CASE OF ROZHKOV v. RUSSIA (No. 2)
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1966 and lives in Belgorod. 6. The applicant had a university degree in law; he did not seek admission to the Bar as an advocate (адвокат). He made his living as a registered private entrepreneur providing legal services. He worked for and later managed Vityaz Arbitration Bureau (арбитражное бюро «Витязь»), a private legal entity in the town of Belgorod. In April 2005 the applicant undertook to provide legal services to a private company in relation to administrative-offence proceedings against it. The company issued two originals of an authority form for the applicant. 7. According to the applicant, one original was inserted in the file of a then pending case before a commercial court; the other one was used in submissions before the Chief Fire Protection Inspector. 8. In June 2005 criminal proceedings were instituted against the applicant on suspicion of forgery of the administrative-offence record (“the offence record”) in the above case. According to the authorities, the applicant had added a handwritten note to the record which said, “We want counsel to be present during the compiling of the offence record”, and modified the date on which a copy of the record had been handed over to the defence. 9. Up until 21 June 2005 the official database had Vokzalnaya Street as the applicant’s registered residential address. It appears that before or after that date, the applicant moved from his flat (on Vokzalnaya Street) to reside in his mother’s flat in the same town (on Kostyukova Street). He notified the residence registration office about that change. 10. The investigator dealing with the case issued a summons (sent to the applicant’s address on Vokzalnaya Street) requiring his attendance at her office on 11 July 2005 in order to carry out investigative measures. On 8 July 2005 a police officer reported that he had not delivered the summons since nobody had answered the door at that address. 11. On 13 July 2005 the applicant was informed of the decision to institute criminal proceedings against him. On the same date, Investigator T. interviewed the applicant, who added handwritten comments to the interview record. It was mentioned in the interview record that the applicant was (temporarily) residing in Shagarovka village; the address on Vokzalnaya Street was mentioned as his official residence; the record also contained a note of the telephone number provided by the applicant. 12. Further interviews were scheduled for 15 and 19 July 2005, when the applicant refused the services of a legal-aid lawyer, Y. He also refused to sign an undertaking to appear at subsequent interviews when requested by the investigator. 13. Subsequently, the case was reassigned. On 12 September 2005 a new investigator in charge of the case made telephone calls to the number which had been previously given by the applicant. The applicant abruptly put an end to the conversations. 14. On 13 September 2005 the investigator called again and talked to the applicant’s wife, who refused to assist the authorities in delivering the summons to the applicant. However, she clarified that the applicant was residing at his mother’s flat (on Kostyukova Street). According to the Government, this address was different from the one he had previously given to the investigating authority. 15. On 21 September 2005 the investigator interviewed the applicant’s wife, who stated that the applicant was living on Kostyukova Street and had been residing in Shagarovka during the summer. 16. On 27 September 2005 the investigator issued a decision, under Article 113 of the Code of Criminal Procedure (“the CCrP”) (see paragraph 50 below), ordering that the applicant be brought before her on 3 October 2005 at 10 a.m. It was noted that the applicant resided at his mother’s address and had previously failed to comply with summonses. 17. A similar decision was then issued on 3 October 2005, apparently, because the decision of 27 September 2005 had not been enforced. 18. On 21 October 2005 the chief officer of the investigating authority issued a decision, under Article 210 of the CCrP (see paragraph 52 below), requiring that measures be taken to locate the applicant. The decision read as follows: “On several occasions the suspect was summoned for the purpose of investigative measures ... but failed to appear, without reference to any valid excuse. The measures for establishing his current whereabouts have not produced any positive results. The investigating authority has reason to consider that the suspect is taking action to flee prosecution ...” 19. On 25 January 2006 the police talked to the applicant’s mother, who provided information about the applicant’s office address. At around 10.30 a.m. the police arrived there. The applicant was informed that his name was on the list of wanted persons and that he was to follow the police officer in order to be taken before the investigator with a view to enforcing the decision of 21 October 2005. 20. According to the applicant, despite having requested it, he was not shown any official authorisation for such an order. In reply to his refusal to comply, the officers warned him that they would employ force. Thus, he was compelled to follow them to the police station to be taken before the investigator. The latter explained that she was not in possession of the case file at that time. At the investigator’s request, the applicant gave a written undertaking to appear before her on 6 February 2006. No other investigative measures were taken on 25 January 2006 in relation to the criminal case. The applicant left the Investigations Unit at around 1 p.m. 21. It is unclear whether the interview on 6 February 2006 took place. 22. Subsequently, the applicant brought proceedings under Article 125 of the CCrP complaining of having been deprived of his liberty on 25 January 2006 and also about the decision of 21 October 2005. By a judgment of 21 August 2006, the Sverdlovskiy District Court of Belgorod rejected his claim. It held as follows: “The court dismissed as having no legal basis [the applicant’s] allegation that the circumstances of the case required the drawing up of an arrest record under Article 92 of the CCrP. Such a record ‘may be’ drawn up (that is to say it is not an obligation) if there are grounds cited in Article 91 of the Code ... Article 92 of the Code contains strict rules concerning arrest and detention of a suspect. Following escorting to the competent official, it is necessary to draw up, within three hours, an arrest record. It should indicate the dates and that notification of the procedural rights has been made. [The applicant] was present in the police station and the Department of the Interior offices for two and a half hours to clarify some details relating to the investigation of the criminal case and to take a decision concerning the pending request regarding [the applicant’s] whereabouts. After this he was free to go. Thus, the court does not accept that the applicant was held within the meaning of Article 91 of the Code. Therefore, it was not incumbent on the escorting officer or the investigator to provide counsel, to apprise [the applicant] of his rights or to compile an arrest record. Under Article 5 of the CCrP, arrest is defined as a measure of procedural compulsion used by an enquiring or investigating officer for a period not exceeding forty-eight hours after the actual taking of the person into custody on suspicion of a criminal offence ... [The arresting officer] was a law-enforcement officer and thus the court has no doubts that his actions concerning [the applicant’s] escorting to the police station and then to the Department of the Interior were within the scope of his functional responsibilities.” 23. The applicant appealed, arguing as follows. While agreeing with the court that the situation did not fall within the ambit of “escorting” under Article 113 of the CCrP, he insisted that the court, in substance, had denied the fact of his “deprivation of liberty” and had failed to cite another applicable statutory basis for it. In particular, the Police Act could not supply a valid basis since it only concerned escorting for identification purposes. In the applicant’s view, Article 92 was applicable and thus the non-observance of its requirements (namely, the drawing up of an arrest record and notification of procedural rights) disclosed unlawfulness. The reference to three hours for drawing up the record did not imply that there had not been “deprivation of liberty” if a person was held for less than three hours, or that Article 92 of the CCrP would not apply. 24. On 4 October 2006 the Belgorod Regional Court upheld the judgment in the following terms: “The available material and testimonies do not disclose that the applicant was restricted in his right to liberty and personal security. The court rightly concluded that the investigator had lawfully issued the decision to determine the applicant’s whereabouts. The police had acted on the basis of the investigator’s decision, the enforcement of which required [the applicant’s] escorting to the police. Thus, the police’s actions could not be declared unlawful ... [The applicant] was kept in the police station and before the investigator for less than three hours, which means that he was not ‘arrested’ [or] ‘detained’ within the meaning of Article 92 of the CCrP.” 25. On an unspecified date in February or March 2006, the investigation was suspended. It was resumed on 31 March 2006. The applicant was summoned for an interview with Investigator R. “on 7 March 2006 at 3 p.m”. According to the applicant, he received the summons only on 7 April 2006. It turned out later on that there had been a mistake in the summons: the interview was planned for 7 April 2006. 26. On 14 April, 23 May and 1 June 2006 the investigator issued orders for the applicant to be taken to the investigating authority (Article 113 of the CCrP). According to the Government, the police did not enforce these orders since the applicant was not present at his residential and office addresses. 27. On 28 June 2006 Investigator U. ordered that the applicant be brought before him on 5 July 2006 at 11 a.m. 28. On 1 July 2006 Investigator B. ordered that the applicant be brought before him on 7 August 2006 at 10 a.m. It was indicated that the applicant had previously failed to comply with summonses (on unspecified date(s)), most recently by referring to an illness but failing to submit any related document. 29. On 27 July 2006 the chief investigating officer came to the applicant’s office and interviewed him. The applicant made a written statement concerning the criminal case. It appears that the investigating officer issued summonses for further interviews to be held on 28 and 31 July 2006. 30. According to the applicant, on the same day he gave a written note to the officer indicating that he would not be able to attend on account of his state of health. The applicant did not attend the interview on 28 July 2006. It also appears that the applicant did not attend the interview on 31 July 2006. 31. A further decision to bring the applicant in for interview was issued on 1 November 2006. 32. On 2 November 2006 Investigator B. issued a decision ordering the authorities to determine the applicant’s whereabouts and suspending the investigation. 33. A further decision to bring the applicant in for interview was issued on 7 November 2006. 34. On 30 November 2006 the deputy town prosecutor ordered the resumption of the investigation. 35. On 22 December 2006 the chief investigating officer issued an order indicating that the applicant had failed on several occasions without a valid excuse to attend interviews with the investigator(s). Thus, he ordered that the applicant be brought before him on 25 December 2006 at 3 p.m. 36. On 25 December 2006 the police arrived at the applicant’s office at around 2.45 p.m. and compelled him to follow them to the police station instead of the Investigations Department, which was situated elsewhere. At the police station, the applicant was locked in a room and then provided with a copy of the order of 22 December 2006. The applicant was again informed, in the presence of counsel, of his rights and the decision to carry out a forensic examination. The applicant was interviewed and stated that he had received the summons for an interview scheduled in September or October 2006, but could not come on account of his illness and had informed the investigating authority accordingly; he had not submitted any medical certificate because, according to him, “it [had been] his constitutional right not to do so”. It is unclear whether the applicant left the police station at 5 or 7 p.m. 37. According to the Government (who referred to the police station’s logbook), the applicant was kept in the police station without being locked up between 3 and 4 p.m. and was then taken before the investigator. The Government submit that the applicant was in one of the offices and that the building entrance door was equipped with an electronic lock for security measures. 38. The applicant brought proceedings under Article 125 of the CCrP complaining about his arrest on 25 December 2006. By a judgment of 15 January 2007, the District Court rejected his claim. The court held that the applicant had not been arrested, only compelled to appear before the investigator. The court also indicated that it was not possible to challenge the police actions under Article 125 of the Code. On 21 February 2007 the Regional Court upheld that judgment. 39. On 30 May 2007 the authorities discontinued the criminal proceedings against the applicant due to the expiry of the statutory prosecution period. Apparently, on an unspecified date this decision was quashed. On 1 November 2010 the case against the applicant was discontinued due to the absence of corpus delicti. The applicant was informed that he was entitled to claim compensation from the State (Chapter 18 of the CCrP). 40. It appears that the applicant’s wife was a private entrepreneur and managed the Vityaz Arbitration Bureau. In October 2005 she employed the applicant as a legal consultant. It appears that on an unspecified date he was appointed as the managing director of the firm. 41. According to the applicant, following a strained situation at home vis-à-vis his mother and wife on account of the pending criminal investigation against him, he temporarily moved into his office, using part of it as a dwelling. The office had electricity and heating facilities; it was accessible between 6 a.m. and 10 p.m. Apparently, the applicant did not notify the investigating authority of this change in his personal situation. 42. On 13 October 2006 the investigator in charge of the criminal case against the applicant issued a warrant authorising the search of Vityaz’s offices, referring to Article 182 of the CCrP (see paragraph 57 below). The investigator indicated that a forensic examination of the applicant’s handwriting was necessary. For this, it was necessary to seize handwriting samples of the applicant and the original of the authority form issued to him by the client private company (see paragraph 6 above). In the investigator’s view, these documents could be found at the premises of Vityaz Arbitration Bureau. 43. According to the applicant, on 13 October 2006 several officers, including the investigator, arrived in the office. They allowed the applicant to read the search-and-seizure order. He made no request for a lawyer to be present during the search. The officers then carried out the search in the presence of attesting witnesses and examined the applicant’s medical file and asked him questions about the information contained therein. 44. The applicant sought judicial review of the search-and-seizure order and the manner in which it was implemented. 45. By a judgment of 23 October 2006 the Sverdlovskiy District Court of Belgorod dismissed the claims. The court held as follows: “Under Article 50 of the CCrP a suspect, accused or another person on his or her instructions may retain counsel. When requested, an [officer involved in a preinvestigation inquiry], investigator, prosecutor or a court shall appoint counsel. Before the beginning of the search [the applicant] made no request for counsel while having had access to the search order ... Under [Articles 38 and 182 of the CCrP] it is within the investigator’s purview to decide whether a search is opportune and, if so, to issue the relevant order, except for a search of residential premises. It is also up to the investigator to decide which documents or other evidence are important for the case ... [The applicant’s] allegation that the office ... was his ‘abode’ is unsubstantiated, within the meaning of Article 139 of the CCrP ... Thus there was no legal requirement to obtain a court order for the search.” 46. On 29 November 2006, following an appeal by the applicant, the Belgorod Regional Court upheld the judgment, endorsing its reasoning.