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FIRST SECTION

Application no. 54004/07
by Vladimir IVANOV
against Russia
lodged on 14 October 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Vladimir Viktorovich Ivanov, is a Russian national who was born in 1959 and lives in Gelendzhik.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant, leader of the Gelenzhik Human Rights Centre, and another person decided to hold a picketing in front of the local prosecutor’s office with the aim of showing dissatisfaction with the prosecutors’ service. They informed the Gelenzhik town administration of their intention.

On 6 August 2007 the town mayor sent them a letter indicating that they “should abstain from the picketing” because of reconstructing works in the area. The applicant did not bring any court proceedings challenging the above “letter”.

Instead, on 10 August 2007 the applicant participated in the picketing as planned, at or around 8 or 9 a.m. in front of the prosecutor’s office.

While the police tried to apprehend the applicant, at 9.20 a.m. he entered the building of the prosecutor’s office, ran to an office and broke a chair their. He was told to leave the building but did not obey. It appears that he was arrested soon thereafter and was accused of hooliganism (in relation to the alleged resistance to a lawful order by a public official), which is an administrative offence (Article 20.1 of the Code of Administrative Offences, CAO).

The applicant was also accused of violating the regulations on public gatherings, which is also an administrative offence punishable under Article 20.2 of the CAO.

At an unspecified hour, on the same day the applicant was brought before a justice of peace, in order to be tried in relation to the above administrative offence charges.

The applicant did not deny that, having been apprehended by the police, he had escaped and had rushed into the building of the prosecutor’s office.

The judge convicted the applicant of the above administrative offences and sentenced him to fifteen days of administrative detention (under Article 20.1 of the CAO) and a fine of 1,000 Russian roubles (under Article 20.2 of the CAO). The court made no findings concerning the lawfulness of the applicant’s convoying/arrest earlier on the same day.

The applicant appealed. On 17 August 2007 the Gelenzhik Town Court of the Krasnodar Region upheld the judgment.

B.  Relevant domestic law and practice

1.  Administrative arrest and administrative “convoying”

A police officer may convoy an individual to the police station by force for the purpose of drawing up a report on the administrative offence provided that it is impossible to do it at the place where that offence has been detected. The individual must be released as soon as possible. The police officer must draw up an “convoying report” or make a mention about the convoying in the report on the administrative offence. The individual concerned must be given a copy of that report (Article 27.2 §§ 1 (1), 2 and 3 of the Code of Administrative Offences, CAO).

In exceptional cases a police officer may arrest an individual for a short period if it is necessary to ensure a correct and prompt examination of the administrative case and secure enforcement of the eventual penalty (Article 27.3 § 1 of the Code). The duration of such administrative arrest must not normally exceed three hours. An administrative arrest for a longer period not exceeding forty-eight hours is only permissible for persons subject to administrative proceedings concerning an offence punishable by administrative detention or offences involving unlawful crossing of the Russian border (Article 25.5 § 1 of the Code). The arresting officer must draw up “an administrative arrest report” (Article 27.4 of the Code).

2.  Compensation for unlawful deprivation of liberty

The State or regional treasury is liable – irrespective of any fault by State officials – for the damage sustained by an individual on account of unlawful criminal prosecution, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence, or an unlawful administrative penalty in the form of detention or community work (Article 1070 § 1 of the Civil Code). Damage incurred by an individual through unlawful acts of the police, investigation or prosecution authorities in a form other than listed above is compensated for in accordance with the general grounds giving rise to liability for damage, that is on the condition that the fault of the person who inflicted the damage has been proven (Article 1069 read in conjunction with Article 1064).

A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151). Non-pecuniary damage must be compensated for irrespective of the tortfeasor’s fault in the event of unlawful conviction or prosecution, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence, or an unlawful administrative penalty in the form of detention or community service (Article 1100 § 2).

On 4 December 2003 the Constitutional Court examined an application by Ms Alikina who submitted, in particular, that Article 1070 § 1 of the Civil Code, in so far as it did not provide for the State’s strict liability for non-pecuniary damage incurred through unlawful arrest of a criminal suspect, was incompatible with the Constitution and Article 5 § 5 of the Convention. The Constitutional Court found that the list of grounds contained in Article 1070 § 1 was not exhaustive and that the State’s strict liability rule applied to all types of unlawful arrest and detention, even those that were not listed in the text of that Article.

That position was confirmed by the Constitutional Court in its Ruling No. 9-P of 16 June 2009. The Constitutional Court stated specifically that the State was liable for the non-pecuniary damage incurred through unlawful administrative arrest irrespective of the fault of the officials involved.

COMPLAINTS

The applicant complains under Article 5 of the Convention about his arrest and administrative detention under the court decision of 10 August 2007.

The applicant also complains under Article 6 of the Convention that he had no legal assistance, his motions were dismissed by the justice of peace and testimonies by witnesses were not taken into consideration.

Lastly, the applicant alleges that the administrative proceedings against him constituted violations of Articles 10 and 13 of the Convention.

QUESTIONS TO THE PARTIES

1.  Concerning the period of time before the judgment of 10 August 2007, was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the deprivation of liberty applied to him for any of the purposes set out in paragraphs (a)-(e) of Article 5 § 1? Was it lawful and in accordance with a procedure prescribed by law?

Having regard to Article 38 of the Convention, the respondent Government are invited to submit a copy of the administrative offence file against the applicant.

2.  Were there violations of Article 10 and/or Article 11 of the Convention in the present case?

3.  Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 10 and 11, as required by Article 13 of the Convention? In particular:

-  Were the courts dealing with the administrative offence case empowered to deal with the substance of the complaint concerning the alleged interference with the applicant’s right of assembly or freedom of expression; to assess the lawfulness of the public event or its dispersal? Did the courts in these proceedings carry out a proportionality analysis as regards such interference? Were they able to provide adequate redress?

-  Were the Russian authorities obliged by any legally binding time-frame to give their final decision before the planned date of the public event? Would judicial review of the letter of 6 August 2007 satisfy the above requirements, taken separately or cumulatively with the administrative offence proceedings? Did the applicant have the possibility of obtaining a (final) court decision concerning the public event before the time at which it was intended to take place (see Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, § 98, 21 October 2010)?