European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF YAKOVLEV v. RUSSIA

 

(Application no. 44240/12 and 2 others – see list appended)

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

17 December 2019

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Yakovlev v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Alena Poláčková, President,
          Dmitry Dedov,
          Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 26 November 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in three applications (nos. 44240/12, 52783/13 and 76021/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Fedor Vladimirovich Yakovlev (“the applicant”), on 15 May 2012, 1 July 2013, 14 October 2014, 14 April and 17 September 2015.

2.  The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3.  On 23 November 2017 the Government were given notice of the complaints concerning the conditions of the applicant’s detention, the alleged unlawfulness of his detention, the alleged unfairness of the administrative proceedings against him, the alleged violation of the double jeopardy principle, and mandatory fingerprinting, and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1957 and lives in Sochi.

A.  Administrative proceedings concerning the storage of a dismantled vehicle

5.  On 19 October 2011 the District Administrative Commission found the applicant in violation of the regional administrative legislation for storing a dismantled vehicle in a public area and ordered him to pay a fine in the amount of 3,000 Russian roubles (RUB).

6.  On 23 April and 22 May 2012 the Lazarevskiy District Court of Sochi and the Krasnodar Regional Court respectively upheld the Commission’s decision of 19 October 2011.

7.  On 15 January 2015 the applicant lodged an application for review of the judgments in his case with the Supreme Court of the Russian Federation. On 1 April 2015 the Supreme Court returned the application to the applicant, advising him to lodge an application for review with the Regional Court.

B.  Administrative and criminal proceedings in connection with the incident of 23 October 2011

1.  Arrest and ensuing proceedings

8.  On 28 October 2011 O. complained to the police, alleging that on 23 October 2011 the applicant, while drunk, had used foul language in public and had ignored a request to stop his antisocial behaviour.

9.  On 2 and 14 November 2011 the police summoned the applicant to the police station.

10.  On 25 November 2011 the applicant came to the police station. He was informed of O.’s complaint against him. The applicant challenged the veracity of O.’s allegations. Police officer Siz. informed the applicant that they would draw up an administrative offence record and advised the applicant of his rights.

11.  On the same date the justice of the peace of judicial circuit no. 93 of the Lazarevskiy District of Sochi found the applicant guilty of disorderly conduct (Article 20.1 of the Code of Administrative Offences) and sentenced him to ten days’ administrative detention. The justice relied on the administrative record prepared by the police and written statements made by O. and Zh. describing the events of 23 October 2011.

12.  On an unspecified date the applicant lodged an appeal against the judgment of 25 November 2011.

13.  On 1 December 2011 the District Court scheduled the appeal hearing for the same date. The applicant chose not to attend the hearing and informed the court that it could proceed with the hearing of his case in his absence. The court appointed M. Siz. to represent the applicant as counsel in the appeal proceedings.

14.  On the same date the District Court reviewed the material in the case file and upheld the judgment of 25 November 2011 on appeal.

2.  Conditions of detention from 25 to 30 November 2011

15.  From 25 to 30 November 2011 the applicant was detained at the police station. According to the Government, the applicant did not have ID with him and could not be transferred to a detention centre to serve his sentence.

16.  According to the applicant, he was detained in a metal cage which was not equipped with a bed or a toilet. Nor was he provided with a mattress or a blanket. There were no amenities in the cell and the applicant was unable to brush his teeth or wash his hands. The temperature in the cell was approximately 5^o to 6^oC. The cell measured 10 sq. m and housed twelve inmates. It was dirty and infested with mosquitoes and bedbugs.

C.  Administrative proceedings on charges of disorderly conduct concerning the incident of 12 January 2013

1.  The applicant’s altercation with the police

17.  According to the applicant, on 12 January 2013 he called the police to enquire as to the progress of the investigation in response to his previous complaints. Some time later, someone rang his doorbell. When he opened the door, he saw a group of police officers. They demanded that the applicant withdraw his complaints. They threatened to beat him and arrest him. Then they grabbed him and pulled him out of the flat into the street. The applicant was wearing only his underwear. The policemen put him into a police car. He hit his head against the window pane. The pane fell out and the applicant lost consciousness. The policemen kicked him and hit him with clubs. At the police station the officer on duty refused to register the applicant and told the others to take him to hospital. In town hospital no. 1 the policemen continued the beatings. They told the medical practitioner that they had arrested the applicant, who had been wearing only his underwear and had been throwing stones at passers-by and threatening them, and that he was suffering from a mental disorder.

18.  According to the Government, on 12 January 2013 the police arrested the applicant, who was in an inebriated state and was using foul language and disrupting the peace. The policemen had to use force against the applicant to take him to the police car. In the car, the applicant broke the rear windows trying to escape. Police officer M. opened the rear door of the car and the applicant hit him in the chest. M. fell down and hit his head and back against the asphalt. The applicant tried to escape but was stopped by the police officers, who handcuffed him and took him to the police station. At the police station the officers drew up an administrative offence record.

2.  Ensuing administrative proceedings

19.  On 12 January 2013 the police drew up an administrative offence record, according to which the applicant had committed the administrative offence of disorderly conduct. The record indicated that the applicant, while in an inebriated state, had disturbed the peace, used foul language and refused to comply with the legitimate order of a police officer.

20.  On 15 January 2013 the District Court found the applicant guilty of disorderly conduct and sentenced him to two days’ administrative detention. The court appointed Gus. to represent the applicant as counsel. It heard the applicant and reviewed the written material in the case file. The court relied on the written statements of the eyewitnesses Ryab., Pob. and Uv., who had witnessed the applicant’s altercation with the police, and those made by police officers Mir., Gv. and Tl. A request by the applicant to confront the witnesses in court was dismissed.

21.  The applicant appealed, maintaining his innocence. He contested the factual circumstances of the case and alleged a violation of his right to confront the witnesses testifying against him.

22.  On 5 February 2013 the Regional Court upheld the judgment of 15 January 2013 on appeal. The parties did not attend the hearing and the judge considered it possible to proceed with the examination of the case in their absence.

3.  Criminal proceedings

23.  On an unspecified date the applicant was charged with having assaulted police officer Mir. G. represented him as counsel in the course of the criminal proceedings.

24.  On 28 August 2013 the District Court found the applicant guilty of assault on a law-enforcement officer and sentenced him to seven months’ imprisonment. The court established that the applicant had assaulted police officer Mir., who had been trying to put an end to the applicant’s disorderly conduct.

25.  On 25 December 2013 the Regional Court upheld the applicant’s conviction on appeal.

4.  The applicant’s allegations of ill-treatment

26.  On 17 January 2013 the applicant complained to the district investigative committee that on 12 January 2013 he had been beaten up and ill-treated by the police officers.

27.  On 27 January 2013 the deputy head of the district investigative committee refused to institute a criminal investigation into the applicant’s allegations of ill-treatment by the police. The applicant did not appeal.

D.  Administrative proceedings on charges of disorderly conduct concerning the incident of 22 January 2014

28.  On 22 January 2014 the police arrested the applicant in the prosecutor’s office. According to the police record, the applicant was in an inebriated state and was bothering the employees and refusing to leave the prosecutor’s office.

29.  On 23 January 2014 the justice of the peace of judicial circuit no. 95 of the Lazarevskiy District of Sochi found the applicant guilty of disorderly conduct and sentenced him to fifteen days’ administrative detention.

30.  On 27 February 2014 the District Court upheld the judgment of 23 January 2014 on appeal.

31.  On 17 April 2014 the Deputy President of the Regional Court reviewed the judgment of 23 January 2014 and upheld it.

E.  Administrative proceedings on charges of disorderly conduct concerning the incident of 19 January 2015

1.  The applicant’s arrest and ensuing proceedings

32.  On 19 January 2015 the police arrested the applicant on charges of disorderly conduct. According to an employee of the District Court, the applicant, while in the courthouse, refused to confirm the receipt of summonses and used foul language when addressing the employees of the court. The police officers escorted the applicant to the police station for the purposes of preparing an administrative record and registered him at the police station at 7.30 p.m. At 9.30 p.m. the police decided to extend the applicant’s detention “in order to prepare administrative materials”.

33.  On 20 January 2015 the District Court found the applicant guilty as charged and sentenced him to fifteen days’ administrative detention. The court heard the applicant and his lawyer and reviewed the material in the case file, including the administrative arrest record prepared by the police and the written statements made by Ab., Mat. and Yak., who had witnessed the incident of 19 January 2015. The applicant appealed.

34.  On 28 January 2015 the Regional Court scheduled the appeal hearing for 3 February 2015 and sent a summons to the applicant.

35.  On 3 February 2015 the Regional Court held an appeal hearing in the applicant’s absence and upheld the judgment of 20 January 2015 on appeal.

2.  Conditions of detention from 19 to 20 January 2015

36.  According to the applicant, from 19 to 20 January 2015 he was detained at the police station in a metal cage. He did not receive any food or water. The cell was dirty and infested with insects. The applicant was allowed to use the toilet no more than three times a day. The officer on duty advised him to use a plastic bottle should he have further needs.

37.  According to the Government, the applicant was detained alone in a cell at the police station. The cell measured 10 sq. m and was equipped with wooden benches. The pillows and blankets were distributed upon the inmates’ request. The cell was cleaned once a day. The toilet was located on the floor below. The officer on duty escorted the inmates to the toilet in response to their needs. The applicant was provided with meals in accordance with the applicable legislation.

THE LAW

I.  JOINDER OF THE APPLICATIONS

38.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.  ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION

39.  The applicant complained that he had been detained in inhuman and degrading conditions at the police station from 25 to 30 November 2011 and from 19 to 20 January 2015 and that he did not have an effective remedy in that respect, in breach of Articles 3 and 13 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

40.  As regards the applicant’s detention from 29 to 30 November 2011, the Government stated that the relevant documents had been destroyed long before they had been given notice of the complaint. They further referred to the findings of the investigation conducted in response to the applicant’s allegations of ill-treatment in custody from 2 July 2012 onwards, in which the investigator had indicated that from 29 to 30 November 2011 the applicant had been provided with meals and had used the toilet in accordance with his needs. Lastly, the Government submitted that the conditions of the applicant’s detention from 19 to 20 January 2015 had been in compliance with the standards set out in Article 3 of the Convention.

41.  The applicant maintained his complaint.

A.  Admissibility

42.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Article 3

43.  The Court reiterates that it has already examined the conditions of detention obtaining in police stations in various Russian regions and found them to be in breach of Article 3 (see, among numerous other authorities, Nemtsov v. Russia, no. 1774/11, §§ 117-21, 31 July 2014; Kuptsov and Kuptsova v. Russia, no. 6110/03, §§ 69 et seq., 3 March 2011; Nedayborshch v. Russia, no. 42255/04, § 32, 1 July 2010; Khristoforov v. Russia, no. 11336/06, §§ 23 et seq., 29 April 2010; Shchebet v. Russia, no. 16074/07, §§ 86-96, 12 June 2008; Fedotov v. Russia, no. 5140/02, § 67, 25 October 2005; Ergashev v. Russia, no. 12106/09, §§ 128-34, 20 December 2011; and Salikhov v. Russia, no. 23880/05, §§ 89-93, 3 May 2012). It found a violation of Article 3 in a case where an applicant had been kept for twenty‑two hours in an administrative‑detention police cell without food or drink or unrestricted access to a toilet (see Fedotov, cited above, § 68). In a different case, it noted that a similar cell designed for short-term administrative detention not exceeding three hours was not suitable for four days’ detention because it lacked the amenities indispensable for prolonged detention. The cell did not have a toilet or a sink. It was solely equipped with a bench, there being no chair or table or any other furniture, and the applicant’s food was brought by relatives (see Ergashev, cited above, § 131).

44.  In the present case the Court finds the same deficiencies. From 25 to 30 November 2011 and from 19 to 20 January 2015 the applicant was detained in an administrative-detention police cell designed for short-term administrative detention not exceeding three hours. The cell was equipped only with benches and lacked the amenities indispensable for prolonged detention. The Court considers that such conditions diminished the applicant’s dignity and caused him distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. The detention in such conditions amounted to inhuman and degrading treatment.

2.  Article 13

45.  The Court observes that in a number of previous cases it has found a violation of Article 13 of the Convention on account of the lack of effective remedies in respect of complaints concerning conditions of detention at police stations in Russia (see, for example, Nemtsov, cited above, §§ 112‑16, and Navalnyy and Yashin v. Russia, no. 76204/11, §§ 105-09). It further notes that in the case under consideration the Government did not refer to any legal avenue the applicant might have used to have the alleged violation or its continuation prevented and/or to obtain adequate and sufficient redress for his grievances under Article 3 of the Convention.

46.  Regard being had to the above, the Court finds no reason to hold otherwise in the present case. It concludes that the applicant did not have at his disposal an effective remedy for his complaint about the poor conditions of his detention, in breach of Article 13 of the Convention.

3.  Conclusion

47.  There has therefore been a violation of Articles 3 and 13 of the Convention on account of the conditions of the applicant’s detention from 25 to 30 November 2011 and from 19 to 20 January 2015 and the lack of an effective remedy in that respect.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ALLEGED ILL-TREATMENT

48.  The applicant alleged that on 12 January 2013 the police officers had beaten him, in breach of Article 3 of the Convention.

49.  The Government submitted that the applicant had failed to exhaust the effective domestic remedies in respect of his complaint. In particular, he had not appealed against the decision of 27 January 2013.

50.  The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance, and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996‑VI, and Akdıvar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996‑IV).

51.  Turning to the circumstances of the present case, the Court observes that the applicant’s allegations of ill-treatment were considered by the deputy head of the district investigative committee, who did not find a prima facie case of ill-treatment and dismissed the applicant’s complaint on 27 January 2013. The applicant chose not to appeal against that decision and thus did not use a remedy which, as previously established by the Court, would have been a normal avenue to pursue for exhaustion purposes in respect of an Article 3 complaint (see, for example, Belevitskiy v. Russia, no. 72967/01, § 61, 1 March 2007). The Court therefore finds that the applicant’s complaint of police brutality must be rejected for non‑exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention.

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

52.  The applicant complained further that his detention from 19 to 20 January 2015 had been in breach of Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so[.]”

53.  The Government submitted that the applicant’s arrest and detention at the police station pending administrative proceedings on charges of disorderly conduct had been lawful as required by Article 5 of the Convention. In order to put a stop to the applicant’s unruly behaviour and to ensure the proper conduct of the administrative proceedings, the police had arrested him and escorted him to the police station, where he had been detained pending the administrative hearing of his case. The police officers had duly recorded the applicant’s arrest and detention. According to the Government, the police officers had acted in strict compliance with Articles 27.1–27.5 of the Code of Administrative Offences. Lastly, the Government argued that the applicant had not brought his grievances concerning the alleged unlawfulness of his arrest and detention to the attention of the domestic authorities and that his complaint should be dismissed on account of his failure to do so.

54.  The applicant maintained his complaint.

A.  Admissibility

55.  As regards the Government’s argument that the applicant had not lodged a complaint challenging the lawfulness of his detention, the Court notes that, apart from that general statement, they did not refer to any provision of national legislation setting forth the procedure and the rules for lodging such a complaint. It reiterates in this connection that where the Government raise a non-exhaustion objection, it is for them to prove that there exist available remedies which have not been utilised by those concerned. The Court would be straying outside its given role were it to identify on its own the remedies the Government had in mind (compare Deweer v. Belgium, 27 February 1980, § 26, Series A no. 35).

56.  The Court further notes that it found in a previous case against Russia concerning the alleged unlawfulness of administrative arrest and detention that, in view of the short duration of the deprivation of liberty complained of, it had not been practical for the applicants to institute separate proceedings by which their administrative arrest and detention could be reviewed by a court (compare Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, § 102, 10 April 2018).

57.  Regard being had to the above, the Court considers that in the present case the applicant, whose detention pending the hearing of his administrative case did not exceed twenty-four hours, was not required to lodge a separate complaint challenging the lawfulness of his arrest and detention and that he complied with the requirements set out in Article 35 § 1 of the Convention. The Government’s objection is therefore dismissed.

58.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

59.  The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion. Furthermore, the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his liberty (see Benham v. the United Kingdom, 10 June 1996, §§ 40 and 42, Reports 1996‑III).

60.  The Government did not dispute that at least from 7.30 p.m. on 19 January 2015 until the end of the administrative hearing held on 20 January 2015 the applicant had been deprived of his liberty within the meaning of Article 5 § 1 of the Convention. It appears that his arrest and detention had the purpose of bringing him before the competent legal authority on suspicion of having committed an administrative offence and thus fell within the ambit of Article 5 § 1 (c) of the Convention.

61.  According to the administrative record prepared by the police, the applicant was taken to the police station in order for the police to draw up an administrative offence report as provided for by the Code of Administrative Offences (see paragraph 32 above). Even assuming that, in the circumstances, it was strictly necessary to take the applicant to the police station for the purpose indicated, the Court observes that, once the record was prepared, the purpose of the applicant’s arrest was fulfilled. However, instead of being released at 9.30 p.m. on 19 January 2015, the applicant was kept in detention at the police station because the police had “to prepare administrative materials” (ibid.). Neither the domestic authorities nor the Government have provided any clarification as to what the wording used in the police record actually stood for. While the Article 27.3 of the Code of Administrative Offences authorises administrative detention, as an extraordinary measure, in order to ensure the correct and timely examination of an administrative case, neither the domestic authorities nor the Government have provided any explanation as to why (1) it was strictly necessary to deprive the applicant of his liberty and (2) no other less stringent measure could have been employed. In such circumstances, the Court considers that the applicant’s detention at the police station from 19 to 20 January 2015 was unjustified and arbitrary.

62.  Accordingly, there has been a violation of Article 5 § 1 of the Convention.

V.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

63.  The applicant complained that the administrative proceedings against him had been unfair. In particular, he alleged (1) that he had been neither present nor represented at the appeal hearings of 1 December 2011 and 3 February 2015; (2) that he had been unable to confront the witnesses testifying against him in the administrative proceedings which had ended on 3 February 2013 and that he had not been notified of the date and time of the appeal hearing of 3 February 2013; and (3) that the court had refused to obtain the attendance of several witnesses and to examine the video recordings in the administrative proceedings which had ended on 17 April 2014 and that he had not been notified of the appeal hearing of 17 April 2014. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him[.]”

A.  Scope and admissibility of the complaints

1.  Appeal hearing of 1 December 2011

64.  As regards the appeal hearing held on 1 December 2011, the Government submitted that the applicant had chosen not to attend the proceedings. Having examined the material submitted, the appellate court had considered it possible to examine the matter in the applicant’s absence and had appointed Siz. to represent him as counsel.

65.  The applicant claimed that the head of the police station, where at the time he had been detained, had threatened him and coerced him into waiving his right to participate in the appeal hearing and that he had not consented to the appointment of Siz. to represent him as counsel in the appeal proceedings.

66.  Having examined the parties’ submissions, the Court accepts that the applicant waived his right to take part in the appeal proceedings and that his waiver was attended by adequate procedural safeguards (see Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006‑XII). The applicant expressly informed the appellate court that he had chosen not to attend the appeal hearing. The appellate court reviewed the applicant’s situation and appointed Siz. to represent him as counsel. The Court discerns nothing in the material submitted to support the applicant’s allegations of coercion and dismisses them as unsubstantiated. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

2.  Administrative proceedings concerning the incident of 12 January 2013

67.  The Government submitted that the administrative proceedings concerning the incident of 12 January 2013 had been fair. The applicant had attended the hearing in the District Court. He had been represented by State‑appointed counsel. The District Court had examined the material in the case file, including the statements made by the witnesses R. and P. and the reports prepared by police officers Mir., Gv., Mir. and Tl. The applicant had been duly informed of the appeal hearing and had chosen not to attend it. The Regional Court had heard the case in his absence.

68.  The applicant maintained his complaint. He submitted that he had been deprived of the opportunity to confront the witnesses against him and that he had not been notified of the date and time of the appeal hearing.

69.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

3.  Administrative proceedings concerning the incident of 22 January 2014.

70.  The Government argued that this complaint should be dismissed on account of the applicant’s failure to comply with the six-month rule. The final decision on the matter had been taken by the District Court on 27 February 2014, whereas the applicant had lodged the complaint on 14 October 2014.

71.  The applicant argued that the final decision on the matter had been taken on 17 April 2014 by the Deputy President of the Regional Court in refusing to review the judgments rendered in the applicant’s case and that the six-month rule had therefore been complied with in respect of this complaint.

72.  The Court reiterates that the review procedure referred to by the applicant is not subject to any ascertainable time-limit and thus cannot be regarded as a remedy for the purpose of Article 35 § 1 of the Convention (see Smadikov v. Russia (dec.), no. 10810/15, 18 February 2015). It accepts the Government’s argument and finds that this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

4.  Appeal hearing of 3 February 2015

73.  The Government discerned no violation of the applicant’s rights. Having been duly informed of the appeal hearing of 3 February 2015 and of the consequences of his failure to attend the hearing, the applicant had chosen not to take part in the proceedings and the court had heard the matter in his absence.

74.  The applicant did not make any submissions on this point.

75.  The Court notes that when notice of this part of the application was given to the parties, they were invited to answer a specific question raised by the Court as regards the appeal hearing of 3 February 2015. The applicant made no submissions or pleas in relation to that issue.

76.  In such circumstances, the Court considers that the applicant no longer wishes to pursue this part of the application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the applicant’s complaints under Articles 3 and 13 of the Convention.

77.  In view of the above, it is appropriate to strike this part of the application out of the list.

B.  Merits

1.  General principles

78.  The general principles concerning the right of an accused to confront adverse witnesses, to obtain the attendance and examination of witnesses on his or her behalf and to attend a hearing are well established in the Court’s case-law and have been summarised in the judgments of Schatschaschwili, Murtazaliyeva, and Hermi (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-31, ECHR 2015; Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 150-59, 18 December 2018; and Hermi, cited above, §§ 58-62, 64 and 76, ECHR 2006‑XII).

2.  Application of those principles in the present case

79.  In deciding whether the administrative proceedings against the applicant concerning the incident of 12 January 2013 were fair, the Court will examine them as a whole (see Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247‑B).

(a)  Admission of the witnesses’ statements by the justice of the peace

80.  The Court observes that, when finding the applicant liable for an administrative offence, the justice of the peace relied on the documents prepared and collected by the police, including written statements made by the witnesses Pob., Ryab., Mir., Gv. and Tl. To verify the police’s version of the events, she did no more than refer to those written statements without providing any reason for the decision not to summon the witnesses to testify in court. In such circumstances, the Court considers that there was no good reason for their non-attendance.

81.  The Court also accepts, and the Government did not argue to the contrary, that the statements made by those witnesses were decisive for the consideration of the applicant’s case. The witnesses had first-hand knowledge of the key facts underlying the charges against the applicant in a case where the police played an active role in the contested events.

82.  Lastly, the Court discerns no effort on the part of the judge to make use of any counterbalancing measures to compensate for the difficulties experienced by the applicant on account of the admission of the witnesses’ written statements into evidence.

83.  Regard being had to the above, the Court concludes that the applicant’s right set forth in Article 6 § 3 (d) of the Convention has been undermined by the omissions on the part of the justice of the peace in the course of the trial. It remains for the Court to determine whether the appellate court afforded redress for the violation of the applicant’s rights (see De Cubber v. Belgium, 26 October 1984, § 33, Series A no. 86).

(b)  Appeal proceedings

84.  As regards the appeal hearing of 5 February 2013, the Court observes that the Government argued that the applicant had been duly notified of the appeal hearing, inferring that, by having failed to attend the appeal hearing, he had waived his right to appear in court. In this connection, it notes that the material submitted by the Government remains silent as to how the appellate court proceeded in order to verify whether the applicant or his counsel had been duly notified of the hearing. Nor did the Government submit any evidence to substantiate their argument that the applicant and his lawyer had indeed been informed of the appeal hearing and had chosen not to attend it. In such circumstances, the Court rejects the Government’s argument and concludes that the applicant and his lawyer were not informed of the date and time of the appeal hearing and that the applicant did not waive his right to take part in the hearing.

85.  The Court further takes into account the fact that in his statement of appeal, the applicant contested his conviction on factual and legal grounds, asserting his innocence. The Court considers that, in such circumstances, for the proper examination of the case, the issue of the applicant’s guilt or innocence could not, as a matter of a fair trial, have been determined by the appellate court without a direct assessment of the evidence given in person by the applicant and that the latter’s presence was necessary.

86.  The foregoing considerations are sufficient for the Court to conclude that the appellate court failed to ensure the applicant’s effective participation in the appeal hearing and that this failure had an adverse effect on the fairness of the proceedings.

(c)  Conclusions

87.  In view of the above findings, the Court concludes that the administrative proceedings against the applicant were unfair. The applicant’s right to confront adverse witnesses has been infringed. This defect was not cured on appeal owing to the judicial authorities’ failure to ensure the applicant’s effective participation in the appeal proceedings. There has been therefore a violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention.

VI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 7 TO THE CONVENTION

88.  The applicant complained that in 2015 the national courts had dismissed his application for review of the judgments of 23 April and 22 May 2012 without considering it. Notice of the complaint was given under Articles 6 of the Convention and Article 2 of Protocol No. 7 to the Convention, which, in so far as relevant, read as follows:

Article 6

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 2 of Protocol No. 7 (right of appeal in criminal matters)

“1.  Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

2.  This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”

89.  The Government submitted that all the documents concerning the proceedings in question had been destroyed before they had been given notice of the complaint in 2017 and that, as a result, they were unable to make any submissions on the issue.

90.  The applicant maintained the complaint.

91.  Having examined the material submitted, the Court is unable to conclude that, as alleged by the applicant, the national judicial authorities refused to accept his application for review of the judgments of 23 April and 22 May 2012 in his case. The Supreme Court advised the applicant of the avenue to pursue in order to apply for the review (see paragraph 7 above). As has been noted earlier, the review procedure referred to by the applicant is not subject to any ascertainable time-limit (see paragraph 72 above). It therefore still remains open to the applicant to apply for the review of the judgments in accordance with the procedure set out in the national legislation and communicated to him by the Supreme Court. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VII.  ALLEGED VIOLATION OF ARTICLE 4 § 1 OF PROTOCOL No. 7 TO THE CONVENTION

92.  The applicant complained under Article 4 of Protocol No. 7 to the Convention that he had been tried and convicted twice in the same matter. In particular, he referred to his conviction on the charge of disorderly conduct as established by the judgment of 15 January 2013 and upheld on appeal on 5 February 2013 and his conviction on the charge of assault on a law-enforcement officer as established by the judgment of 25 December 2013 and upheld on appeal on 28 August 2014. Article 4 of Protocol No. 7 to the Convention provides as follows:

“1.  No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2.  The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3.  No derogation from this Article shall be made under Article 15 of the Convention.”

93.  The Government contested that argument. They submitted that the applicant’s conviction on the charge of assault on a law-enforcement officer had not referred to the same facts as those forming the basis for his conviction on the administrative charge of disorderly conduct.

94.  The applicant maintained his complaint.

95.  The Court reiterates that the notion of the “same offence” – the “idem” element of the ne bis in idem principle in Article 4 of Protocol No. 7 – is to be understood as prohibiting the prosecution or conviction of a second “offence” in so far as it arises from identical facts or facts which are substantially the same (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 78-84, ECHR 2009).

96.  Having examined the material submitted and accepting that both sets of proceedings are to be regarded as criminal for the purposes of Article 4 of Protocol No. 7 to the Convention, the Court accepts the Government’s argument that the applicant’s conviction on the charge of assault on a law‑enforcement officer was based on facts separate from and subsequent in time to those on which his conviction for “disorderly conduct” had been founded. On 15 January 2013 the Lazarevskiy District Court established that the applicant had disturbed the peace by having been in an inebriated state, having used foul language and having refused to comply with the legitimate order of a police officer to stop his unruly behaviour. On 28 August 2013 the District Court considered the criminal case against the applicant on the charge of assault on a law-enforcement police officer, which, according to the District Court’s findings, the applicant had committed in response to the officer’s attempt to put an end to the applicant’s disorderly conduct. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VIII.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

97.  The applicant alleged that he had been fingerprinted in November 2011 in breach of Article 8 of the Convention, which, in so far as relevant, reads as follows:

“1.  Everyone has the right to respect for his private ... life ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

98.  The Government submitted that in November 2011 the applicant had not been fingerprinted in connection with the administrative proceedings against him.

99.  The applicant did not comment.

100.   The Court notes that when notice of this part of the application was given to the parties, they were invited to answer a specific question raised by the Court. The applicant made no submissions or any plea in relation to that issue.

101.  In such circumstances, the Court considers that the applicant no longer wishes to pursue this part of the application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the applicant’s complaints under Articles 3 and 13 of the Convention.

102.  In view of the above, it is appropriate to strike this part of the application out of the list.

IX.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

103.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

104.  The applicants claimed 46,000 euros (EUR) in respect of non‑pecuniary damage.

105.  The Government submitted that if any just satisfaction were to be awarded to the applicant, it should be in accordance with the Court’s case‑law.

106.  The Court considers that the applicant must have suffered distress and frustration as a result of the violation of his rights under Articles 3, 5 and 6 of the Convention Making its assessment on an equitable basis, it awards the applicant EUR 1,700 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

107.  The applicant also claimed EUR 380 for the costs and expenses incurred before the domestic courts and the Court.

108.  The Government did not comment.

109.  Regard being had to the documents in its possession and to its case‑law, the Court rejects the claim for costs and expenses.

C.  Default interest

110.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

 

2.  Decides to strike out of its list the applicant’s complaints under Article 6 of the Convention concerning his absence from the appeal hearing held on 3 February 2015, and his complaint under 8 of the Convention;

 

3.  Declares the complaints concerning the conditions of the applicant’s detention and the lack of an effective remedy in that respect, the alleged unlawfulness of his arrest and the alleged unfairness of the administrative proceedings against him concerning the incident of 12 January 2013 admissible and the remainder of the applications inadmissible;

 

4.  Holds that there has been a violation of Articles 3 and 13 of the Convention on account of the conditions of the applicant’s detention from 25 to 30 November 2011 and from 19 to 20 January 2015 and the lack of an effective remedy in that respect;

 

5.  Holds that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the applicant’s detention from 19 to 20 January 2015;

 

6.  Holds that there has been a violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention on account the administrative proceedings against the applicant concerning the incident of 12 January 2013;

 

7.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,700 (one thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

8.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                                  Alena Poláčková
       Registrar                                                                              President

 

APPENDIX

List of applications

 

1.  44240/12 Yakovlev v. Russia

2.  52783/13 Yakovlev v. Russia

3.  76021/14 Yakovlev v. Russia