Information Note on the Court’s case-law 200

October 2016

Kasparov v. Russia - 53659/07

Judgment 11.10.2016 [Section III]

Article 5

Article 5-1

Deprivation of liberty

Five hours’ detention by airport police purportedly investigating claims of ticket forgeries: violation

Facts – In May 2007 the applicant and a group of fellow activists attempted to travel to Samara (Russia) to take part in an opposition rally whi ch had been organised to coincide with an EU-Russia summit. However, they were prevented from boarding their flight from Moscow by police officers who alleged that their tickets were forged. The facts were disputed, but the European Court accepted that whe n the applicant attempted to check-in at 8.30 on the morning in question his ticket and passport were seized and he was asked to follow a police officer from the check-in hall to a separate room where he remained – with an armed guard stood in the doorway – while being questioned and searched until 1.30 p.m.

Law – Article 5 § 1: The Court found that the applicant had been deprived of his liberty within the meaning of Article 5. Four factors were decisive in that finding: (i) the applicant had had little cho ice but to follow the police officer as a refusal would have meant disobeying an ostensibly lawful police order; (ii) the presence of the armed guard in the doorway, which clearly prevented him from leaving the room; (iii) the fact that the Government’s co ntention that he had not been arrested could not decisively affect the Court’s conclusion as to the existence of a deprivation of liberty; and (iv) the applicant’s detention had far exceeded the time strictly necessary for verifying the formalities normall y associated with airport travel (contrast with the position in Gahramanov v. Azerbaijan (dec.), 26291/06, 15 October 2013, Information Note 168 ); instead, the police had purportedly began to investi gate a suspected offence of forgery, by questioning and searching the applicant and drawing up a report.

The deprivation of liberty clearly did not fall under any of the permitted grounds of detention under sub-paragraphs (a), (b) (d), (e) or (f) of Articl e 5 § 1. Nor did it come within sub-paragraph (c) of that provision (reasonable suspicion of having committed an offence) as the Government had produced no evidence capable of satisfying the Court that any forgery had been committed, still less that the ap plicant was reasonably suspected of having participated in it. In any event, the authorities had not officially acknowledged the applicant’s deprivation of liberty or complied with the formalities required for a person’s detention. An unrecorded deprivatio n of liberty, in the absence of any plausible explanation by the Government, was in itself sufficient to find a violation of Article 5 § 1.

Conclusion : violation (unanimously).

The Court also found, unanimously, a violation of Article 11 of the Convention in that the interference with the applicant’s right to freedom of assembly caused by his arrest and detention was not prescribed by law.

Article 41: no claim made in respect of damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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