CASE OF TSVETKOVA AND OTHERS v. RUSSIA
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of sentence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom
4. This application was lodged on 20 October 2008 by Svetlana Ivanovna Tsvetkova, who was born in 1972 and lives in Irkutsk. 5. At 10 p.m. on 1 January 2008 Officer S. escorted the applicant to the police station, in accordance with Article 27.2 of the Federal Code of Administrative Offences (“the CAO”) (see paragraph 67 below), on suspicion of shoplifting. 6. Officer B. compiled an arrest record under Article 27.3 of the CAO (see paragraph 69 below). The administrative arrest record reads as follows: “I, Officer B., ... compiled the present administrative arrest record in respect of: [the applicant’s name, date of birth, address] ... who has been escorted to ... on 1 January 2008 at 10 p.m., on account of an administrative offence under Article [blank] of the CAO. Reasons for the arrest (Article 27.3 of the CAO): [blank] ...” 7. According to the applicant, after she had been taken away by the police, her minor son (who had apparently been with her in the shop) had been left unattended in the cold. The applicant was then subjected to a humiliating body-search procedure and was asked to take off her clothes, remaining in her underwear. She was then kept with drunk people in a small cell with no seats and no toilet. 8. In her application to the Court, the applicant specified that she had been released at 3 a.m. on 2 January 2008. In her observations before the Court, she specified that she had been released “after 4 a.m.”. According to the Government, the applicant was released at 0.35 a.m. 9. The applicant was not subsequently prosecuted for an administrative offence or a criminal offence. 10. Considering that the police actions in respect of her and the degrading treatment to which she had been subjected were sufficiently serious so as to amount to a criminal offence, on 27 May 2008 the applicant sought the institution of criminal proceedings against officer S., referring, inter alia, to the unlawful deprivation of liberty. 11. On 16 June 2008 an investigator refused to open a criminal case, finding that the officer had not committed any abuse of power, which was a criminal offence punishable under Article 286 of the Criminal Code. The investigator referred to a statement from B. affirming that the applicant had been taken to the police station on suspicion of theft. 12. On 20 June 2008 a superior officer overruled the refusal to open a case. A new refusal was issued on 30 June 2008 by the same investigator. That was also then overruled. 13. A further refusal was issued on 11 December 2008 and the applicant sought a judicial review. On 19 January 2009 the Oktyabrskiy District Court of Irkutsk confirmed the refusal. On 26 February 2009 the Irkutsk Regional Court set aside the judgment, considering that the applicant’s allegations concerning the unlawfulness of her arrest had not been examined. 14. The District Court then declined jurisdiction in favour of another court, but that was declared unlawful on appeal. 15. On 8 May 2009 the District Court discontinued the case because on 7 May 2009 the impugned refusal to prosecute had been overruled by a superior officer. However, a new refusal was issued on 12 November 2009 as regards offences under Articles 285, 286 and 293 of the Criminal Code. This refusal was then upheld by a final judgment of the Regional Court on 9 September 2010. 16. This application was lodged on 28 January 2011 by Aleksandr Vitalyevich Bgantsev, who was born in 1958 and lives in Volgograd. The applicant was represented before the Court by Ms Y. Lepilina, a lawyer practising in the Volgograd Region. 17. On 30 August 2010 the applicant’s superior, Mr I., called the police to report that the applicant had used (unspecified) foul language at his work place. Officer O. ordered the applicant to accompany him to the police station. The applicant refused and said that nothing prevented the officer from compiling an administrative-offence record on the spot. The officer insisted, stating that it would be more convenient for him to do it at the police station. The applicant obeyed and was escorted to the police station at around 1 p.m. (in accordance with Article 27.2 of the CAO). At 3.40 p.m. he was subjected to the arrest procedure (Article 27.3 of the CAO). The arrest record reads as follows: “[The applicant] was escorted to the police station at: 3.40 p.m. On account of: an administrative offence under: Article 20.1 of the CAO For the purpose(s) of Article 27.3 of the CAO: for taking a decision.” 18. Officer O. compiled the administrative-offence record, which reads as follows: “[The applicant] used foul language in the presence of Mr I. and continued his unruly behaviour, despite being asked to stop. Thus, [the applicant] committed an offence under Article 20.1 of the CAO. Witnesses to the offence: Mr K.; Mr M.” 19. The applicant spent the night at the police station. 20. On 31 August 2010 the applicant was taken before a justice of the peace, who held a hearing at which he examined the applicant, as well as I., K. and M. On the same day, the justice of the peace convicted the applicant of minor hooliganism (Article 20.1 of the CAO) and sentenced him to five days of detention. 21. The applicant started to serve the sentence on the same day, in the police station. Between 30 August and 4 September 2010 he was locked in cells measuring six square metres and accommodating, on average, four detainees. Each cell was equipped with two benches some 35 cm in width. There was no window and no ventilation system. The other detainees smoked cigarettes, which caused discomfort to the applicant, who was not a smoker. There was no bed or bedding. The applicant was not provided with food or allowed outdoors. Access to a toilet (which was apparently outside the cell) was available every four hours (or sometimes every eight hours). The applicant submitted written statements from three co-detainees in support of his allegations. 22. The applicant was released at 3.40 p.m. on 4 September 2010. 23. On 4 October 2010 the Krasnoarmeyskiy District Court of Volgograd held an appeal hearing and examined the applicant, I., K., M. and Officer O. The appellate court upheld the judgment of 31 August 2010. On 3 November 2010 the Volgograd Regional Court upheld the judgments following a review. 24. This application was lodged on 1 February 2013 by Pavel Vladimirovich Andreyev, who was born in 1989 and lives in Syktyvkar. The applicant was represented before the Court by Ms I. Buryukova, a lawyer practising in the Moscow Region. 25. On 9 December 2011 the applicant distributed leaflets in various police stations, urging the police not to use force to disperse public gatherings which were to be held on 10 December 2011, after the contested elections to the State Duma earlier that month. 26. At 11 p.m. the traffic police took the applicant to the police station on suspicion of evading military service. At 11.50 p.m. the applicant was charged with an administrative offence under Article 20.25 of the CAO on account of an unpaid fine of 300 roubles (RUB) (equivalent to 7 euros (EUR)) for a traffic offence. The charge concerning evasion of military service was not pursued. 27. The arrest record reads as follows: “[The applicant] was escorted to the police station: at 11.30 p.m. On account of an administrative offence: under Article 20.25 of the CAO. For the purposes of Article 27.3 of the CAO: for compiling an administrative record.” 28. The applicant was not released after the administrative-offence record had been drawn up, but was instead placed in a detention centre at 2 a.m., for reasons which were not specified. 29. At 3 p.m. on 11 December 2011 the applicant was taken before a justice of the peace, who then sentenced him to two days of detention for the offence under Article 20.25 of the CAO. The applicant was then taken back to the detention centre and was released at around 11.30 p.m. 30. The applicant appealed. On 31 January 2012 the Syktyvkar Town Court upheld the conviction. 31. The applicant brought proceedings, under Chapter 25 of the Code of Civil Procedure (“the CCP”), to challenge the deprivation of his liberty from 2 a.m. on 10 December 2011 to 3 p.m. the next day. By a decision of 12 May 2012, the Town Court discontinued the proceedings. On 2 August 2012 the Supreme Court of the Komi Republic upheld the decision. On 4 March 2013 the cassation instance of the same court confirmed it. The courts considered that while neither the CCP nor the CAO set out a separate procedure for challenging the measures of being escorted to the police station or of administrative arrest, arguments concerning those measures could be raised during an examination of the related CAO charges against the applicant, as well as in an appeal against a decision that had been taken on such charges. 32. In separate proceedings, the applicant lodged a claim for compensation, arguing that Article 27.4 required that a record of administrative arrest was to specify reasons for the arrest; the record of his arrest referred to the need to compile the administrative-offence record; such record had been compiled late at night on 9 December 2011; thereby the justification for his arrest had been exhausted and could no longer justify his continued deprivation of liberty on 10 and 11 December 2011. The applicant concluded from the above that the unlawful deprivation of liberty on those dates served as a legal basis for obtaining compensation on account of the non-pecuniary damage suffered. 33. By a judgment of 19 September 2012, the Town Court dismissed the applicant’s claim. The court considered that the matters relating to his being taken to the police station and the ensuing administrative arrest had been examined in the CAO case and there were therefore no reasons to award compensation. On 20 December 2012 the Supreme Court of the Komi Republic upheld that judgment. On 27 May 2013 the same court dismissed a cassation appeal lodged by the applicant, stating as follows: “... [The applicant] was escorted to the police station for the compiling of a record of administrative offence ... With a view to the correct and expedient examination of the case, he was subjected to the measure of administrative arrest ... The actions of the police officers relating to the escorting and the arrest procedures were assessed by the courts dealing with the administrative charge and were, in substance, declared lawful ... The claimant’s argument that the courts in a civil case should assess the lawfulness of the police actions is based on a wrong interpretation of the law ... It is not appropriate to challenge the procedure of administrative arrest within the procedure under Chapter 25 of the Code of Civil Procedure, where there is a decision to engage the liability of a person for an administrative offence ...” 34. This application was lodged on 5 September 2014 by Aleksey Olegovich Dragomirov, who was born in 1980 and lives in Roslavl in the Smolensk Region, Russia. 35. On various dates between 2001 and 2008, including from 9 to 11 June 2008 (see below), the applicant was kept in a temporary detention centre. According to him, the cells had no toilet; he had had to relieve himself in a bucket; there was no running water available in the cells, and no access to shower facilities. 36. According to a written report by Officer S., at 2.45 p.m. on 9 June 2008 he arrested the applicant for being drunk and looking untidy in a public place, and took him to the police station where he then remained until he sobered up. It appears, however, that the applicant was actually arrested (apparently, by another officer) and then tested for alcohol intoxication around 6 p.m. and 10.45 p.m. respectively (see paragraph 38 below). On 10 June 2008 before a justice of the peace the applicant admitted that he had consumed vodka with a friend in the morning the day before but denied that he had appeared untidy at 2. 45 p.m. or had been drunk or otherwise behaving in a manner offending public morals or human dignity. On the same day, referring to S.’s report, a medical report (the contents of which are not clear) and an arrest record, the justice of the peace convicted the applicant of an administrative offence under Article 20.21 of the CAO on account of being drunk in a public place at 2.45 p.m. on 9 June 2008 while having an untidy appearance, thus offending human dignity and public morals. The justice of the peace sentenced him to five days of administrative detention. 37. The applicant started to serve his sentence on 10 June 2008. 38. The applicant appealed. On 11 June 2008 the Bolsheukovskiy District Court quashed the conviction and discontinued the case for lack of any evidence to confirm the facts as imputed to the applicant. The appeal court considered that there had been nothing to suggest that the applicant had had an untidy appearance which offended human dignity or public morals; around the same time the applicant had had an appointment at the prosecutor’s office and no complaint had been made concerning his appearance or any state of drunkenness. The appeal decision reads as follows: “The defendant was convicted of being drunk and looking untidy in a public place at 2.45 p.m. on 9 June 2008 ... [The applicant] stated that he had consumed vodka with a friend in the morning of 9 June 2008; had then attended a sauna, had put clean clothes, had had lunch and had then gone to attend a meeting in the district prosecutor’s office; he had not seen any police officer at 2.45 p.m. ... Mr Se. stated before the appeal court that he had had a meeting with [the applicant] at 3 p.m. While he could see that [the applicant] had consumed alcohol, he conducted himself, looked and spoke properly ... Officer S. stated that he had been told on 9 June 2008 of [the applicant] being drunk but he had actually not seen him at 2.45 p.m. and had actually not effected his arrest at that time ... The file contains a medical report compiled at 10.45 p.m. and the arrest record indicating that the defendant had been arrested at 6.05 p.m. There is no other evidence in the file. The trial court relied on S.’s report, the medical report and the arrest record. However, it has now been established that the defendant was examined and arrested much later than at 2.45 p.m. on 9 June 2008 ... S.’s presentation of facts is not truthful and contradicts his earlier report. Shortly after that time the defendant was at the district prosecutor’s office and testified before an investigator [Se.]. His appearance and conduct did not offend human dignity and public morals ... So it has not been established that the defendant committed any offence under Article 20.21 of the CAO ... The proceedings should be discontinued for lack of a corpus delicti ...” 39. The applicant was released on 11 June 2008. 40. The applicant brought civil proceedings, seeking compensation in the amount of RUB 100,000 (equivalent to EUR 2,000) in respect of nonpecuniary damage owing to the conditions of his detention and the unlawful penalty of administrative detention. By a judgment of 5 March 2014, the District Court awarded the applicant RUB 5,000 (EUR 100 according to the Bank of Russia rate on the relevant date) on the basis of the fact that the prosecution had been discontinued. On 4 June 2014 the Omsk Regional Court upheld that judgment. 41. This application was lodged on 24 October 2014 by Viktor Grigoryevich Torlopov, who was born in 1963 and lives in Syktyvkar, Komi Republic. The applicant was represented before the Court by Ms I. Buryukova, a lawyer practising in the Moscow Region. 42. Section 8 of the Public Events Act of 2004 banned public gatherings “in the immediate vicinity of court buildings”. Relying on that provision of the Act, in 2011 the Syktyvkar town administration decided to ban the holding of public events within a radius of 150 metres of any court, to be measured from the entrance to each court building in the town. 43. At 9 a.m. on 12 October 2011, as part of a series of solo demonstrations held in late 2011, the applicant placed himself within a fenced-off area around the building housing the prosecutor’s office. He was holding a poster that read “The prosecutor’s office should return Stefanovskaya Square to demonstrators!”. 44. After ten minutes the police ordered the applicant to stop the demonstration because it was being held in the vicinity of the Town Court building. He was handcuffed and, allegedly, physical force was used against him. He was then taken to the police station and subjected to the measure of administrative arrest. The relevant record reads as follows: “[The applicant] arrived at the police station at ‘11.25’ in connection with offences under: ‘Article 20.2, Article 19.3 of the CAO’ For (among the grounds listed in Article 27 of the CAO): for compiling a record of administrative offence ...” 45. The applicant was released at 8.30 p.m. He was later admitted to hospital. 46. By a judgment of 6 December 2011, a justice of the peace convicted the applicant under Article 20.2 of the CAO and sentenced him to a fine of RUB 500 (equivalent to EUR 12 at the time). On 14 March 2012 the Syktyvkar Town Court upheld the judgment. However, on 23 August 2013 the Supreme Court of the Komi Republic set aside the above judgments and discontinued the case. The court considered that there had been no evidence that the place where the applicant had stood was assigned to the territory of the Town Court under the applicable laws and regulations. 47. The applicant brought civil proceedings for compensation on account of the unlawful deprivation of his liberty on 12 October 2011. By a judgment of 12 February 2014, the Town Court dismissed his claim. On 24 April 2014 the Supreme Court of the Komi Republic upheld that judgment. The court observed as follows: (a) Having regard to Articles 5, 10 and 11 of the Convention and the ruling of the Plenary Supreme Court of Russia dated 27 June 2013 (concerning the application of the Convention by courts of general jurisdiction), the police’s action in taking the applicant to the police station had been proportionate and had pursued a legitimate aim; it had been of short duration, and had not involved any recourse to physical force. (b) The measure of taking the applicant to the police station had been aimed at ensuring prosecution for an administrative offence, including the drawing up of an arrest record. 48. This application was lodged on 30 September 2015 by Kirill Valentinovich Svetlov, who was born in 1990 and lives in Cherepovets in the Vologodsk Region. 49. On 4 September 2015 the applicant’s car was stopped by the police. The applicant was accused of an administrative offence under Article 12.7 of the CAO because he had no valid driving licence. The applicant was taken to the police station where he went through the procedure of being placed under administrative arrest. His mobile telephone was seized. 50. According to the applicant, he was not informed of his procedural rights, including the right to remain silent, when he was pulled up by the police, or at the police station. 51. On 6 September 2015 (a Sunday) the applicant was taken before a justice of the peace. At the hearing, the applicant asked for a lawyer. The judge adjourned the hearing for thirty minutes to allow the applicant to contact a lawyer. According to the applicant, during the break in the hearing, a guard took him to a metal cage where defendants were kept; the applicant had no access to a telephone. According to the Government, the applicant was not kept in a metal cage but in a room measuring some twelve square metres. 52. According to the Government, after the adjournment the applicant waived his right to legal assistance and opted to defend himself. The applicant submitted that he had not made any such statement. 53. The justice of the peace convicted the applicant of the offence and sentenced him to five days of administrative detention, to be counted from 4 September 2015. The justice of the peace stated that the applicant’s guilt was confirmed by, inter alia, the record of administrative offence compiled by the police as well as by the applicant’s guilty plea. The justice of the peace had dismissed as unsubstantiated his argument that as a military officer, he could not be sentenced to administrative detention. 54. The applicant began his sentence the same day. 55. On 8 September 2015 the applicant appealed. In his statement of appeal he mentioned that he had had difficulties with legal assistance since no law firms would be open on a Sunday. He was released on 9 September 2015. 56. On 18 September 2015 the Cherepovets Town Court examined the applicant and upheld the judgment against him. It stated, inter alia, that the justice of the peace had not been provided with any proof that the applicant was a military officer. It is unclear whether the applicant adduced the relevant evidence in the appeal proceedings. 57. The applicant also lodged a constitutional complaint. By decision no. 2732-O of 19 November 2015, the Constitutional Court held that the immediate execution of the sentence of administrative detention had not contravened the Constitution (see “Relevant domestic law and practice”, paragraph 79 below). 58. On 26 November 2015 the Vologda Regional Court dismissed an application by the applicant for review of the court decisions of 6 and 18 September 2015. 59. On 1 April 2016 the Supreme Court of Russia dismissed a further application for review lodged by the applicant.