MEDVEDEV v. RUSSIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
The applicant, Mr Aleksandr Vyacheslavovich Medvedev, is a Russian national who was born in 1978 and lives in Moscow. He is represented before the Court by Mr A. Yablokov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 March 2002 the police department of the Tekstilshchiki District of Moscow started an investigation of a residential burglary committed in the district earlier (criminal case no. 127215). On 19 March 2002 the police investigator questioned an eyewitness to that burglary, who identified the applicant as one of the perpetrators. The investigator questioned the applicant, who denied involvement in that crime. The Government submitted a copy of the record of interview, signed by the applicant. On several occasions the applicant was questioned by an investigator in charge of criminal case no. 127215. However, no charges were brought against him. In July 2002 the investigation into the burglary was stayed. According to the applicant, on 10 April 2002, at about 10 a.m., his car was stopped on the road. Police officers in plain clothes pulled the applicant out of his car and took him to the nearby police station. The applicant submitted that he had been arrested in connection with the burglary, and that the policemen had been trying to extort a confession from him. At 5:10 p.m. a report of an “administrative offence” was drawn up by the police officers. The report stated that the applicant had been detained near the Tekstilschiki metro station for using obscene language in a public place. The police confiscated his belongings, without making a record of what they had done, and locked the applicant in a cell. On 11 April 2002, at about 5 p.m., the applicant was brought before a judge of the Lyublinskiy District Court of Moscow. The applicant claimed that he had not been given access to the case file, the judge had not allowed him to present his arguments and that, despite his requests, he had not been allowed to have a lawyer. The judge sentenced the applicant to seven days' “administrative detention” (a sanction for public disturbance, provided by the Code on Administrative Penalties – see “Relevant domestic law” below). The court decision referred to the police report and statements of one of the policemen who had allegedly arrested the applicant near the metro station. The text of the decision indicated that it was not subject to any appeal and that the applicant had refused to sign it. The applicant claimed that he had never been served with a copy of the decision, or even seen it. He had never refused to sign the second page of the court's judgment, since he had not seen it. He was informed about the sentence by the policemen escorting him. On the same day the applicant took part in an identification parade within case no. 127215. On 12 April 2002 the applicant's relatives contacted his lawyer, who went immediately to the police station where the applicant was being detained. However, the lawyer was denied access to the applicant for the reason that the applicant was at that time being questioned by the police in connection with the burglary. On 14 April 2002 the lawyer visited the applicant in the detention facility of the police station. On 15 April 2002 the applicant's lawyer requested the Lyublinskiy District Court to give him access to the materials of the administrative case. It appears that the registry personnel and the judge searched in the archives of the court, but the case file was not found. On 17 April 2002 the applicant complained to the prosecutor's office about his “administrative detention”. It appears from his complaint that he was shown a copy of the court's decision of 11 April 2002 but did not get access to the materials of the administrative case. He repeated his complaint on 29 April 2002. On 17 April 2002 the applicant was released after serving his sentence. He found his car with a broken window; its audio system had been stolen. The Government insisted that the applicant had been arrested at 5 p.m. near the Tekstilschiki metro station for public disturbance, and that the police records were accurate. They produced a copy of the record of the arrest, which indicated that the applicant had been arrested at 5 p.m. on 10 April 2002 for “hooliganism”. They further produced a copy of a “record of administrative arrest” of 10 April 2002 which indicated that the applicant had been arrested under Article 158 of the Code of Administrative Offences. That document did not contain any information as to the particular circumstances of the offence: most of the sections of the record of the arrest had been left blank. They further produced a copy of a “description of administrative offence” of the same date, which indicated that the applicant had been arrested for using obscene language in a public place and for ignoring police orders. Both documents had been signed by the applicant. They further claimed that after the hearing of 11 April 2002 the applicant had refused to sign a copy of the court decision: a note stating this had been made by the judge on the court's ruling. However, the applicant had signed the first page of the decision after the mention “[I] has been informed about [my] rights and obligations under Article 247 of the Code of Administrative Offences”. They produced a copy of the decision of 11 April 2002. The relevant part of the reasoning of the decision reads as follows: The decision contained, inter alia, a typewritten entry which indicated that the decision indicated that it was not subject to any appeal. On 21 April 2002 the applicant's lawyer drafted an appeal against the decision of 11 April 2002. He indicated, inter alia, that he had not received access to the case file or even a copy of the decision. It follows from the following correspondence and the postal receipt produced by the applicant that the appeal was sent by registered mail on 22 April 2002. On 30 April 2002 the appeal reached the Lyublinskiy District Court, which was supposed to send it on to the Moscow City Court together with the case file. However, on 7 May 2002 the Lyublinskiy District Court returned the appeal to the applicant's lawyer. In the cover letter the judge noted that the appeal had arrived at the District Court outside the time-limit established by law, and thus would not be forwarded to the Moscow City Court. The letter was sent to the address of the bar association to which the applicant's lawyer belonged. The applicant claims that his lawyer has never received this letter. According to the letter from the bar association, they have not received any letters from the Lyublinskiy District Court addressed to the applicant's lawyer. On 15 May 2002 the Moscow City Prosecutor's Office sent the applicant a letter in reply to his complaint of 15 April 2002. It can be seen from that letter that the prosecutor's office requested the materials of the administrative proceedings from the Lyublinskiy District Court. However, the request remained unanswered. Therefore, the prosecutor's office was unable to review the lawfulness of the detention order of 11 April 2002. On 11 July 2002 the applicant requested the Moscow City Court to restore the time-limit for lodging an appeal. He referred to the fact that, despite his request of 15 April 2002, he still did not have access to the materials of the case file and did not have a copy of the decision of 11 April 2002. It is unclear what decision was taken in reply to this request. It can be seen from the letter of the Vice-President of the Moscow City Court of 31 May 2004 addressed to the applicant that the appeal submitted by his lawyer and dated 11 July 2002 has been left unexamined since “by its form and content it did not comply with the requirements for appeals against the court decisions in the administrative cases”. The case file with the applicant's request was returned to the Lyublino District Court. On 20 February 2004 an inquiry into the applicant's arrest and detention was initiated. The investigator questioned the applicant and the policemen who took part in his arrest on 10 April 2002. The policemen confirmed that they had arrested the applicant for use of obscene language in a public place. The investigator concluded that the applicant's allegations concerning the circumstances of his arrest were unsubstantiated. On 1 March 2004 the investigation was discontinued. On 20 February 2004 the Vice-President of the Moscow City Court informed the Supreme Court that the Moscow City Court had never received any appeal from the applicant or his lawyer against the decision of 11 April 2002. On 21 April 2004 the Deputy Prosecutor of Moscow lodged an extraordinary appeal against the decision of 11 April 2002. On 17 July 2004 the Vice-President of the Moscow City Court examined the case by way of supervisory review. The Vice-President noted that the District Court had based its conclusions solely on the statements of the police officers, without referring to other possible witnesses to the incident. Officer K. was not a witness to the offence attributed to the applicant. Further, the court did not refer to any concrete information on the applicant' The Code of Administrative Offences (the Code) of 1984 (Кодекс об административных правонарушениях РСФСР), as in force at the relevant time (until 1 July 2002), established the penalties for petty offences and the procedure for imposing the penalties. Pursuant to Article 158 of this Code, disturbance of public order (which included use of offensive language in public) was punishable with administrative detention up to fifteen days, to be ordered by a district court judge. Under Article 242 § 3 of the Code when the police arrest a person for the disturbance of public order, that person may be detained until the moment of examination of his administrative case by the court. Article 267 of the Code (as amended in March 2001 and 18 December 2001) provided that a court decision concerning an administrative offence could be appealed against to a higher court. Under Article 268 an appeal could be lodged within ten days from the delivery of the decision. The time-limit for appeal, if it was not met, could be restored by the competent court upon an application by the appellant. The Civil Code of the Russian Federation provides as follows: Article 1070: Responsibility for damage caused by unlawful acts of investigative authorities, prosecuting authorities and courts “1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful administrative detention ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies...” The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeasor (that is, the State agency which decided to prosecute, detain and so on). However, the notions of “unlawful” prosecution or detention (see Article 1070) are not developed in the relevant provisions of the Civil Code. Certain guidelines on this subject may be obtained from Decree No. 4892-X of the Supreme Council of the USSR of 18 May 1981, which concerns compensation for damage caused by unlawful acts by law-enforcement agencies. For example, point 2 of that Decree provides that an acquitted person has the right to obtain damages from the State; the only exception concerns cases when the person was charged after making a false confession. Furthermore, in the case of Paskhalov (published in the Bulletin of the Supreme Court, 1993 г., N 1, page 5), the Supreme Court of the Russian Federation used the following wording: “... unlawful attribution of criminal liability, namely when an acquittal judgment was given...”. These words, as well as the subsequent judicial practice suggest that the domestic courts regard criminal proceedings which ended with an acquittal to be “unlawful” as such. Therefore, if there was an acquittal, remand in custody would be “unlawful” even if all the substantive and procedural rules were complied with when it had been imposed.