Communicated on 14 October 2015

FIRST SECTION

Applications nos 11436/06 and 22912/06 Aleksandr Nikolayevich MITYANIN against Russia and Mikhail Nikolayevich LEONOV against Russia lodged on 1 February 2006 and 10 May 2006 respectively

STATEMENT OF FACTS

Mr Aleksandr Nikolayevich Mityanin, is a Russian national, who was born in 1971 and, as of 2013, was kept in a detention centre in Syktyvkar. He is represented before the Court by Mr E. Mezak, a lawyer practising in Syktyvkar.

Mr Mikhail Nikolayevich Leonov, is a Russian national, who was born in 1976 and is being detained in Syktyvkar remand centre no. 1.

A. The circumstances of the cases

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants were co-defendants in the domestic criminal proceedings.

1. Mr Mityanin

(a) Detention

In July 2003 the applicant was arrested in the town of Syktyvkar on suspicion of a criminal offence. He was ordered not to leave the town of residence. He was detained later on. His detention was extended. On 29 January 2004 the Syktyvkar Town Court extended his detention until 19 February 2004. On 18 February 2004 the prosecution completed the investigation and submitted the case for trial. On 10 March 2004 the Syktyvkar Town Court extended the applicant ’ s detention.

The applicant was also accused of a criminal offence committed in the town of Ivanovo. In April 2004 the Syktyvkar Town Court ordered his detention in relation to this criminal offence too.

Subsequently, the proceedings were pursued before the courts in the town of Ivanovo.

On 3 August 2004 the Oktyabrskiy District Court of Ivanovo extended the applicant ’ s detention “pending investigation” (under Article 109 of the Code of Criminal Procedure, CCrP) until 5 October 2004.

On 13 September 2004 the District Court scheduled a preliminary hearing in the criminal case and also held that the applicant should remain in detention pending trial (Article 228 of the CCrP).

In December 2004 a local newspaper published an article recounting the relevant events and also indicating that the accused should be presumed innocent until proved guilty.

In the meantime, it appears that the district judge returned the case to the prosecution, which entailed, arguably, modification of the legal basis for the applicant ’ s detention pending trial (Article 255 of the CCrP) or pending investigation (Article 109 of the CCrP) with the necessary consequences for the calculation of the respective periods of detention.

In particular, on 20 December 2004 the judge decided to return the criminal case to the prosecutor (Article 237 of the CCrP) and held that the applicant should remain in detention. The applicant appealed. On 14 February 2005 the Ivanovo Regional Court upheld the judgment.

On 18 February 2005 the prosecutor received the case file.

On an unspecified date, the prosecutor sought a fresh detention order to be issued, apparently, under Article 109 of the CCrP since the case was again “pending investigation”.

On 14 March 2005 the District Court extended the applicant ’ s detention until 4 June 2005. On 24 March 2005 the Regional Court upheld the judgment. These court decisions were examined on 3 March 2006 by the Presidium of the Regional Court. The Presidium upheld them, stating that the applicant ’ s detention between October 2004 and March 2005 had been lawful.

In the meantime, the applicant lodged an application for release. On 1 February 2006 the District Court dismissed it. The applicant appealed. On 23 March 2006 the Regional Court stated that this decision was not amenable to appeal.

In the meantime, on 20 February 2006 the District Court extended the applicant ’ s detention until 23 May 2006. On 23 March 2006 the Regional Court upheld this extension.

It appears that, in the meantime, in February 2006 the court again returned the case to the prosecutor. Apparently, the case was resubmitted to the court in or around August 2006.

On 21 December 2006 the applicant was convicted of an armed robbery by a group of people. On 14 June 2007 the Regional Court upheld the judgment.

Mr Mityanin brought civil proceedings claiming compensation because there had been no valid court decision authorising his detention from 20 February to 10 March 2004 (see above). By judgment of 4 October 2012 the Town Court rejected his claim, considering that during the relevant time the case against the applicant had been pending before the trial court and thus his continued detention had been lawful. On 27 December 2012 the Komi Regional Court upheld the judgment.

(b) Another set of criminal proceedings and publication in the newspaper in 2008

On 12 January 2008 the authorities in Syktyvkar opened a criminal case against the applicant and others under Article 210 of the Criminal Code, concerning the creation and functioning of a “criminal community”.

On an unspecified date, Mr Mityanin was formally charged with this criminal offence.

On 18 January 2008 a local newspaper published an article “Boxers in detention” stating that it was the first time that a criminal case under this provision of the Criminal Code was initiated in the region and that it concerned famous sportsmen. According to the applicant, with reference to the official sources, the author of the article implied that the applicant had been a member of a notorious “gang”, that is he was guilty of the offence under Article 210 of the Criminal Code.

The article also read as follows:

“According to the information of the press office of the regional office of the Federal Security Service, two more persons, [the applicant ’ s first name and last name] and [another person ’ s first name and last name] are already serving prison terms for other offences. In December 2006 the Ivanovo court convicted them of robbery. [The applicant ’ s last name] was sentenced to eight years ’ imprisonment ...”

The article was accompanied by the photographs of the arrested people, including the applicant. The source of the applicant ’ s photograph is unclear.

Mr Mityanin brought court proceedings under Articles 152 and 152.1 of the Civil Code against the newspaper. He sought, inter alia , a refutation of the allegation that he was an active member of the criminal community, considering this statement to be defamatory.

By a judgment of 17 October 2011, the Syktyvkar Town Court of the Komi Republic rejected Mr Mityanin ’ s claims. The court considered that the applicant had not proven that the information in the article was untrue; that it corresponded to the fact of the ongoing criminal investigation, inter alia , in respect of the applicant. Noting that the newspaper was not required to verify the information coming from an official source, the court stated that the case disclosed an exception to the requirement of consent for publishing information relating to one ’ s private life and one ’ s photograph. In the court ’ s view, as required by a statutory exception, the case disclosed “an interest relating to public and State security” while the publication was aimed at informing the public of the “appearance of a person in relation to a criminal investigation”.

On 8 December 2011 the Komi Regional Court upheld the judgment, considering that the newspaper had acquired the contested information from an official source, had given reference to this source in the article and had merely recounted this information. The appeal court pointed out that the information was true and non-defamatory since it “corresponded to the information of the preliminary investigation”; it was important to provide the public with the appearance of the person in relation to a case receiving media coverage.

2. Mr Leonov

On 4 December 2003 the applicant was arrested in the town of Syktyvkar on suspicion of robbery and theft in Syktyvkar. On 5 December 2003 the Syktyvkar Town Court authorised his detention. On 29 January 2004 his detention was extended to 19 February 2004.

On an unspecified date, the prosecution completed the investigation and submitted the case for trial. In April 2004 the judge returned the case to the prosecutor. On 27 April 2004 an investigator ordered the applicant ’ s release under an undertaking not to leave the area of residence. However, the applicant was not released (see also below).

In separate proceedings, in March 2004 the applicant was charged in relation to an armed robbery in the town of Ivanovo. On 29 April 2004 the Ukhtinskiy Town Court of the Komi Republic authorised the applicant ’ s detention in relation to this robbery. The applicant did not appeal.

The applicant was then transferred to the town of Ivanovo for further proceedings.

On 24 June 2004 his detention was extended until 5 August 2004; on 3 August 2004 - until 5 October 2004.

On 7 September 2004 the case was submitted to the Oktyabrskiy District Court of the Ivanovo Region. On 13 September 2004 the District Court ordered that detention pending trial be maintained.

Later on, the judge returned the case to the prosecutor. It was resubmitted to the judge on unspecified date. On 20 December 2004 the District Court again returned the criminal case to the prosecutor and, inter alia , ordered him to redraft the bill of indictment. The District Court also ordered that the applicant be kept in detention pending the prosecutor ’ s action. On 14 February 2005 the Regional Court upheld the above decisions.

The applicant ’ s detention was extended in 2005 and 2006.

In August 2005 the criminal case was resubmitted for trial before the District Court.

It appears that in February 2006 the court again returned the case to the prosecutor. Apparently, the case was resubmitted to the court in or around August 2006.

On 21 December 2006 the applicant was convicted of a number of criminal offences. He was then transferred to a prison in the Komi Republic.

In 2012 the applicant lodged complaints concerning the lawfulness of his detention from 19 February to 29 April 2004. A prosecutor ’ s office refused to deal with this complaint. He challenged it. On 24 September 2012 the Syktyvkar Town Court dismissed his complaint. On 3 December 2012 the Komi Regional Court upheld it.

The applicant also brought proceedings against the chief officer of the remand centre, who had kept him there during the contested period. On 24 September 2012 the Town Court rejected his case. On 3 December 2012 the Regional Court upheld the judgment.

B. Relevant domestic law and practice

1. Protection of private life, reputation and honour

(a) Russian Constitution

Article 23 of the Constitution protects inviolability of one ’ s private life, honour and good name.

Article 24 of the Russian Constitution prohibits collection, storage, use or dissemination of information about one ’ s private life, with his or her consent.

Article 25 of the Constitution guarantees inviolability of one ’ s home. None should be permitted to enter one ’ s home despite the will of its residents, except in the cases prescribed by a federal law or by a court order.

(b) Civil Code

Article 152.1 of the Civil Code was introduced in 2006 and prohibits dissemination and use of one ’ s image (by way of a photograph or video, for instance) without one ’ s consent. Such consent is not required, inter alia , for the use of the image in connection with State interests or other public interests.

(c) Media Act of 27 December 1991

Section 41 of the Media Act does not contain any general rule concerning the use of one ’ s image in relation to criminal proceedings. However, it provides that the mass media is not allowed to divulge, in a direct or indirect manner, information leading to identification of a minor ’ s identity when this minor has committed or being suspected of having committed a criminal offence. The minor ’ s or his parents ’ consent for such divulgation is required.

Section 49 of the Act provides that a journalist is legally required to seek consent of the interested person for disseminating information relating to this person ’ s private life, except when “it is necessary for protecting public interests”.

(d) Personal Data Act of 27 July 2006

Section 3 of the Act defines “personal data” as any information directly or directly identifying a specific person.

A journalist can process such data, without the person ’ s consent, for the purposes of his professional activities and/or lawful activities of the mass media, provided that such processing does not violate the person ’ s rights (section 6 of the Act).

(e) Code of Criminal Procedure

Article 161 of the Code provides that an investigator may authorise disclosure of the “information” relating to the preliminary investigation of a criminal case, if such disclosure does not impinge upon the investigation and does not violate the rights or legitimate interests of the persons involved in the investigation. The investigator should determine the scope of disclosure.

2. Detention in criminal cases

In its ruling no. 23-P of 16 July 2015 the Russian Constitutional Court noted that Articles 109 and 255 of the Code of Criminal Procedure (CCrP) contained rules and time-limits relating to detention pending investigation and trial respectively; that, as stated in Article 237 of the CCrP, following the trial court ’ s decision to return the case to the prosecutor (for remedying defects are sufficiently serious but cannot be remedies in the course of the trial) the defendant ’ s detention was to be decided “taking into account the time-limits mentioned in Article 109 of the Code”. In the Constitutional Court ’ s view, the correct reading of this phrase did not mean that the relevant calculations were to be done with reference to the period already used under Article 109 of the CCrP during the investigation and with reference to the relevant statutory limit (six months, twelve months or eighteen months) beyond which the defendant should be released.

The Constitutional Court concluded that while the above time-limits did not apply, the detention matter was still to be decided with reference to the persistence of the grounds for detention; a reasonable time-limit should be indicated with reference to the circumstances preventing the trial court from proceeding with the examination of the criminal case and with reference to the time which is necessary for dealing with such circumstances (for instance, the omission to acquaint the defendant with the case file material).

COMPLAINTS

The applicants allege under Article 5 § 3 of the Convention that the domestic authorities failed to display special diligence in the conduct of the criminal proceedings in 2004-2006.

Mr Mityanin:

The applicant complains about the publication of 18 January 2008, mentioning his name and disseminating his photograph, as impinging upon his private life and violating the presumption of innocence.

The applicant complains under Article 5 of the Convention that his detention from 20 February to 10 March 2004 was unlawful and that he was refused compensation for it. He also alleges that his detention from 5 October 2004 to 14 March 2005 was unlawful, which, in its turn, adversely affected the relevant calculations under Articles 109 and 255 of the CCrP and thus seriously impinged upon the lawfulness of the ensuing period of his detention. Lastly, the applicant complains that his appeal against the decision of 1 February 2006 was not examined.

Mr Leonov:

The applicant complains under Articles 5 and 6 of the Convention that his detention from 20 February to 29 April 2004 was unlawful and that he had no prospect of success with a claim for compensation for this period.

The applicant alleges a violation of Article 6 § 1 of the Convention on account of his absence from the hearings in his civil cases, which resulted in the judgments of 24 September 2012, as upheld on appeal on 3 December 2012 .

COMMON QUESTIONS

Did the competent national authorities display “special diligence”, as required under Article 5 § 3 of the Convention, in the conduct of the criminal proceedings resulting in the trial judgment of 21 December 2006 ( Idalov v. Russia [GC], no. 5826/03 , § 140, 22 May 2012 )?

CASE SPECIFIC QUESTIONS

In respect of Mr Mityanin (appl. no. 11436/06):

1.1. Was there a violation of Article 5 § 1 of the Convention on account of the applicant ’ s detention from 20 February to 10 March 2004?

1.2. Did the refusal of compensation entail a violation of Article 5 § 5 of the Convention?

2.1. Was there a violation of Article 5 § 1 of the Convention in respect of the applicant ’ s detention from 5 October 2004 to 14 March 2005 (see Shteyn (Stein) v. Russia , no. 23691/06, §§ 90-96, 18 June 2009)? In particular, did the prosecutor ’ s delay in February and March 2005 in seeking judicial authorisation of the applicant ’ s detention “pending investigation” (Article 109 of the CCrP) entail a violation of Article 5 § 1 of the Convention for the period from 18 February to 14 March 2005? Did the detention order of 20 December 2004 authorise the applicant ’ s detention until 14 March 2005, in compliance with Russian law as interpreted by the Constitutional Court?

2.2. Having regard to the Presidium ’ s findings on 3 March 2006 and having regard to the rules concerning calculation of the terms under Articles 109 and 255 of the CCrP, was the period of the applicant ’ s detention under the order of 14 March 2005 in compliance with the requirements of Article 5 § 1 of the Convention?

3. Did the refusal to examine the appeal against the decision of 1 February 2006 (dismissal of an application for release) violate Article 5 § 4 of the Convention?

4. Was there a violation of Article 8 of the Convention on account of the publication dated 18 January 2008 and disclosure of the applicant ’ s photograph there (see, for comparison, Khuzhin and Others v. Russia , no. 13470/02, § 117, 23 October 2008, and, in the context of Article 10 of the Convention, Sciacca v. Italy , no. 50774/99, §§ 26-31, ECHR 2005 ‑ I, and Egeland and Hanseid v. Norway , no. 34438/04, §§ 53-65, 16 April 2009 ) ?

5.1. Has the applicant complied with the six-month rule for his complaint below under Article 6 § 2 of the Convention? If yes:

5.2. Concerning the statements in the above publication concerning the applicant ’ s membership of a criminal community (which is a criminal offence under Article 210 of the Criminal Code), did any public authority or public official violate the presumption of innocence protected by Article 6 § 2 of the Convention?

5.3. Did the State, including the civil courts in the present case, fail in their positive obligation to ensure protection of the presumption of innocence against the breach on the part of the newspaper?

In respect of Mr Leonov (appl. no. 22912/06):

1.1. Was there a violation of Article 5 § 1 of the Convention in respect of the applicant ’ s detention from 20 February to 29 April 2004?

1.2. Did the rejection of his related claims (the judgments of 24 September 2012) adversely affect enforceabi lity of his right under Article 5 § 5 of the Convention?

2. Was there a violation of Article 6 § 1 of the Convention on account of the applicant ’ s absence from the hearings in his civil cases, which resulted in the judgments of 24 September 2012, as upheld on appeal on 3 December 2012?