EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF FEDOROV AND FEDOROVA v. RUSSIA
(Application No. 31008/02)
JUDGMENT <*>
(Strasbourg, 13.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 Fedorov and Fedorova v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 22 September 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 31008/02) 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 two Russian nationals, Mr Nikolay
Fedorovich Fedorov and Mrs Beviya Andreyevna Fedorova ("the
applicants"), on 25 July 2002.
2. The Russian Government ("the Government") were represented
by Mr Pavel Laptev, Representative of the Russian Federation at
the European Court of Human Rights.
3. The applicants alleged, in particular, that the criminal
proceedings against them had been unreasonably lengthy. They also
complained about the obligation imposed on them not to leave their
place of residence without permission.
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. By a decision of 14 December 2004, the Court declared the
application partly admissible.
6. The applicants and the Government each filed observations on
the merits (Rule 59 з 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 з 3 in fine), the parties replied in writing to each
other's observations.
THE FACTS
I. The circumstances of the case
7. The applicants were born in 1961 and 1962 respectively and
live in the village of Kormilovka, Omsk Region.
8. The applicants, a married couple, used to live in Kargasok
of the Tomsk Region where they worked as veterinarians. The first
applicant held the position of Head Veterinarian of the Kargasok
District.
9. On 26 September 1996 criminal proceedings for fraud were
instituted against the first applicant and an obligation not to
leave the place of his residence without permission was imposed on
him as a preventive measure. On 22 October 1996 by an order of the
investigator the first applicant was suspended from his
employment.
10. In February 1998 criminal proceedings for fraud were
instituted against the second applicant and an obligation not to
leave the place of her residence without permission was imposed on
her as a preventive measure.
11. The criminal proceedings against both applicants were
joined on 17 August 1998. The applicants were accused of
submitting false reports on business trips in order to obtain cash
from the veterinary practice where the first applicant worked
unlawfully.
12. On 17 July 2000 the applicants asked for the obligation not
to leave their place of residence without permission to be
cancelled. It appears that the application was not considered.
13. Over the course of six years the criminal case was several
times remitted by the courts for additional investigation: in May
1997 and on 5 February 1998, 21 September 1999, 31 May 2000 and 31
October 2000.
14. In 2001 the applicants' minor son was invited to attend an
interview for a place at the Omsk State Agrarian University. The
applicants submitted that he did not attend the interview since
neither of them was allowed to accompany him in the journey to
Omsk. On an unspecified date the acting prosecutor of the Kargasok
District provided the second applicant with the following letter:
"[The letter] is given to Ms Bevia Andreyevna Fedorova... in
order to confirm that on 10 - 11 July 2001 she was summoned to the
Prosecutor's Office of the Kargasok District, as a result of which
she could not leave for Omsk together with her son and be present
at... the interview on 12 July.
[The letter] is to be presented to the examination panel of the
Institute of Veterinary Medicine at the Omsk State Agrarian
University."
The applicants' son, having passed general entry exams, was
later admitted to the University.
15. On 13 August 2002 the Parabelskiy District Court of the
Tomsk Region acquitted the applicants and cancelled the obligation
not to leave their place of residence without permission. On
appeal, on 16 December 2002 the Tomsk Regional Court quashed the
judgment and remitted the case for a fresh examination by a
different composition of judges.
16. On 8 May 2003 the Parabelskiy District Court of the Tomsk
Region terminated the criminal proceedings against the applicants
for lack of indication that a crime had been committed. The ruling
was quashed on appeal on 30 June 2003 by the Tomsk Regional Court,
which remitted the case for a fresh examination to the
Molchanovskiy District Court of the Tomsk Region.
17. The Molchanovskiy District Court convicted the first
applicant of misappropriation of property held in trust and
sentenced him to one year's imprisonment on 31 December 2003. He
was not required to serve the sentence on account of the statutory
time-bar. The second applicant was fully acquitted. The court also
lifted the obligation not to leave the place of residence without
permission in respect of both applicants, although it had already
been cancelled by the Parabelskiy District Court of the Tomsk
Region on 13 August 2002.
18. On appeal, on 15 April 2004 the Tomsk Regional Court
reversed the judgment in the part relating to the conviction of
the first applicant and remitted the case for a fresh examination.
The court decided not to apply any measures of restraint in
respect of the applicant.
19. The case was subsequently transmitted to the Sovetskiy
District Court of the Tomsk Region. On 28 February 2005 the
Sovetskiy District Court of the Tomsk Region convicted the first
applicant of misappropriation of property held in trust and
sentenced him conditionally to one year's imprisonment. The court,
however, released the applicant from the punishment because of the
expiry of the statutory time-limit.
20. On 25 April 2005 the Tomsk Regional Court reversed the
judgment on appeal. It held that the first instance court should
not have first convicted the applicant of the offence and then
released him from the punishment, but should have terminated the
criminal proceedings. Accordingly, the appeal court discontinued
the criminal proceedings against the applicant on account of
expiry of the statutory time-limit.
II. Relevant domestic law and practice
21. The RSFSR Code of Criminal Procedure of 1960 in force until
1 July 2002.
Article 89 (1). Application of measures of restraint
"When there are sufficient grounds for believing that an
accused person may evade an inquiry, preliminary investigation or
trial or will obstruct the establishment of the truth in a
criminal case or will engage in criminal activity, or in order to
secure the execution of a sentence, the inquirer, investigator,
prosecutor or court may apply one of the following measures of
restraint in respect of the accused: a written undertaking not to
leave a specified place, a personal guarantee or a guarantee by a
public organisation, or taking into custody. [...]"
Article 90. Application of a preventive measure to a suspect
"In exceptional instances, a preventive measure may be applied
to a suspect who has not been charged. In such a case, charges
must be brought against the suspect within ten days after a
preventive measure is applied. If no charges are brought within
the period specified, the preventive measure shall be cancelled."
Article 91. Circumstances to be considered in applying a
preventive measure
"When the need for application of a preventive measure is being
considered and the type of measure chosen... the circumstances to
be taken into account shall include... the gravity of the charges
brought and the personality of the suspect or the accused,
occupation, age, health, family status and other circumstances."
Article 92. Order or decision to apply a preventive measure
"A preventive measure shall be applied under an order made by
an inquirer, an investigator, or a prosecutor, or a reasoned
decision given by a court, which shall specify the offence of
which the person is suspected or accused and the grounds for
application of the preventive measure. The person concerned shall
be informed of the order or decision and at the same time the
person shall be provided with explanations concerning the
procedure for appealing against the preventive measure applied.
A copy of the order or the decision on the application of the
preventive measure shall be immediately handed to the person
concerned."
Article 93. Written undertaking not to leave a specified place
"A written undertaking not to leave a specified place consists
in obtaining from the suspect or the accused an obligation not to
leave the place of residence or of temporary stay without the
permission of a person conducting an inquiry, an investigator, a
prosecutor, or a court. In the event of breach by the suspect or
the accused of the written undertaking given by him, a stricter
preventive measure may be applied about which he should be
informed when the obligation is withdrawn."
22. The RF Code of Criminal Procedure of 2001 in force from 1
July 2002.
Article 102. Written undertaking not to leave a specified place
and to discharge particular obligations
"A written undertaking not to leave a specified place consists
in obtaining from the suspect or the accused an obligation:
(1) not to leave the place of residence or of temporary stay
without the permission of a person conducting an inquiry, an
investigator, a prosecutor or a court;
(2) to appear before a person conducting an inquiry, an
investigator, a prosecutor or a court at appointed terms;
(3) not to impede the criminal proceedings in any other way."
THE LAW
I. Alleged violation of Article 6 of the Convention
23. 1. The applicants complained that the criminal proceedings
against them had been unreasonably lengthy. They relied on
Articles 6 and 13 of the Convention. In the decision on
admissibility of 14 December 2004 the Court decided to examine the
complaint under Article 6 з 1 of the Convention, which reads, in
so far as relevant, as follows:
"In the determination of... any criminal charge against him,
everyone is entitled to a fair... hearing within a reasonable time
by [a]... tribunal..."
24. The period to be taken into consideration in respect of the
first applicant began on 26 September 1996, when the criminal
proceedings against him were instituted, and ended on 25 April
2005, when the proceedings were discontinued by the Tomsk Regional
Court. They lasted 8 years, 6 months and 29 days. The Court notes
that after 5 May 1998, when the Convention entered into force in
respect of the Russian Federation, the proceedings lasted for 6
years, 11 months and 20 days. The Court observes, however, that it
may take into account the period preceding the entry into force of
the Convention (see Ventura v. Italy, No. 7438/76, Commission
decision of 9 March 1978, Decisions and Reports (DR) 12, p. 38).
25. The criminal proceedings against the second applicant were
instituted in February 1998 and discontinued on 15 April 2004 with
a final decision of the Tomsk Regional Court to acquit her. The
proceedings lasted for approximately 6 years and 2 months. Out of
this period, 5 years, 11 months and 10 days fall within the
Court's competence ratione temporis.
A. Arguments of the parties
1. The Government
26. In their observations submitted prior to the decision on
admissibility of 14 December 2004 the Government stated that they
were not in a position to comment on this complaint because the
proceedings against the first applicant were still pending. The
Government made no new submissions on the merits of the complaint.
2. The applicants
27. The applicants contended that the length of the criminal
proceedings against them was in breach of the "reasonable time"
requirement enshrined in Article 6 з 1.
B. The Court's assessment
28. The Court recalls that the reasonableness of the length of
proceedings must be assessed in the light of the circumstances of
the case and with reference to the criteria established by its
case-law, particularly the complexity of the case and the conduct
of the applicant and of the relevant authorities (see, among many
other authorities, {Kudla} <*> v. Poland [GC], No. 30210/96, з
124, ECHR 2000-XI).
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
29. The Court considers that the present case, which concerned
the alleged forgery of expense accounts, was not particularly
complex. It further observes that nothing in the facts of the case
suggests that the applicants' conduct contributed to delays in the
proceedings.
30. The Court has frequently found violations of Article 6 з 1
of the Convention in cases raising similar issues to the one in
the present application (see, for example, the judgments in
{Pelissier} and Sassi v. France [GC], No. 25444/94, з 67, ECHR
1999-II, and {Sahiner} v. Turkey, No. 29279/95, ECHR 2001-IX).
31. Having examined all the material submitted to it, the Court
considers 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 considers that in the instant case the length of the
proceedings was excessive and failed to meet the "reasonable time"
requirement. There has accordingly been a breach of Article 6 з 1.
II. Alleged violation of Article 2 of Protocol No. 4
32. The applicants complained under Article 2 of Protocol No. 4
about having been subjected to an obligation not to leave their
place of residence without permission. They argued that this
constituted a disproportionate limitation of their freedom of
movement.
Article 2 of Protocol No. 4 reads, insofar as relevant, as
follows:
"1. Everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement and
freedom to choose his residence.
...
3. No restrictions shall be placed on the exercise of these
rights other than such as are in accordance with law and are
necessary in a democratic society in the interests of national
security or public safety, for the maintenance of ordre public,
for the prevention of crime, for the protection of health or
morals, or for the protection of the rights and freedoms of
others."
A. Arguments of the parties
1. The Government
33. The Government submitted that the obligation imposed on the
applicants not to leave their place of residence without
permission had been a lawful measure, which had constituted a
minimum restriction of their right of freedom of movement intended
to ensure their presence at the place where the investigation was
being conducted and at court hearings. The Government contended
that the first applicant had twice applied to the courts for
permission to leave the Kargasok District and his applications had
been granted. They further noted that after the obligation not to
leave the place of residence without permission had been cancelled
by the Parabelskiy District Court of the Tomsk Region on 13 August
2002 it was never imposed on the applicants again. The order to
lift the preventive measure had been included in the judgment of
the Molchanovskiy District Court of 31 December 2003 by mistake.
The Government concluded that in these circumstances there had
been no breach of Article 2 of Protocol No. 4.
2. The applicants
34. The applicants argued that the obligation not to leave
their place of residence, Kargasok, without permission, which
remained imposed on them during a lengthy period, had constituted
a disproportionate limitation of their right to freedom of
movement. They argued that such a measure had not been required to
ensure their presence at the court hearings since, even after it
had been lifted, they had continued to appear at the hearings. The
applicants admitted that the domestic courts had twice granted the
first applicant's applications to leave the Kargasok District in
order to appear in the appeal hearings. They contended, however,
that a number of their applications to leave their place of
residence for medical and other personal reasons had been refused.
In particular, they alleged that in 2001 the first applicant had
been refused leave to accompany their minor son to Omsk, 1500
kilometres from Kargasok, where on 12 July 2001 he had been
invited to attend an interview for a place at the Omsk State
Agrarian University. The second applicant had been granted such
leave with undue delay, as confirmed by the letter of the acting
district prosecutor. Consequently, their son had not been able to
attend the interview and had had to sit the exams several days
later. On that occasion the second applicant had accompanied him.
The applicants submitted that as the second applicant had had to
stay in Omsk longer than expected, she had been unjustly dismissed
for absence from work. The applicants maintained that the
restriction imposed had also prevented them from choosing their
home and finding employment in other regions of Russia.
B. The Court's assessment
1. Whether there was an interference
35. The Court notes that the parties did not dispute that there
was a restriction on the applicants' freedom of movement.
36. The Court reiterates that in order to comply with Article 2
of Protocol No. 4 such a restriction should be "in accordance with
the law", pursue one or more of the legitimate aims contemplated
in paragraph 3 of the same Article and be "necessary in a
democratic society" (see Raimondo v. Italy, judgment of 22
February 1994, Series A No. 281-A, p. 19, з 39).
2. Lawfulness and purpose of the interference
37. The Court is satisfied that the interference was in
accordance with the law (Article 93 of the RSFSR Code of Criminal
Procedure of 1960 and Article 102 of the RF Code of Criminal
Procedure of 2001). It also accepts the Government's submission
that its purpose was to ensure the applicants' presence at the
place where the investigation was being conducted and at the court
hearings. The Court accordingly finds that the restriction pursued
the legitimate aims set out in paragraph 3 of Article 2 of
Protocol No. 4, in particular, prevention of crime and protection
of the rights and freedoms of others.
38. It remains to be determined whether the measure was
necessary in a democratic society.
3. Proportionality of the interference
39. The Court observes that it had to rule on the compatibility
with Article 2 of Protocol No. 4 of an obligation not to leave
one's place of residence in a series of cases against Italy,
including the case of Luordo (see Luordo v. Italy, No. 32190/96, з
96, ECHR 2003-IX). In Luordo the Court found such an obligation,
imposed on the applicant for the duration of the bankruptcy
proceedings, disproportionate because of the length of the
proceedings, in that case 14 years and 8 months, even though there
had been no indication that the applicant had wished to leave his
place of residence or that such permission had ever been refused.
This pattern was followed in subsequent cases, where the duration
of an obligation not to leave one's place of residence varied
between 13 years and 6 months (see Goffi v. Italy, No. 55984/00, з
20, 24 March 2005) and 24 years and 5 months (see Bassani v.
Italy, No. 47778/99, з 24, 11 December 2003).
40. The Court finds, however, that the circumstances of the
present case are sufficiently different to enable it to
distinguish this case from the cases discussed above on the
following points.
41. First, in the present case the applicants were the subject
of criminal proceedings. The Court notes that it is not in itself
questionable that the State may apply various preventive measures
restricting the liberty of an accused in order to ensure the
efficient conduct of a criminal prosecution, including a
deprivation of liberty. In the Court's view, an obligation not to
leave the area of one's residence is a minimal intrusive measure
involving a restriction of one's liberty (see, mutatis mutandis,
Nagy v. Hungary (dec.), No. 6437/02, 6 July 2004).
42. Second, the preventive measure was not automatically
applied for the whole duration of the criminal proceedings against
the applicants. In fact, after it had been lifted by the
Parabelskiy District Court of the Tomsk Region on 13 August 2002,
it was never applied again. The Court accepts the Government's
submission that the judgment of the Molchanovskiy District Court
of 31 December 2003 contained the order to cancel the obligation
not to leave the place of residence by mistake, as in the facts of
the case there is no indication that it had been re-applied.
Accordingly, the obligation not to leave the place of residence
was imposed on the first applicant for a period of 5 years, 10
months and 17 days, out of which 4 years, 3 months and 8 days fall
within the Court's competence ratione temporis. The same measure
was applied in respect of the second applicant during
approximately 4 years and 6 months, out of which 4 years, 3 months
and 8 days fall within the Court's temporal jurisdiction.
43. Third, as follows from the above calculations, the period
when the applicants were subjected to the restriction at issue was
significantly shorter than the one in Luordo and the subsequent
cases against Italy.
44. Taking into account the above considerations, the Court
finds that in the circumstances of the present case the mere
duration of the application of the preventive measure is
insufficient for the Court to conclude that it was
disproportionate. In order to decide whether a fair balance was
struck between the general interest in the proper conduct of the
criminal proceedings and the applicants' personal interest in
enjoying freedom of movement, by contrast to Luordo and the
subsequent cases against Italy, the Court must ascertain whether
the applicants actually sought to leave the area of their
residence and, if so, whether permission to do so was refused.
45. The parties agreed that the first applicant had twice
applied for permission to leave the Kargasok district, and that
both times the permission had been granted. The applicants
contended, however, that they had sought to leave their place of
residence on a number of other occasions, in particular, to
accompany their son to an interview at the university in Omsk on
12 July 2001, but permission had been refused. They further
claimed that the restriction imposed had also prevented them from
choosing their home and finding employment in other regions of
Russia.
46. The Court notes, however, that the applicants did not
provide any evidence to show that they had actually applied to
domestic authorities for permission to leave their place of
residence on other occasions. In particular, they did not submit a
copy of their application to leave Kargasok in order to accompany
their son to Omsk on 12 July 2001. The Court notes in this regard
that the letter of the acting district prosecutor provides no
evidence that such an application had been filed. The letter
merely states that on the relevant dates the second applicant had
been summoned to the Prosecutor's Office. In the absence of any
evidence that the applicants had filed any other applications to
leave the place of their residence and, consequently, that any
such applications had been refused, the Court can not reach the
conclusion that a fair balance between the demands of the general
interest and the applicants' rights was upset. Accordingly, the
Court finds that in the present case the restriction on the
applicants' freedom of movement was not disproportionate.
47. In conclusion, there has been no violation of Article 2 of
Protocol No. 4 to the Convention.
III. Application of Article 41 of the Convention
48. 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
49. The applicants submitted that in 2002 - 2003 they had left
Kargasok allegedly because of the unfriendly environment following
the institution of the criminal proceedings against them and had
moved to the village of Kormilovka in the Omsk Region. They
claimed pecuniary damage in the amount of RUR 45,000 which they
had paid for transportation between Kargasok and the village of
Kormilovka.
50. The Government submitted that the expenses incurred were
not related to the complaints examined by the Court and,
therefore, should be dismissed.
51. The Court agrees that the claim is irrelevant for the
purposes of the present proceedings. Accordingly, the Court
dismisses the applicants' claim for compensation for pecuniary
damage.
2. Non-pecuniary damage
52. The applicants submitted that they felt moral and physical
sufferings caused by the need to change their place of residence.
They did not quantify the alleged damage.
53. The Government did not express an opinion on the matter.
54. The Court notes that inasmuch as the claim relates to the
applicants' change of residence, it is irrelevant for the purposes
of the present proceedings. However, the Court accepts that the
applicants suffered distress, anxiety and frustration caused by
the unreasonable length of the proceedings. Making its assessment
on an equitable basis, the Court awards the first applicant EUR
3,600 and the second applicant EUR 3,000 in compensation for non-
pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
55. The applicants did not make any claims in respect of the
costs and expenses incurred before the domestic courts and before
the Court.
56. Accordingly, the Court makes no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 of the
Convention;
2. Holds that there has been no violation of Article 2 of
Protocol No. 4 to the Convention;
3. Holds:
(a) that the respondent State is to pay the first applicant,
within three months from the date on which the judgment becomes
final according to Article 44 з 2 of the Convention, EUR 3,600
(three thousand six hundred euros) in compensation for non-
pecuniary damage, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement, plus any tax that may be chargeable on that amount;
(b) that the respondent State is to pay the second applicant,
within three months from the date on which the judgment becomes
final according to Article 44 з 2 of the Convention, EUR 3,000
(three thousand euros) in compensation for non-pecuniary damage,
to be converted into the national currency of the respondent State
at the rate applicable at the date of settlement, plus any tax
that may be chargeable on that amount;
(c) 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;
4. Dismisses the remainder of the applicants' claim for just
satisfaction.
Done in English, and notified in writing on 13 October 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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