CASE OF KASPAROV v. RUSSIA
Preliminary objection joined to merits and dismissed;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority;Reasonable suspicion;Reasonably necessary to prevent offence);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1963 and lives in Moscow. 6. An EU-Russia summit was scheduled for 17 and 18 May 2007 to take place in Samara. On 18 May 2007 the applicant was travelling to Samara to take part in the opposition rally “March of Dissent” which had been organised to coincide with the summit. He was accompanied by several activists who were also travelling to the rally. At 8.30 a.m. the applicant and his fellow activists arrived at Terminal 1 of Sheremetyevo airport, Moscow, and attempted to check in for a flight to Samara (flight no. SU0697). The parties have submitted different versions of events as to what then happened. Each version is set out below. 7. The applicant submits that, when he presented his passport for identity check, police officer A. seized the passport and the ticket. The applicant was required to leave the check-in area and to follow officer A. He was taken to a police office on the second floor of the airport. Five other persons from his group were escorted from the check-in hall in the same manner. 8. At 11.20 a.m. the applicant and the five others were ordered to remain on the second floor of the airport and were informed that they would have to be questioned as to how they had purchased their allegedly forged tickets. 9. At 12.20 p.m. the operative duty police officer from Department of the Interior (Criminal Division), Captain N., questioned the applicant as to where he had bought his ticket. The applicant replied that his ticket had been purchased lawfully and refused to give any further explanation, relying on his constitutional right to remain silent. He maintains that he was under orders not to leave and that he was prevented from leaving the police office by an armed policeman who was guarding the doorway. The applicant remained at the police station until 1.30 p.m. 10. The applicant has submitted three documents in support of his version of events. 11. The first is a copy of the record (протокол) of search and confiscation completed by Captain N. It records that the applicant was searched and his aeroplane ticket confiscated, in accordance with Articles 21.1, 27.7 and 27.10 of the Code of Administrative Offences (see relevant domestic law at paragraphs 25 and 26 below). At the bottom of the record, the applicant has written that it had been explained to him that the search and seizure could be appealed to a higher authority and that, while the record had been handed to him at 1 p.m., the actual seizure of the ticket by officer A. had taken place at 8.30 a.m. at the check-in desk. 12. The second is a pro forma statement (объяснение), filled in by Captain N. In it, he records that he began filling out the statement at 12.40 p.m. and finished at 12.50 p.m., and that, when asked, the applicant refused to given an explanation for the ticket. On the statement the applicant has written that the ticket was obtained legally and that, relying on Article 51 of the Constitution (the right against self-incrimination) he refused to give any further explanation because he had been detained illegally in the departure hall without explanation. He has also written that, from 8.30 a.m. until 12.50 p.m., he had been deprived of his freedom of movement, and that no documents had been provided to him until then. 13. The third is a handwritten declaration made by the applicant and five others while at the airport. It reads: “We, the undersigned, state that today, 18 May 2007, at Sheremetyevo Airport [terminal] 1 we were prevented from taking flight 813 to Samara because [officer A.] seized our tickets at the check-in desk. At present we are at the airport building under the surveillance of the police officers, with our passports confiscated. At 11.20 police officers [A.], [C.] and [S.] categorically prohibited us to leave the second floor of the airport. At the same time, they indicated that we have to provide an explanation to the police officers because some tickets were allegedly forged. As of 12.20 we are still detained in the hall of the airport without any documents being provided to us. (signed)” 14. The Government submitted that, on 17 May 2007, the Department of the Interior’s Sheremetyevo airport branch received information on forged tickets being sold for the 18 May Moscow-Samara flight. On 18 May 2007, officers from the branch, acting on that information, were present at checkin and examined the tickets of all passengers on the flight. In the course of their checks, twenty tickets bearing signs of forgery were found: they had worn spots and the forms on which the tickets were printed appear dubious. Those tickets were confiscated and the passengers who had presented them were prevented from boarding. The tickets were subsequently sent for forensic examination, which showed thirteen tickets with signs of writing on top of the original text. 15. As regards the applicant’s allegations, the Government commented that their records indicated that his ticket for the flight had been seized but there was no record of his passport also being seized. If it had been, the applicant would have been able to make a written comment to that effect in the search record which had been drawn up by the police, but he had not done so. Under section 11 of the Police Act (see paragraph 24 below) the police had the right to seek an explanation from the applicant regarding the ticket, and he had been invited to provide one. The applicant’s allegation that he was questioned from 8.30 a.m. to 1.30 p.m. was not supported by the police records. 16. The applicant complained to the Moscow Transport Prosecutor’s Office about having been unlawfully detained by the police and requested that those responsible be prosecuted. 17. On 28 June 2007 the prosecutor’s office decided not to open criminal proceedings against the policemen. The decision stated, in so far as relevant, as follows: “... on 18 May 2007 the [police] together with the Sheremetyevo airport security service carried out a check of the passengers leaving on the flight no. 813, Moscow – Samara. During the check [they] discovered thirteen plane tickets with traces of forgery, which were seized. Later [the police] conducted an inquiry under Articles 144-145 of the Code of Criminal Procedure. When questioned, [officer A.] stated that on 17 May 2007 at 6 p.m. he received operative information that some forged tickets had been sold for the Moscow-Samara flight leaving on 18 May 2007 [...] On 18 May 2007 he verified this information by checking all passengers’ tickets [...] for that flight. ...Thirteen plane tickets were found to have traces of forgery, such as scuff marks, and also the ticket blanks used for printing the tickets were suspicious. [The police] seized the tickets and removed the passengers from the flight. [A.] wrote a report concerning these facts ... after that, the materials were sent to the [Sheremetyevo police unit]. When questioned, the Head of the Operational-Search Unit of the Aviation Division of the Department of the Interior, [S.], stated that, on 18 May 2007, on the occasion of the high-profile summit in Samara the policemen of the Aviation Division of the Moscow branch of the Department of the Interior, together with its subordinate units in the airports of the Moscow region, carried out operational search activities to identify persons of an extremist nature intending to organise mass riots. In this connection, the police carried out checks on persons leaving for Samara. On 18 May 2007 [S.], together with [the operative officer A.B.] arrived at the Sheremetyevo airport, where, at 7.30 a.m., check-in began for flight no.813 Moscow – Samara. Together with the [airport security screening service] they checked all passengers, which included screening their luggage with special equipment and checking their documents. During the check some [officers] noticed that tickets of certain passengers had additional non-standard notes, and, when inspected, these tickets raised doubts as to their authenticity. Because of that, thirteen suspected forged tickets were seized and the passengers were questioned about the circumstances of their purchase. Moreover, several passengers decided not to fly, without explaining why. On the same day similar checks were conducted for other flights to Samara. ... The [sales director of the airline] confirmed that the tickets were issued and sold [in a normal manner]. ... An expert examination of the twenty seized tickets ... revealed that seven tickets had no corrections of the original content. For thirteen of the tickets, the examination revealed that secondary text had been added on top of the original text in the fields ‘flight number’ and ‘time’. Therefore, the inquiry has established that [the policemen] had acted within their powers and with sufficient grounds when seizing the tickets of the passengers for flight no.813 Moscow – Samara. ... Held: 1. To refuse the institution of criminal proceedings further to the complaint about the commission of criminal offences of [abuse of powers] and [exceeding official powers] by the [eleven policemen involved] for absence of corpus delicti.” 18. The applicant challenged this decision before a court under the procedure set out in Article 125 of the Code of Criminal Procedure. He requested that the decision dispensing with criminal proceedings be declared unlawful and that the prosecutor’s office be ordered to remedy the shortcomings in it. 19. On 20 July 2007 the Golovinskiy District Court of Moscow examined and rejected the applicant’s appeal. It noted that the applicant had complained to the prosecutor’s office about his five-hour detention and about the seizure of his ticket to Samara. It also observed that the applicant had challenged the prosecutor’s refusal to open criminal proceedings claiming, inter alia, that the police had unlawfully restricted his liberty and in violation of his right to freedom of expression and to freedom of assembly. It also noted that the applicant had claimed that he had been deprived of his constitutional rights by the prosecutor’s office. 20. The court considered that the prosecutor’s office had taken its decision in accordance with the procedure provided for by law and remained within its competence while doing so. It upheld the finding that no criminal offence could be imputed to the police officers in question. The court found the applicant’s allegations about the unlawfulness of the ticket seizure to be unsubstantiated, finding that the seizure had been carried out in accordance with Articles 27.7 and 27.10 of the Code of Administrative Offences (see paragraph 26 below). The court further found that the applicant had been taken to the airport police quarters to provide an explanation for the purchase of his ticket. He had not been “isolated” at the police station. Therefore, there had been no grounds for applying the three-hour time-limit for the application of preventative measures in administrative offences cases (as provided for by the Code of Administrative Offences), or for the drawing up of a detention report (протокол о задержании). 21. The court concluded that the prosecutor’s decision was lawful and well-founded. 22. The applicant brought a cassation appeal against that decision. He claimed that the measures applied to him were contrary to the Code of Administrative Offences, and that there had been violations of his constitutional rights to liberty, freedom of expression and freedom of assembly. 23. On 20 August 2007 the Moscow City Court examined and dismissed the applicant’s appeal. It noted that the subject matter of the applicant’s appeal to court had been the lawfulness of the prosecutor’s refusal to institute criminal proceedings against the officers who had allegedly violated his constitutional rights. It upheld the decision not to institute criminal proceedings as correct in substance and form. It further held that the alleged breach by the police offices of statutory detention limits were outside the scope of the first-instance court’s [power of] review.