CASE OF KHARIN v. RUSSIA
No violation of Art. 5-1-e;Remainder inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
6. The applicant was born in 1973 and lives in Arkhangelsk. 7. According to the Government, in the evening of 11 October 2001 the Oktyabrskiy District police station received an emergency call from a local shop. Police officers were sent to the shop to investigate. On their arrival a shop security guard, Mr G., informed the police officers that a drunken man, who was subsequently identified as the applicant, was using offensive language and shouting in the shop, not responding to reprimands and disturbing the work of the shop. The Government provided written statements made by Mr G. and Ms V., a shop assistant, on 14 May 2005. The statements, in so far as relevant, read as follows: “In the autumn of 2001 (October) I was on duty in the shop... At approximately 9 p.m. a man, who was drunk, entered the shop and went to the department of the shop selling beverages. Subsequently he had an argument with a shop assistant, Ms V. I do not know the reason behind the argument. Ms V. asked me to calm the man down. When [the man] entered the sales area, he, being drunk, shouted loudly, using offensive language. Handwritten by me.” “In the autumn of 2001 (I do not remember the date), in the evening...., an unknown man entered the shop and, despite the fact that he was already drunk, began demanding that I sell him alcoholic beverages, and, his request being refused, he began using offensive language, offending shop assistants [and] disturbing the functioning of the shop; I applied to the guard in the shop [Mr G.] for assistance. [Mr G.] escorted the man from the shop; however, several minutes later the man returned and began harassing the shop guard [Mr G.], using offensive language, shouting that he would fire the shop staff; subsequently [Mr G.] pressed an emergency button and police officers arrived; [they] escorted the man from the shop and arrested him.” 8. The applicant was taken to a sobering-up centre of the Arkhangelsk Town Police Department. An officer on duty at the sobering-up centre drew up medical report no. 22. The report, provided to the Court by the Government, consisted of a one-page printed template, in which the dates, the officer's and applicant's names, the applicant's personal data and circumstances surrounding his arrest were filled in by hand. The relevant part read as follows (the pre-printed part in roman script and the part written by hand in italics): “The arrestee was discovered in an intoxicated state... by a police patrol at 9.20 p.m. in the street ... near the house. The drunken [person] exhibited the following [behaviour] at the place of his arrest strong smell of alcohol, shaky walk, scrambled speech, disorientation in time. A medical assistant, Ms S., performed a medical examination, during which a moderate state of intoxication was identified. Symptoms (which must be underlined): smell of alcohol on the breath, excited behaviour, aggressive language, blurred vision, blood pressure was not measured, pulse was not measured, shaky gait, weak legs, impaired movement coordination.... Also established during the medical examination: Conscious when admitted [to the sobering-up centre]. Mydriatic pupils. [the remaining handwritten text is illegible]” The report was signed by the officer on duty, the two police officers who had escorted the applicant to the sobering-up centre, Mr Sa. and Mr Ve., and the medical assistant, Ms S. In addition, the two escorting police officers made a note in the report alleging that the applicant was aggressive and that he had tried to initiate a fight. The applicant refused to sign the report. 9. At the centre the applicant's hands were tied to a bed with “soft ties” because he “had behaved aggressively and gestured actively”. He remained tied up for about an hour. 10. On 12 October 2001, at about 9.40 a.m., the applicant was released from the centre and brought to the Oktyabrskiy District Police Department where a report on an administrative offence was drawn up. The report indicated that the applicant had committed an offence under Article 158 of the RSFSR Code on Administrative Offences. It stated that the applicant had been arrested by the police on 11 October 2001 because he had been drunk, used foul language in a public place, thereby disturbing public order. 11. The applicant was ordered to pay 150 Russian roubles (RUB, approximately six euros) “for medical assistance provided in the sobering-up centre”. 12. On 19 October 2001 the police officers, Mr Sa. and Mr Ve., wrote similar reports to the head of the sobering-up centre, describing the circumstances of the applicant's arrest and placement in the centre. According to the police officers, in response to their request to board a police car, the applicant, who had been in a moderate state of alcohol intoxication, had started waving his hands about, using offensive language and throwing his bag around. After he had been placed in the police car, he had attempted to break metal bars and had banged on the door. He had also behaved aggressively in the sobering-up centre, waving his hands about and attempting to start a fight. Soft ties had been applied to him for a short period of time. According to the report, on admission to the centre the applicant did not have any money. 13. On the same day a deputy head of the sobering-up centre drew up a report, stating that on 11 October 2001, in the street near a house, a police patrol car had found the applicant, who was in a moderate state of alcohol intoxication. The deputy head provided the following description of the subsequent events. The applicant had been brought to the sobering-up centre where a medical assistant, Ms S., confirmed that he was moderately drunk. After the applicant had been asked to go into a room he had resisted, trying to initiate a fight with an officer, had acted aggressively and had used offensive language. The applicant had been tied to a bed with soft tissues for no longer than an hour and had calmed down. 14. Two days later the medical assistant, Ms S., wrote an explanatory statement addressed to the head of the sobering-up centre. The statement read as follows: “On 11 October 2001, at 10.30 p.m., [the applicant], who was in a state of alcohol intoxication, was brought to the duty unit of the sobering-up centre. [The state of intoxication was determined] on the following grounds: strong smell of alcohol on the breath, barely able to stand, unsteady walk. Coordination was impaired. Speech was blurred. The face and whites of the eyes were bloodshot, [the applicant] could not do coordination exercises and was unsteady in the Romberg position (standing upright with eyes closed). [The applicant] was asked to undress for a further medical examination. [He] acted aggressively, waved his hands about, attempted to start a fight, and began swinging his bag around. [He] refused to undress voluntarily and was forced to undress; [he] refused to go to a room to rest. Soft ties were applied to him from 10.30 to 11.30 p.m. to prevent damage to him and other individuals. During that [hour] the ties loosened up. On a number of occasions while he was in the sobering-up room he knocked and asked to be released and said that he was being detained unlawfully. On his release he did not make any complaints, [he] refused to sign [the report] insisting that on his admission [to the sobering-up centre] he had had money with him. He was given back personal belongings in compliance with the list which had been drawn up on his admission.” 15. The applicant asked the Arkhangelsk Town Prosecutor's office to institute criminal proceedings against officials of the sobering-up centre, claiming that they had unlawfully seized more than RUB 8,000 from him. 16. On 26 October 2001 a senior assistant to the Arkhangelsk Town Prosecutor dismissed the applicant's complaint, finding that there was no case to answer. The senior assistant concluded that there was no evidence in support of the applicant's allegation that he had had money on him before his admission to the sobering-up centre. 17. The applicant lodged a complaint with the Oktyabrskiy District Court seeking annulment of the decision of 26 October 2001. In addition, he brought a complaint with the Lomonosovskiy District Court of Arkhangelsk against the sobering-up centre of the Arkhangelsk Town Police Department. While not disputing that on 11 October 2001 he had been under the influence of alcohol, the applicant claimed that he had been arbitrarily detained in the sobering-up centre on the basis of an internal regulation adopted by an order of the Ministry of Interior. He further argued that he had been ill-treated at the centre as the police officers had forced him to stay in a very painful position known as “the swallow” [ласточка]. In addition, the applicant alleged that he had been forced to pay for medical assistance although such assistance was never provided. 18. On 29 October 2002 the Lomonosovskiy District Court dismissed the applicant's complaint against the sobering-up centre. It grounded its findings on medical report no. 22 drawn up in the centre on 11 October 2001 and statements by the medical assistant, Ms S., the police officer, Mr V., who had escorted the applicant to the centre, and the head of the centre. The District Court found as follows: “By virtue of paragraph 18 of [the Regulations on Medical Sobering-up Centres at Town (District) Police Stations], approved by Order no. 106 of the USSR Ministry of Interior on 30 May 1985, individuals in a state of alcohol intoxication (moderate or severe) who are in streets, public gardens, parks, stations, airports and other public places, are taken to medical sobering-up centres if their appearance offends human dignity and public morals. Due to the fact that [the applicant] was in a moderate state of alcohol intoxication, and his appearance – his walk was unsteady, he had a hard time keeping himself upright, he talked incoherently, he reeked of alcohol - offended human dignity and public morals, officials of the sobering-up centre had the right to take him to the sobering-up centre and keep him there until he sobered up. ... By virtue of paragraph 9 of [the Instruction on Provision of Medical Assistance to Persons Brought to Medical Sobering-up Centres] a medical assistant ... should determine the period necessary for an individual to sober up; however it should not exceed twenty-four hours. As follows from the case file materials [the applicant] was detained in the medical sobering-up centre from 10.30 p.m. on 11 October to 9.40 a.m. on 12 October 2001, which is no longer than twenty-four hours. ” The District Court also held that the payment for medical assistance had been lawful and that the applicant had paid the sum of RUB 150 voluntarily. It did not address the alleged disappearance of cash. 19. The applicant appealed against the judgment of 29 October 2002. In his statement of appeal he complained that he had been unlawfully detained against his will, that the District Court had grounded its judgment solely on statements by the officials of the sobering-up centre and that his unsteady walk and incoherent speech before his detention in the sobering-up centre had not posed a threat to anyone, including himself. 20. On 3 March 2003 the Arkhangelsk Regional Court upheld the judgment of 29 October 2002, endorsing the reasons given by the Lomonosovskiy District Court. 21. On 5 December 2003 the Oktyabrskiy District Court quashed the assistant prosecutor's decision of 26 October 2001 and sent the case for an additional inquiry, noting that the assistant prosecutor had failed to question the applicant in relation to his complaint about the money allegedly seized in the sobering-up centre. 22. Two weeks later a deputy Oktyabrskiy District Prosecutor closed the additional inquiry, noting that it was impossible to question the applicant. According to the deputy prosecutor, the applicant had not responded to summons sent by the prosecutor's office on a number of occasions. Moreover, police officers who had been sent to his place of residence could not find him. The applicant was served with a copy of the decision. No appeal followed. “Minor disorderly acts, that is utterance of obscenities in public places, abusive solicitation and other similar acts that breach the public order and peace, - shall be punishable with a fine of 10 to 15 minimum wages or with correctional works for one to two months compounded with withholding of 20% days.” 23. The relevant provisions of the Regulations on Medical Sobering-up Centres read as follows: “18. Persons in a state of alcohol intoxication who are in streets, public gardens, parks, stations, airports and other public places, are taken to medical sobering-up centres if their appearance offends human dignity and public morals or if they have lost the ability to walk unaided or could cause damage to others or to themselves ... ... 44. Once the person placed in a medical sobering-up centre has sobered up completely, a doctor shall examine him for the second time and give an opinion on the possibility of his release. The period for holding a person in a sobering-up centre shall, in any event, be no shorter than three hours, but no longer than twenty-four hours ...”