Communicated on 12 December 2013

FIRST SECTION

Application no. 27405/09 Maksim Sergeyevich KIYAN against Russia lodged on 16 April 2009

STATEMENT OF FACTS

The applicant, Mr Maksim Sergeyevich Kiyan , is a Russian national who was born in 1982 and lives in Omsk.

A. The circumstances of the case

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

1. The applicant ’ s questioning by the police on 25 June 2008

The applicant was in charge of a private warehouse. In June 2008 it turned out that a large sum of money (some 3,000,000 roubles , RUB) or a large amount of goods, deposited by another company at the warehouse, were missing.

According to the applicant, at 11 a.m. or noon on 25 June 2008 the police arrived at the warehouse and he was compelled to get into the police car and was taken to the Leninskiy police station in the town of Omsk . After some nine hours of questioning in the police station, the applicant made a written deposition acknowledging that he was liable for some RUB 500,000 and was ready to repay it to his employer.

The applicant also made a written acknowledgment of debt, which was subsequently considered by the civil courts as a unilateral contract (see below).

The applicant was allowed to leave the police station in the evening. He then received RUB 500,000 under a loan agreement from another person, giving his car as a security for repayment.

On 27 June 2008 the applicant complained about his allegedly unlawful arrest and the allegedly forced admission. An investigator of the Leninskiy prosecutor ’ s office carried out a preliminary inquiry. The arresting officers stated that the applicant “had been invited to come to the police station and was subjected to an interview resulting in a deposition”.

On 12 July 2008 the investigator refused to institute criminal proceedings for the following reasons:

“The Search and Operational Activities Act allows police officers to carry out “interviews”. The applicant was interviewed because, at the time, there were testimonies from his co-workers confirming that there was a complaint lodged with the police concerning the missing sum of money...It was incumbent on the police to detect and investigate complaints of criminal offences...”

On 12 September 2008 the Leninskiy District Court of Omsk upheld the refusal of 12 July 2008 on judicial review.

On 16 October 2008 the Omsk Regional Court upheld the first-instance judgment.

The applicant sought supervisory review of the above court decisions. On 21 May 2009 the regional court dismissed his request, considering that the applicant had voluntarily come to the police and had been interviewed, in compliance with section 6 of the Search and Operational Activities Act. For the supervisory review court, such interview could be legitimately held in a police station.

2. Civil proceedings

The applicant brought civil proceedings before the Kirovskiy District Court of Omsk, claiming annulment of his acknowledgment of debt (see above) and for declaring the security agreement (in respect of the car) null and void. The applicant claimed that he had admitted the debt under duress during his detention in the police station on 25 June 2008. In reply to the applicant ’ s request, on 20 November 2008 the district court issued a charging order in respect of the car but refused to order return of it in the applicant ’ s possession pending the proceedings. On 24 December 2008 the regional court upheld the charging order.

By a judgment of 3 February 2009 the district court dismissed the applicant ’ s claims. On 25 March 2009 the regional court heard the parties and upheld the judgment. The courts considered that the above-mentioned written deposition and the acknowledgment of debt amounted to voluntary acts aimed at remedying the damage caused by the applicant to his employer. Relying on the refusal of criminal prosecution against the police, the courts concluded that the applicant had not substantiated his allegation of duress. The applicant obtained a copy of the appeal decision in November 2009.

B. Relevant domestic law and practice

Section 6 of the Search and Operational Activities Act lists various operational activities such as an interview.

Section 11 of the Police Act (Federal Law no. 1026 - I of 18 April 1991) provided the police with a competence to summon a person in relation to matters and cases dealt with by the police; to order one ’ s compelled presence (in a police station) in relation to criminal cases or administrative offence cases, if the person failed, without a valid reason, to comply with a summons; to record depositions, information or obtain documents and certificates; to arrest a person in relation to pending criminal proceedings.

In a decision no . 9- О 05-47 of 28 November 2005 the Appeal Section of the Supreme Court of Russia considered that a preliminary interview ( оперативный опрос ) of a suspect by the police amounted to a deposition relating to the circumstances of the criminal offence committed by this person. Such interview does not require observance of the guarantees to be afforded to a suspect under Article 51 of the Constitution and the Code of Criminal Procedure. Therefore, the results of such interview should not be accepted as evidence in a criminal trial.

COMPLAIN T

The applicant complains under Article s 5 and 6 of the Convention that he was unlawfully deprived of liberty on 25 June 2008.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of liberty, within the meaning of Article 5 § 1 of the Convention, on 25 June 2008 (cf. M.A. v. Cyprus , no. 41872/10, §§ 185-195 , ECHR 2013 (extracts) , and Gahramanov v. Azerbaijan ( dec. ), no. 26291/06, 15 October 2013)? If yes, did such deprivation of liberty fall within the scope of one or several sub-paragraphs of Article 5 § 1 of the Convention? In particular:

- Was the applicant “arrested” “for the purpose of bringing him before the competent legal authority”? If yes, was there a violation of Article 5 § 1 of the Convention, inter alia , on account of the authorities ’ omission to compile an arrest record and to secure to him the procedural rights to be afforded to a suspect under the Code of Criminal Procedure?

- Was the applicant “arrested” “in order to secure the fulfilment of any obligation prescribed by law”? What was this obligation? Did he previously fail to comply it, before being “arrested”? Did the Police Act require that the person first be issued with a summons for an interview before being compelled to attend it on account of his or her failure to comply with the summons? Was there a violation of Article 5 § 1 of the Convention?

2. Alternatively, was there a restriction on the applicant ’ s right to liberty of movement, guaranteed by Article 2 § 1 of Protocol No. 4? If yes, was there a violation of this provision?