Lexploria

Information Note on the Court’s case-law 217

April 2018

Tsvetkova and Others v. Russia - 54381/08, 10939/11, 13673/13 et al.

Judgment 10.4.2018 [Section III]

Article 5

Article 5-1

Deprivation of liberty

Application of domestic administrative escort, arrest and detention procedure: violations

Article 2 of Protocol No. 7

Appellate review only after sentence of administrative detention had been served in full: vio lation

Facts – The applicants were subject to the domestic administrative escort, arrest and detention procedure under the federal Code of Administrative Offences (CAO) which empowers the police to apply such measures. The CAO defines the procedure of esco rting someone to a police station as being that by which an offender is compelled to follow the competent officer for the purposes of compiling an administrative-offence record when it cannot be done on the spot. In exceptional cases relating to the need f or a proper and expedient examination of an administrative case or for securing the execution of any sentence imposed for an administrative offence, the person concerned may be placed under administrative arrest. Sentences of administrative detention shoul d be executed immediately after the delivery of the relevant judgment by a court.

Ms Tsvetkova, who was escorted to the police station on suspicion of shoplifting but was not subsequently prosecuted, complained that the record of her administrative arrest contained no references to the grounds or reasons for her arrest, in breach of Article 5 § 1 of the Convention.

Mr Bgantsev was accused of using foul language at his work place. He was escorted to the police station where he was subjected to the arrest pr ocedure, detained, convicted of minor hooliganism and sentenced to five days’ detention. In the Convention proceedings, he submitted that the only reason and legal ground for his arrest was listed in the administrative-offence record and read “for taking a decision”. There had been nothing to prevent the police officer from compiling the record on the spot, as required by the CAO.

Mr Andreyev was taken to the police station on suspicion of evading military service, but was charged with a different administrative offence of an unpaid fine for a traffic offence. He was not released after the administrative-offence record had been draw n up, but was instead placed in a detention centre for reasons which were not specified and sentenced to two days of detention for the offence. In the Convention proceedings, he argued that there had been no lawful grounds or exceptional circumstances for keeping him in detention.

Mr Dragomirov was arrested for being drunk and looking untidy in a public place and taken to the police station. He was subsequently convicted of an administrative offence and sentenced to five days’ administrative detention. Upo n appeal his conviction was quashed owing to a serious defect in the prosecution evidence after he had already served part of his sentence.

Mr Torlopov took part in a demonstration in the vicinity of a court building. He was taken to the police station an d subjected to administrative arrest before later being released. In the Convention proceedings, he argued there had been no reasonable grounds for suspicion that he had taken part in a public event in a prohibited area. He argued that the applicable regul ations were unforeseeable in their application and gave room for arbitrary actions on the part of the authorities.

Mr Svetlov was accused of an administrative offence because he had no valid driving licence. He was taken to the police station, placed unde r administrative arrest, convicted of the offence and sentenced to five days’ administrative detention. The applicant appealed but continued to serve his sentence while his appeal, which was later dismissed, was pending. In the Convention proceedings, he a lleged, inter alia , that the lack of suspensive effect of his appeal against the sentence of administrative detention had violated his right to the presumption of innocence (Article 6 § 2 of the Convention).

Law – Article 5 § 1 of the Convention

(a) Administrative escorting and administrative arrest (Ms Tsvetkova, Mr Andreyev, Mr Bgantsev and Mr Torlopov)

(i) Deprivation of liberty – The applicants’ detention in police stations under administrative arrest fell within the scope of Article 5 § 1 and ad ministrative escorting (including the taking of a person to a police station and his or her presence there) amounted to “deprivation of liberty”. Nothing suggested the applicants could have freely decided not to follow the police officers to the station or , once there, could have left at any time without incurring adverse consequences. Throughout the events there was an element of coercion which, notwithstanding the relatively short duration of the procedure in certain cases was indicative of a deprivation of liberty.

(ii) Applicability of any of the sub-paragraphs of Article 5 § 1 – It was significant that each applicant was suspected of an “offence” punishable under the CAO. There was no reason to doubt that the domestic statutory framework per se was com patible with the spirit and purpose of Article 5 § 1 (c) of the Convention.

(iii) Compliance – In Ms Tsvetkova’s case it was not clear from the record of administrative arrest, nor was it convincingly established in the course of a pre-investigation crim inal inquiry, what administrative offence the applicant was suspected of. Yet it had been essential to specify this information, inter alia , in view of the domestic requirement that administrative arrest could exceed three hours only in relation to offence s punishable by detention.

Likewise, the Court was not satisfied that Mr Andreyev’s and Mr Bgantsev’s administrative arrests had complied with Russian law so as also to be “lawful” within the meaning of Article 5 § 1 (c). In Mr Andreyev’s case, no justifi cation was provided, as required by Article 27.3 § 1 of the CAO, to show the administrative arrest was effected in an “exceptional case” or that it was “necessary for the prompt and proper examination” of the case or for “ensuring enforcement of the penalt y imposed in the case”, which, as it happens, concerned a charge relating to a delay in paying a fine of EUR 7. Mr Andreyev’s thirty-nine-hour detention was thus unjustified, arbitrary and disproportionate.

Similarly, while there was no reason to doubt th at the arresting officer had a reasonable suspicion that Mr Bgantsev had committed an administrative offence, the Court was not satisfied that it was compliant with domestic law to hold him in detention overnight following the compiling of the administrati ve-offence record as there was nothing to suggest that there was a risk of his reoffending, tampering with evidence, influencing witnesses or fleeing justice or that such considerations were pondered and justified his deprivation of liberty.

In Mr Torlopo v’s case, the Court considered that the applicable normative framework was not sufficiently foreseeable and precise in its application to avoid the risk of arbitrariness and so was not satisfied that his taking to the police station and retention there wer e “lawful” within the meaning of Article 5 § 1 (c).

Conclusion : violations in respect of Ms Tsvetkova, Mr Bgantsev, Mr Andreyev and Mr Torlopov (unanimously).

(b) Sentence of administrative detention (Mr Dragomirov) – The Court reiterated that a period o f detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of d etention.

Mr Dragomirov had already served part of the sentence before the appeal court found, in substance, that no offence had been committed. The findings made on appeal disclosed a serious defect in the trial judgment (the police officer’s report havi ng been demonstrably untruthful) adversely affecting the pertinent period of detention. Having regard to the quashing of the trial judgment by the appeal court and the gravity of the underlying defects identified in relation to the trial proceedings, the C ourt considered that in the particular circumstances of the case there was a sufficient basis to conclude that the applicant’s detention “after conviction”, which he had already served in part, was not “lawful” within the meaning of Article 5 § 1 (a) of th e Convention.

Conclusion : violation in respect of Mr Dragomirov (unanimously).

Article 2 of Protocol No. 7 and Article 6 § 2 of the Convention ( Mr Svetlov ): The Court had to determine whether the lack of suspensive effect of an appeal against a trial jud gment imposing the sentence of administrative detention and the examination of such an appeal after the sentence had already been served violated Article 6 § 2 of the Convention or Article 2 of Protocol No. 7.

(i) Article 2 of Protocol No. 7 – In contrast to the position in Shvydka v. Ukraine, the Court highlighted that under Russian domestic law a trial judgment did not “enter into force” immediately. While it was possible to lodge an appeal within ten days of the trial judgment, a first-instance court wa s formally required to forward the statement of appeal to the appellate court on the day of its receipt; and the appeal court was formally required to examine it within one day. It was also noted that under the CAO an appeal court was empowered to review t he case in its entirety, and was not confined to examining the scope of the arguments raised in the statement of appeal. Therefore, there had been procedural safeguards in place.

Nevertheless, the essential factual elements and legal matters at the heart of the Court’s findings in Shvydka also applied to Mr Svetlov’s case. Although the CAO required that appeal proceedings be expedited within certain time constraints, the fact remained that there had been a delay and the appeal was examined after he had ser ved the sentence in full. The Court was not convinced that any particular feature of the administrative-offence procedure or the consideration of expediency outweighed the disadvantage caused to the defendant vis-à-vis his right of appeal by the absence of any alternative to the immediate execution of the penalty of administrative detention.

Conclusion : violation in respect of Mr Svetlov (unanimously).

(ii) Article 6 § 2 of the Convention – While Mr Svetlov had remained protected under Article 6 § 2 as r egards possible adverse statements in appeal proceedings relating to questions of both fact and law, the mere fact that an appeal against the trial judgment did not have suspensive effect vis-à-vis enforcement of the penalty did not entail a violation of t hat provision.

Conclusion : no violation in respect of Mr Svetlov (unanimously).

The Court also held, unanimously, that there had been a violation of Article 5 § 5 in respect of Mr Andreyev, but no violation of that provision in respect of Mr Dragomirov, a nd that there had been violations of Articles 3 and 13 on account of Mr Bgantsev’s conditions of detention and lack of effective remedies.

Article 41: awards ranging from EUR 1,000 to EUR 3,600 in respect of non-pecuniary damage.

(See Shvydka v. Ukraine , 17888/12, 30 October 2014, Information Note 178 )

Click here for the Case-Law Information Notes