the Moscow City
Prosecutor on 7 March, 15 May and 19 June 2002 to complain about
the delay.
37. On 27 May 2002 the President of the Basmanniy District
Court replied to the applicant, advising him that the writ had
been sent to the court bailiffs on 18 March 2002 for enforcement.
38. On 19 June 2002 the applicant received a writ of execution
for RUR 17,976. On 26 and 27 June 2002 he complained to the
Presidents of the Basmanniy District Court and the Moscow City
Court that the amount in the writ was less than the award in the
judgment.
39. On 26 June 2002 the applicant requested the President of
the Basmanniy District Court to rectify the error in the writ. He
repeated his request on 29 July 2002, but to no avail, and so on 2
September 2002 sent a complaint to the Moscow City Court.
40. On 16 July 2002 the applicant sent the writ of execution
for RUR 17,976 to the court bailiffs.
41. By a letter of 24 September 2002, the President of the
Basmanniy District Court confirmed that the writ had been sent to
the court bailiffs on 18 March 2002.
42. On 22 November 2002 the bailiffs' service of Interdistrict
Office No. 2 of Moscow returned the writ for RUR 17,976 to the
applicant, advising him to submit it directly to the Ministry of
Finance.
43. Having received no response to his requests for
rectification of the amount stated in the writ, the applicant
renewed his request to the Basmanniy District Court to that effect
on 19 September 2003 and returned the writ containing the error.
44. On 9, 10 and 15 February and 3 and 20 March 2004 the
applicant wrote to the President of the Supreme Court, the Moscow
City Prosecutor and the Basmanniy District Prosecutor to complain
about the Basmanniy District Court's persistent refusal to rectify
the writ.
45. On 10 April 2004 the applicant received by post a writ of
execution for RUR 18,446.54 dated 30 March 2004. On 16 April 2004
he submitted it to the Ministry of Finance for execution.
46. In a letter of 14 April 2004, the Supreme Court claimed
that on 15 October 2003 a corrected writ of execution had been
sent to the court bailiffs' service.
47. By a letter of 6 May 2004, the Moscow Main Directorate of
the Ministry of Justice informed the applicant that the bailiffs'
service had searched its records since 1 January 2002 and had no
trace of receiving a writ of execution for RUR 18,446.54.
48. On 15 March 2004 the applicant requested the Basmanniy
District Court to adjust the award in the judgment of 18 September
2001 in line with inflation. On 24 November 2004 the court granted
his claim in part, awarding him RUR 6,269 on account of inflation
and RUR 6,000 in legal costs.
49. On 25 November 2004 the Ministry of Finance returned the
writ to the applicant, saying that it was defective.
50. On 16 December 2004 the Basmanniy District Court issued a
new writ and submitted it directly to the Ministry of Finance. In
his letter to the applicant, the court president acknowledged that
the previously issued writs had not conformed to the law on
enforcement proceedings.
51. At the date of the last communication from the applicant of
27 February 2005, the judgment of 18 September 2001, as
supplemented by the judgment of 24 November 2004, had not yet been
enforced.
II. Relevant domestic law
52. The Russian Constitution of 12 December 1993 establishes
that a judicial decision is required before a defendant can be
detained or his or her detention extended (Article 22).
Under the RSFSR Code of Criminal Procedure (in force until 1
July 2002), a decision ordering placement in custody could be
taken by a prosecutor or a court (Articles 11, 89 and 96).
53. The Russian Civil Code provides for strict liability
(ответственность независимо от вины) of the State treasury for
damage incurred through being unlawfully held in custody (Article
1070 з 1).
III. Relevant international documents
54. The relevant extract from the 2nd General Report of the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) (CPT/Inf (92) 3) reads as
follows:
"42. Custody by the police is in principle of relatively short
duration... However, certain elementary material requirements
should be met.
All police cells should be of a reasonable size for the number
of persons they are used to accommodate, and have adequate
lighting (i.e. sufficient to read by, sleeping periods excluded)
and ventilation; preferably, cells should enjoy natural light.
Further, cells should be equipped with a means of rest (e.g. a
fixed chair or bench), and persons obliged to stay overnight in
custody should be provided with a clean mattress and blankets.
Persons in custody should be allowed to comply with the needs
of nature when necessary in clean and decent conditions, and be
offered adequate washing facilities. They should be given food at
appropriate times, including at least one full meal (i.e.
something more substantial than a sandwich) every day.
43. The issue of what is a reasonable size for a police cell
(or any other type of detainee/prisoner accommodation) is a
difficult question. Many factors have to be taken into account
when making such an assessment. However, CPT delegations felt the
need for a rough guideline in this area. The following criterion
(seen as a desirable level rather than a minimum standard) is
currently being used when assessing police cells intended for
single occupancy for stays in excess of a few hours: in the order
of 7 square metres, 2 metres or more between walls, 2.5 metres
between floor and ceiling."
The CPT reiterated the above conclusions in its 12th General
Report (CPT/Inf (2002) 15, з 47).
55. The part of the Report to the Russian Government on the
visit to the Russian Federation carried out by the CPT from 2 to
17 December 2001 (CPT/Inf (2003) 30) read, in so far as it
concerned the conditions of detention in administrative-detention
cells located within police stations, as follows:
"25. Similar to the situation observed during previous visits,
none of the district commands (RUVD) and local divisions of
Internal Affairs visited were equipped with facilities suitable
for overnight stays; despite that, the delegation found evidence
that persons were occasionally held overnight at such
establishments... The cells seen by the delegation were totally
unacceptable for extended periods of custody: dark, poorly
ventilated, dirty and usually devoid of any equipment except a
bench. Persons held overnight were not provided with mattresses or
blankets. Further, there was no provision for supplying detainees
with food and drinking water, and access to a toilet was
problematic.
The CPT reiterates the recommendation made in its report on the
1999 visit (cf. paragraph 27 of document CPT (2000) 7) that
material conditions in, and the use of, cells for administrative
detention at district commands and local divisions of Internal
Affairs be brought into conformity with Ministry of Internal
Affairs Order 170/1993 on the general conditions and regulations
of detention in administrative detention cells. Cells which do not
correspond to the requirements of that Order should be withdrawn
from service.
Further, the Committee reiterates the recommendation made in
previous visit reports that administrative detention cells not be
used for accommodating detainees for longer than 3 hours."
THE LAW
I. Alleged violation of Article 3 of the Convention
56. The applicant complained that the conditions of his
detention on 14 - 15 June and 6 - 7 July 2000 were not compatible
with Article 3 of the Convention, which reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
1. The parties' submissions
57. In their observations on the admissibility and merits of
the case of 29 April 2004, the Government declined to comment on
this complaint, claiming that the Prosecutor General's Office had
launched an additional inquiry into the circumstances of the
applicant's detention and that its results would be communicated
to the Court. In their observations on the merits of 31 January
2005, the Government made no further submissions.
58. The applicant interpreted the Government's stance as an
admission that, four years after the events in question, they were
not in possession of any factual information on his detention,
even though between 18 June and 23 November 2000 he had lodged no
fewer than nine complaints to various authorities, including the
Moscow City Prosecutor, the Minister of the Interior, the
Prosecutor General and the Head of the Moscow Department of the
Interior. However, these complaints had not prompted any effective
investigation or the punishment of those responsible. No criminal
proceedings had been instituted or inquiry carried out. Moreover,
in the subsequent civil proceedings for compensation, the domestic
courts had refused his requests for information concerning his
detention and permission to interview witnesses. The applicant
considered that an investigation that had been started only after
the communication of his application by the Court, by which time a
significant period had elapsed, could not be effective or produce
any tangible results.
2. The Court's assessment
(a) Establishment of the facts
59. The Court reiterates that allegations of ill-treatment must
be supported by appropriate evidence. In assessing evidence, the
Court has generally applied the standard of proof "beyond
reasonable doubt". However, such proof may follow from the
coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see
Salman v. Turkey [GC], No. 21986/93, з 100, ECHR 2000-VII).
60. The Court notes that the only account of the conditions of
the applicant's detention at the police stations is that furnished
by him. The Court reiterates that Convention proceedings, such as
the present application, do not in all cases lend themselves to a
rigorous application of the principle affirmanti incumbit probatio
(he who alleges something must prove that allegation) because in
certain instances the respondent Government alone have access to
information capable of corroborating or refuting these
allegations. A failure on a Government's part to submit such
information without a satisfactory explanation may give rise to
the drawing of inferences as to the well-foundedness of the
applicant's allegations (see Ahmet {Ozkan} and Others v. Turkey,
No. 21689/93, з 426, 6 April 2004).
61. In the present case even the applicant's request for an
official custody record was refused. He cannot therefore be
criticised for not furnishing substantial evidence of the material
conditions of his detention. The Government, on the contrary, have
had ample opportunity to investigate the conditions at the police
stations, notably by conducting an on-site inspection and
questioning the police officers or other witnesses concerned.
However, their submissions were silent on this point. Nor did the
Government offer any convincing explanation for their failure to
submit relevant information.
In these circumstances the Court will examine the merits of the
complaint on the basis of the applicant's submissions.
(b) Principles established in the Court's case-law
62. The Court reiterates that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of
Article 3 of the Convention. The assessment of this level is
relative; it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects
and, in some cases, the sex, age and state of health of the victim
(see, among other authorities, {Kudla} v. Poland [GC], No.
30210/96, з 91, ECHR 2000-XI, and Peers v. Greece, No. 28524/95, з
67, ECHR 2001-III).
Although the purpose of such treatment is a factor to be taken
into account, in particular whether it was intended to humiliate
or debase the victim, the absence of any such purpose does not
inevitably lead to a finding that there has been no violation of
Article 3 (see Peers, cited above, з 74).
63. The Court further reiterates that, where an individual
raises an arguable claim that he has been ill-treated in breach of
Article 3, that provision requires by implication that there
should be an effective official investigation capable of leading
to the identification and punishment of those responsible. If this
were not the case, the general legal prohibition of torture and
inhuman and degrading treatment and punishment would be
ineffective in practice and it would be possible in some cases for
agents of the State to abuse the rights of those within their
control with virtual impunity (Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998-VIII, з 102).
(c) Application of the above principles to the present case
i. The applicant's detention on 14 - 15 June 2000
64. The Court observes that the applicant provided very few
details about the material conditions of his detention at the
police station in the Izmaylovo Hotel. Although his arrest without
a lawful basis must have caused him considerable stress and
strain, it has to be noted that he only remained in custody for
twelve hours. He did not allege that his physical or mental
integrity was imperilled during that period.
65. Accordingly, the Court does not consider that the treatment
to which the applicant was subjected on 14 - 15 June 2000 attained
the minimum level of severity required for the application of
Article 3 of the Convention. There has therefore been no violation
of that provision.
ii. The applicant's detention on 6 - 7 July 2000
66. The Court observes that in July 2000 the applicant was
detained at the Rostokino Police Station for a much longer period
of twenty-two hours. During that time he received no food or drink
and could not use the toilet. The police officers assaulted him
verbally and physically.
67. The applicant's description coincides with the findings of
the CPT, which inspected administrative-detention cells located
within several police stations in Moscow the following year. The
CPT found, in particular, that there had been no provision for
supplying detainees with food and drinking water and that access
to a toilet had been problematic. It stated that such cells were
totally unacceptable for extended periods of custody (see
paragraph 55 above).
68. The Court notes that the applicant was kept overnight in a
cell unfit for an overnight stay, without food or drink or
unrestricted access to a toilet. These unsatisfactory conditions
exacerbated the mental anguish caused by the unlawful nature of
his detention. In these circumstances, the Court considers that
the applicant was subjected to inhuman treatment, incompatible
with Article 3 of the Convention.
69. Furthermore, the Court notes that the domestic authorities
failed to investigate the applicant's complaints concerning the
conditions of his detention. The inquiry that began in 2004, after
the application had been communicated to the respondent
Government, did not lead to the identification of those
responsible for the inhuman conditions of detention.
70. The Court finds, accordingly, that there has been a
violation of the substantive and procedural aspects of Article 3
of the Convention on account of the applicant's detention on 6 and
7 July 2000.
II. Alleged violation of Article 5 зз 1 - 4
of the Convention
71. The applicant complained that his detention on 14 - 15 June
and 6 - 7 July 2000 was incompatible with Articles 5 зз 1 (c), 2,
3 and 4, which provide 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:
...
(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;
...
2. Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him.
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.
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."
1. The parties' submissions
72. The applicant submitted that there had been no legal basis
for his detention because the arrest warrant had been cancelled on
1 February 2000 so that his placement on the federal list of
wanted persons had been unlawful from the outset. He pointed out
that the Government had not explained why it had taken the
Novgorod Police 36 days (from 10 April 2000, when the criminal
proceedings ended, until 16 May 2000) to notify the Federal Police
that the proceedings had been discontinued, the Federal Police two
weeks to update the list of wanted persons and, finally, the
Federal Police 39 days (29 May 2000 to 7 July 2000) to ensure the
procedure was finally completed. What is more, despite his
complaint on 18 June 2000 to a prosecutor's office about his
unlawful detention in June 2000, no measures were taken and his
name was not removed from the wanted persons' list with the result
that he was unlawfully detained a second time in July 2000.
73. The Government insisted that the police officers who had
detained the applicant in June and July 2000 in Moscow, had acted
lawfully because at that time the applicant's name had been on the
wanted persons' list. The investigator Ms Romanova had been
disciplined for her failure to inform the Borovichi Police
Department promptly that the criminal proceedings against the
applicant had been discontinued.
2. The Court's assessment
74. The Court will first consider the complaint from the
standpoint of Article 5 з 1. It reiterates that the expressions
"lawful" and "in accordance with a procedure prescribed by law" in
Article 5 з 1 essentially refer back to national law and state the
obligation to conform to the substantive and procedural rules
thereof. However, the "lawfulness" of detention under domestic law
is not always the decisive element. The Court must in addition be
satisfied that detention during the period under consideration was
compatible with the purpose of Article 5 з 1 of the Convention,
which is to prevent persons from being deprived of their liberty
in an arbitrary fashion.
75. The parties agree that the sole ground for the applicant's
arrests was the fact that his name was on the federal list of
wanted persons. In the Government's view, the Moscow Police could
not be blamed for having acted in reliance on that information. In
this connection, the Court notes that it may happen that a
Contracting State's agents conduct themselves unlawfully in good
faith. However, even if there has been no fault on the part of the
officials, it should be stressed that the Governments are
answerable under the Convention for the acts of any State agency
since what is in issue in all cases before the Court is the
international responsibility of the State (Lukanov v. Bulgaria,
judgment of 20 March 1997, Reports of Judgments and Decisions 1997-
II, з 40).
76. It is not disputed that after 1 February 2000, when the
warrant for the applicant's arrest was cancelled, there was no
further decision - either by a court or a prosecutor - authorising
his arrest or detention.
The police might genuinely have believed that there was a
reasonable suspicion of the applicant's involvement in a criminal
offence because his name was on the list of wanted persons.
However, the question for the Court is not what the police thought
but whether the applicant's detention was effected for one of the
purposes listed in Article 5 з 1 of the Convention. It has not
been claimed that it did.
It follows that the applicant's arrest in June and July 2000
was not "lawful", under either domestic law or the Convention.
77. The Court notes with concern that the only reason for his
arrest was the lack of co-operation between the competent State
authorities. The initial failure of the Borovichi Police to verify
the existence of a valid arrest warrant prior to placing the
applicant's name on the federal list of wanted persons was further
aggravated by the Novgorod Police's omission to report the fact
that the criminal proceedings had been discontinued promptly. It
is surprising that the federal departments of the Ministry of the
Interior should have been so slow to update the police database
and failed to act for several months. A cause for further concern
is the fact that the Moscow Police and the Prosecutor's Office
failed to react with the special diligence called for in such
situations to the applicant's complaint about his unlawful arrest
in June 2000 and thus permitted the rearrest of a person who was
known to be innocent.
78. Finally, the Court observes that no records of the
applicant's arrests in June and July 2000 appear to have been
drawn up and that the officer in charge of the police station
expressly refused his request for a record. That fact in itself
must be considered a most serious failing, as it has been the
Court's traditional view that the unacknowledged detention of an
individual is a complete negation of the fundamentally important
guarantees contained in Article 5 of the Convention and discloses
a most grave violation of that provision. The absence of a record
of such matters as the date, time and location of detention, the
name of the detainee, the reasons for the detention and the name
of the person effecting it must be seen as incompatible with the
requirement of lawfulness and with the very purpose of Article 5
of the Convention (Anguelova v. Bulgaria, No. 38361/97, з 154,
ECHR 2002-IV; Kurt v. Turkey, judgment of 25 May 1998, Reports of
Judgments and Decisions 1998-III, з 125).
79. Having regard to the above, the Court finds that there has
been a violation of Article 5 з 1 of the Convention on account of
the applicant's unlawful arrests in June and July 2000. In the
light of this finding the Court considers that no separate issues
arise under paragraphs 2, 3 and 4 of that Convention provision.
III. Alleged violation of Article 5 з 5 of the Convention
80. The applicant complained under Articles 5 з 5 of the
Convention that the domestic courts had failed to examine his
claim for compensation for unlawful detention. Article 5 з 5 reads
as follows:
"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."
1. The parties' submissions
81. The applicant submitted that he had expressly referred to
the periods he had spent in custody in June and July 2000 in his
statement of claim. He and his representatives had also made oral
submissions on the subject to the District Court and
unsuccessfully sought its assistance to obtain the detention
records. In his grounds of appeal, the applicant had complained
about the District Court's failure to examine his claim for
compensation for unlawful detention and the issue had also been
raised by his representative in oral submissions to the appeal
court. The applicant submitted that he had used all available
remedies and that the domestic courts had deliberately refrained
from examining the issues relating to his unlawful detention.
82. In their observations on the admissibility and merits of
the case of 29 April 2004, the Government asserted that the
applicant's statement of claim did not contain a claim for
compensation for his detention in June and July 2000. They
considered therefore that he had not exhausted domestic remedies.
After the Court rejected that objection in its decision of 23
November 2004 on the admissibility of the application, they made
no further submissions on this issue.
2. The Court's assessment
83. The Court reiterates that Article 5 з 5 is complied with
where it is possible to apply for compensation in respect of a
deprivation of liberty effected in conditions contrary to
paragraphs 1, 2, 3 or 4. The right to compensation set forth in
paragraph 5 therefore presupposes that a violation of one of the
preceding paragraphs of Article 5 has been established, either by
a domestic authority or by the Court (N.C. v. Italy [GC], No.
24952/94, з 49, ECHR 2002-X; Pantea v. Romania, No. 33343/96,
judgment of 3 June 2003, з 262).
84. In the present case the Court has found a violation of
paragraph 1 of Article 5 in that there was no "lawful" basis for
the applicant's arrest. It must therefore establish whether or not
the applicant had an enforceable right to compensation for the
breach of Article 5.
85. In the light of the information before it the Court notes
that the applicant could have been awarded compensation for the
damage he sustained under the general law of tort if his arrest
was found to be unlawful under domestic law (see paragraph 53
above).
86. As the Court established in its decision of 23 November
2004 on the admissibility of the application, the applicant had
validly introduced a claim for the damage he incurred as a result
of his unlawful detention. However, the domestic courts
disregarded it, notwithstanding the oral and written submissions
of the applicant and his counsel. What is more, the Basmanniy
District Court made arbitrary findings of fact, stating in its
judgment that the applicant "had not actually been taken into
custody", despite abundant evidence to the contrary.
87. In these circumstances, the Court finds that the applicant
was denied an enforceable right to compensation for unlawful
arrest and that there has been a violation of Article 5 з 5 of the
Convention.
IV. Alleged violations of Article 6 з 1 of the Convention
and Article 1 of Protocol No. 1
88. The Court decided, of its own motion, to examine the
prolonged failure to enforce the judgment of the Basmanniy
District Court of 18 September 2001 under Article 6 з 1 of the
Convention and Article 1 of Protocol No. 1, which read as follows:
Article 6 з 1
"In the determination of his civil rights and obligations...,
everyone is entitled to a fair... hearing... by [a]...
tribunal..."
Article 1 of Protocol No. 1
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
1. The parties' submissions
89. The applicant submitted that the delays in enforcement were
entirely attributable to the Russian authorities. The Basmanniy
District Court did not issue a writ of execution for the correct
amount until 10 April 2004. Moreover, it consistently gave
misleading information about the status of the enforcement
proceedings, claiming that the writ of execution had been sent to
the bailiffs. As the letter of 6 May 2004 from the bailiffs'
service revealed, that information was false and the bailiffs had
not in fact received a writ from the District Court. Indeed, the
judgment had still not been complied with, although the relevant
documents had been submitted to the Ministry of Finance.
90. In their observations of 29 April 2004 on the admissibility
and merits of the case, the Government submitted that Russian law
did not provide for writs of execution to be sent by mail, as the
applicant had requested. When the applicant attended the District
Court in person on 19 June 2002, the writ was immediately handed
over to him. On 30 September 2003 he was given a rectified writ.
In their additional submissions of 31 January 2005, the Government
claimed that a duplicate of the writ had only reached the Ministry
of Finance on 24 April 2004. Before that date the Ministry of
Finance had not been in possession of the enforcement documents
and the Russian authorities could not, therefore, be held liable
for the failure to enforce the judgment during that period.
2. The Court's assessment
91. The Court observes that on 18 September 2001 the applicant
obtained a judgment in his favour against the federal treasury.
Following the appeal decision of 16 January 2002, the judgment
became final and enforceable. However, it has not been enforced to
date, despite the fact that a supplementary judgment was delivered
on 24 November 2004 adjusting the amount of the initial award in
order to take inflation into account.
92. The Court considers that all the delays in the enforcement
proceedings were attributable to failings on the part of the
domestic authorities.
93. It notes, firstly, that for at least two years the
Basmanniy District Court refused to issue the applicant with a
writ of execution, so preventing him from serving it on the
Ministry of Finance. At the same time the domestic courts gave
misleading information - in the District Court's letters of 27 May
and 24 September 2002 and the Supreme Court's letter of 14 April
2004 - that the writ had been sent for enforcement. However, the
Ministry of Justice's letter of 6 May 2004 revealed the true
position. Furthermore, on 19 June 2002 and 30 March 2004 the
Basmanniy District Court issued writs of execution which failed to
satisfy the requirements of the domestic law.
94. Further delays were due to the conduct of the Ministry of
Finance. After receipt of the writ on 21 April 2004, it made no
attempt to comply with it. Having - for reasons that remain
unclear - held on to the writ for some seven months, it returned
it to the applicant so that certain purported defects could be
rectified. Although the writ was resubmitted in December 2004, by
February 2005 the judgment had still not been enforced.
95. The Court has frequently found violations of Article 6 з 1
of the Convention and Article 1 of Protocol No. 1 in cases raising
issues similar to the ones in the present case (see Wasserman v.
Russia, No. 15021/02, з 35 et seq., 18 November 2004; Zhovner v.
Ukraine, No. 56848/00, з 37 et seq., 29 June 2004; Burdov v.
Russia, No. 59498/00, з 34 et seq., ECHR 2002-III).
96. Having examined the material submitted before it, the Court
notes that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion
in the present case. Having regard to its case-law on the subject,
the Court finds that by failing for years to comply with the
enforceable judgment in the applicant's favour the domestic
authorities prevented him from receiving the money to which he was
entitled.
97. There has accordingly been a violation of Article 6 of the
Convention and of Article 1 of Protocol No. 1.
V. Application of Article 41 of the Convention
98. 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."
A. Damage
1. Pecuniary damage
99. The applicant claimed 30,715.88 Russian roubles ("RUR") in
respect of pecuniary damage being the amounts unpaid under the
judgments of 18 September 2001 and 24 November 2004.
100. The Government did not comment.
101. The Court notes that the State's outstanding obligation to
enforce the judgments of 18 September 2001 and 24 November 2004 is
undisputed. Accordingly, the applicant remains entitled to recover
the judgment debts in the domestic proceedings. The Court
reiterates that the most appropriate form of redress in respect of
a violation of Article 6 is to ensure that the applicant is put as
far as possible in the position in which he would have been had
the requirements of Article 6 not been disregarded. It finds that
this principle applies in the present case too, having regard to
the violation found. It therefore considers that the Government
should secure, by appropriate means, the enforcement of the award
made by the domestic courts (see Poznakhirina v. Russia, No.
25964/02, з 33; Makarova and Others v. Russia, No. 7023/03, з 37,
judgments of 24 February 2005).
2. Non-pecuniary damage
102. The applicant claimed EUR 50,000 in respect of the non-
pecuniary damage caused by unlawful detention, the lack of
compensation therefor and the failure to enforce the judgments in
his favour.
103. The Government contested the claim arguing that the police
had acted lawfully, the applicant had refused to enter into a
friendly settlement and the term of detention had not been long in
absolute terms.
104. As regards the applicant's unlawful and unacknowledged
detention in inhuman conditions and the refusal to examine the
claim for compensation, the Court considers that these events must
have caused the applicant an acute feeling of injustice and
anxiety which cannot be compensated for by a mere finding of a
violation. It therefore awards the applicant EUR 5,000 in respect
of non-pecuniary damage under this head.
105. Furthermore, the Court accepts that the applicant suffered
distress and frustration because of the State authorities' failure
to enforce the judgment in his favour. It further observes that,
in contrast to the aforementioned Burdov case, the judgment in
question has not yet been enforced and no effective measures
appear to have been taken in order to comply with it. Making its
assessment on an equitable basis, it awards the applicant EUR
2,400 in respect of non-pecuniary damage under this head.
B. Costs and expenses
106. The applicant claimed RUR 108,000 for his representation
by Ms Stakhieva before the Court, RUR 39,476 for her services in
the domestic proceedings and RUR 7,055.30 for transport and postal
expenses.
107. The Government submitted that the applicant's claims for
legal expenses had been examined and granted in part in the
judgments of 18 September 2001 and 24 November 2004. Moreover, it
appeared from the applicant's declaration of means that his
monthly income rarely exceeded RUR 3,000, whilst in his claims he
alleged that he had paid Ms Stakhieva nearly RUR 100,000 in only
one month (January 2005).
108. As regards the Strasbourg proceedings, the Court notes
that the applicant was granted EUR 701 in legal aid. As he has not
shown that the expenses exceeding that amount were necessarily
incurred, it makes no award under this head.
109. As regards the costs and expenses in the domestic
proceedings, the Court observes that the judgments of 18 December
2001 and 24 November 2004 awarded the applicant a portion of the
legal costs incurred in those proceedings. They did not make,
however, an allowance for the transport expenses. On the basis of
the materials in its possession, the Court assesses the
applicant's expenses in the domestic proceedings in the sum of EUR
800, which amount it awards the applicant, plus any tax that may
be chargeable.
C. Default interest
110. The Court considers it appropriate that the default
interest 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. Holds that there has been no violation of Article 3 of the
Convention on account of the applicant's detention on 14 and 15
June 2000;
2. Holds that there has been a violation of Article 3 of the
Convention on account of the applicant's detention on 6 and 7 July
2000;
3. Holds that there has been a violation of Article 5 з 1 of
the Convention;
4. Holds that no separate examination of the complaints
relating to the applicant's arrest under Article 5 зз 2 - 4 of the
Convention is required;
5. Holds that there has been a violation of Article 5 з 5 of
the Convention;
6. Holds that there has been a violation of Article 6 з 1 of
the Convention and Article 1 of Protocol No. 1;
7. Holds
(a) that the respondent State, within three months from the
date on which the judgment becomes final according to Article 44 з
2 of the Convention, is to secure, by appropriate means, the
enforcement of the domestic courts' judgments of 18 December 2001
and 24 November 2004, and to pay the following amounts, to be
converted into Russian roubles at the rate applicable at the date
of settlement:
(i) EUR 7,400 (seven thousand four hundred euros) in respect of
non-pecuniary damage;
(ii) EUR 800 (eight hundred euros) in respect of costs and
expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points;
8. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 25 October 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Josep CASADEVALL
President
Michael O'BOYLE
Registrar
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