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FIRST
SECTION
CASE OF SHIMOVOLOS v. RUSSIA
(Application
no. 30194/09)
JUDGMENT
STRASBOURG
21 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Shimovolos v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
George
Nicolaou,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos, judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30194/09) 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 Sergey Mikhaylovich
Shimovolos (“the applicant”), on 5 November 2008.
- The
Russian Government (“the Government”) were represented by
Mr G.
Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that the police collected personal
data about him, in particular information about journeys made by him,
and subjected him to repeated identity checks, questioning and an
arrest.
- On
19 October 2009 the President of the First Section decided to give
notice of the application to the Government. He decided to give the
application priority treatment (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Nizhniy Novgorod. He is the
head of the Nizhniy Novgorod Human Rights Union.
A. Background information and the events of 13 and 14 May
2007
- It
transpires from a certificate issued by an official of the
Volgo-Vyatskiy Interior Department of Transport on 17 April 2008 that
on 23 March 2007 the applicant's name was registered in a
so-called “Surveillance Database” (“Сторожевой
контроль”).
An extract from the list of persons registered in that database shows
that the applicant's name is mentioned in the section entitled “Human
Rights Activists”.
- The
Surveillance Database contains information about skinheads, human
rights activists and other persons allegedly involved in extremist
activities. Whenever a person mentioned in the database purchases a
train or aeroplane ticket the Interior Department of Transport
receives an automatic notification.
- An
EU-Russia Summit was scheduled for 17 and 18 May 2007 in Samara.
- On 10 May 2007 the Volgo-Vyatskiy Interior Department
of Transport sent a telex to its local branches informing them that
protest rallies by several opposition organisations were planned for
18 May 2007. To prevent unlawful and extremist acts it was necessary,
in accordance with the Suppression of Extremism Act and Order no. 47,
On certain measures intended to strengthen the fight against
extremism, issued by the Interior Ministry on 14 April 2005, to
detect and stop all members of those organisations travelling to
Samara between 8 and 20 May 2007. In particular, it was necessary to
separate the travellers and dissuade them from going to Samara.
- On
an unspecified date the applicant bought a train ticket to Samara for
13 May 2007 and a return ticket for 16 May 2007.
- On 13 May 2007 the Volgo-Vyatskiy Interior Department
of Transport sent a telex to its local branches informing them that
the applicant intended to travel to Samara in connection with the
EU-Russia Summit. It also communicated his train reservation details.
Another telex sent on the same day by the Samara Interior Department
of Transport indicated that the applicant was travelling to Samara to
take part in the opposition rally “March of dissent” and
might be carrying extremist literature.
- On
the same day, as soon as the applicant mounted the train at Nizhniy
Novgorod station, three policemen entered his compartment, checked
his identity documents and asked him questions about the purpose of
his trip.
- At
Saransk station (the Mordoviya Republic) another identity check was
conducted and the applicant was again questioned about the purpose of
his trip. The policemen ordered the applicant to leave the train and
follow them to the police station, but the applicant refused to
comply. In the early morning of 14 May 2007, immediately after the
train entered the Samara region, the applicant's identity documents
were checked for a third time.
- When
the applicant got off the train in Samara he was stopped by the
police. The policemen checked his identity documents and took him to
the police station, saying that it was necessary to look up his name
in the police databases. They threatened to use force if the
applicant refused to comply with their order.
- The
police drew up an attendance report, using a standard template
entitled “Attendance report in respect of a person who has
committed an administrative offence”. The phrase “who has
committed an administrative offence” was struck through by the
police officer who filled in the template. The report indicated that
the applicant was brought to the police station on 14 May 2007
at 12.15 p.m. It was mentioned that he had been stopped on account of
information received in telexes nos. TP 1149 and 26/4 T 2021
of 13 May 2007. He was questioned about the purpose of his trip
and his acquaintances in Samara. He was released on the same day at
1 p.m.
- It follows from the submissions by the police officer
who escorted the applicant to the police station that he had received
information from his superiors that the applicant intended to
participate in an opposition rally and might be carrying extremist
literature. He had stopped the applicant and escorted him to the
police station in order to prevent him from committing administrative
and criminal offences. He had warned the applicant that if he refused
to comply, force would be used. He had asked the applicant questions
about the purpose of his visit to Samara. The applicant had denied
involvement in any extremist activities. He had not been searched
because he had no luggage and it was clear that he was not carrying
any extremist materials.
B. The applicant's complaints to prosecutors
- The
applicant lodged complaints with the prosecutor's offices of Nizhniy
Novgorod, Mordoviya Republic and Samara Region.
- On
15 June 2007 the Nizhniy Novgorod Transport Prosecutor's Office
refused to initiate criminal proceeding against the policemen who had
questioned the applicant in Nizhniy Novgorod, finding that the
applicant had voluntarily submitted to the identity check and
questioning.
- On
12 July 2007 the Ruzayevka Transport Prosecutor's Office (the
Mordoviya Republic) refused to initiate criminal proceedings against
the policemen who had allegedly questioned the applicant at Saransk
station. It found that on 13 May 2007 the Ruzaevka police station had
received telex no. 26/4-T-2021 from the Volgo-Vyatskiy Interior
Department of Transport, containing information that the applicant
was going to Samara by train with the intention of taking part in an
opposition rally and that he was suspected of carrying extremist
literature. The police had searched the train but could not find the
applicant.
- On
23 July 2007 the Kuybyshevskiy Transport Prosecutor's Office refused
to open criminal proceedings against the policemen who had stopped
the applicant in Samara. The prosecutor's office found that the
policemen had acted lawfully, in accordance with sections 2 and 10 of
the Police Act (see paragraph 33 below). In particular, they had
received information (telex no. 26/4-T-2021) about the applicant's
intention to participate in an opposition rally. There had therefore
been reasons to believe that he might be involved in the commission
of administrative offences, and it had been necessary to stop him and
bring him to the police station.
C. Court actions
1. First set of proceedings
- On
24 May 2007 the applicant brought an action against the
Volgo-Vyatskiy Interior Department of Transport before the
Kanavinskiy District Court of Nizhniy Novgorod. He claimed that the
telexes sent by the Volgo-Vyatskiy Interior Department of Transport
to the local offices, requiring them to stop the applicant, check his
identity documents and question him, had been unlawful for the
following reasons:
-
There had been no reason to check his documents or question him, as
the police already had information about his identity, and the date
and time of his arrival in and departure from Samara;
-
There could be no suspicion of his intention to engage in any
unlawful activities as, firstly, the rallies in Samara had been duly
authorised by the town council and, secondly, he had planned to leave
Samara before the date scheduled for the rallies;
- His
name had been entered in the police database unlawfully, without
prior judicial authorisation.
- He
further complained about his allegedly unlawful arrest and one-hour
detention at the police station in Samara. He claimed that all the
above actions had violated his right to respect for private life and
his right to liberty and security, and had interfered with his human
rights activities.
- The
Kanavinskiy District Court declared the application inadmissible,
finding that the applicant had failed to submit supporting documents.
This decision was subsequently quashed by the Supreme Court and the
case was remitted to the Kanavinskiy District Court.
- At
the hearing the representative of the Volgo-Vyatskiy Interior
Department of Transport testified that the applicant's name had been
registered in the Surveillance Database following an order from the
Interior Department of the Nizhniy Novgorod Region. The police had
therefore been entitled to take measures against him as specified in
the Police Act and the Operative-Search Act. As to the identity
checks in the Mordovia Republic and Samara Region, the Volgo-Vyatskiy
Interior Department of Transport had no territorial jurisdiction over
these local police offices.
- At
the applicant's request the Interior Department of the Nizhniy
Novgorod Region was joined as a co-respondent to the proceedings. Its
representative informed the court that commission of criminal or
administrative offences by a person was not a prerequisite for
inclusion of his name in the Surveillance Database. The applicant's
name had been registered in that database on the basis of
confidential information.
- On 29 May 2008 the Kanavinskiy District Court
dismissed the application. It found that section 11 § 4 of the
Police Act and sections 2, 5, 6 and 7 §§ 2 (b) and 4 of the
Operative-Search Act (see paragraphs 34 to 38 below) gave the police
powers to check documents and question citizens in certain cases. In
the applicant's case the identity checks and the questioning had been
justified by the fact that his name was registered in the
Surveillance Database. The applicant had voluntarily replied to the
questions asked by the police officers. No force or coercion had been
used against him by the police officers in Nizhniy Novgorod. The
Volgo-Vyatskiy Interior Department of Transport was not liable for
the measures taken against the applicant by the police officers in
the Mordoviya Republic and Saransk Region [the domestic court
apparently meant Samara region], as it had no territorial
jurisdiction over those regions. Finally, the court rejected the
applicant's request for an injunction to the Volgo-Vyatskiy Interior
Department of Transport to delete his personal data from the police
databases. The court found that the applicant's personal data had
been collected by the Interior Department of the Nizhniy Novgorod
Region rather than by the Volgo-Vyatskiy Interior Department of
Transport.
- The
applicant appealed, complaining in particular about insufficient
reasoning. He submitted that the District Court had failed to give
detailed answers to all his arguments.
- On
7 October 2008 the Nizhniy Novgorod Regional Court upheld the
judgment on appeal, endorsing the reasoning of the District Court.
2. Second set of proceedings
- On
8 December 2008 the applicant challenged the decision to register his
name in the Surveillance Database before the Nizhegorodskiy District
Court of Nizhniy Novgorod. He alleged, in particular, that that
decision interfered with his right to respect for private life
because it permitted the police to collect information about his
trips. He was also regularly questioned by the police about the
purpose of his trips, his income, his acquaintances and his political
opinions. That interference was not necessary in a democratic
society. Firstly, the Interior Ministry's orders governing the
creation and functioning of the Surveillance Database had not been
published. Society did not know the procedures for its operation.
According to the media, the database contained the names of more than
3,800 persons, the majority of whom were members of human rights and
opposition groups. Secondly, the decision to register his name in the
database had been arbitrary. He had never been suspected of any
criminal or administrative offences, had never been involved in
extremist activities and had never supported or called for violence.
The registration of his name in the database was apparently connected
with his human rights activities and his participation in opposition
rallies. He also complained of a violation of his right to liberty.
He had been unlawfully stopped by the police several times on the
sole ground that his name was registered in the Surveillance
Database.
- On 22 April 2009 the Nizhegorodskiy District Court
dismissed the applicant's claims. It noted that the applicant's name
had been deleted from the database in September 2007. It continued as
follows:
“The court considers that the Interior Department
of the Nizhniy Novgorod Region had grounds for registering [the
applicant's] name in the Surveillance Database. It follows from [the]
letter by a deputy head of the Department for Maintaining Order on
Transport of the Interior Ministry of Russia that the Surveillance
Database pursues the aim of collecting information about the purchase
by the persons listed in it of travel tickets to places [where] mass
events [are planned]. Thus, the Surveillance Database does not
interfere with the private lives of those listed as [the database]
contains only data on their trips in connection with their
professional or public activities. The registration of a person's
name in the Surveillance Database cannot be considered as breaching
his/her rights or freedoms or hindering the exercise of such rights
and freedoms or imposing an unlawful obligation or liability.
... [the applicant] is the representative of the Moscow
Helsinki Group, a public activist and the head of the Nizhniy
Novgorod Human Rights Union. He organises round tables and seminars
for human rights activists. In connection with his public activities
he travels to many Russian towns. Thus, in May 2007 he travelled to
Samara with the aim of investigating the restrictions on public
assemblies during the G8 summit in the Samara region. The court
considers that, taking into account [the applicant's] public
activities, the Interior Department of the Nizhniy Novgorod Region
was entitled to register his name in the Surveillance Database
because, in accordance with section 11 § 4 of the Police
Act, when discharging their duties the police may require citizens
and officials to provide explanations, information or documents...”
II. RELEVANT DOMESTIC LAW
A. The Administrative Offences Code
- The
Administrative Offences Code provides that a police officer may
escort 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 “attendance report” or
refer to the fact of escorting the individual to the station in the
report on the administrative offence. The individual concerned must
be given a copy of that report (section 27.2 §§ 1 (1), 2
and 3).
- 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 (Article 25.5 §§ 1 of the
Code). The arresting officer must draw up “an administrative
arrest report” (Article 27.4 of the Code).
B. The Police Act
- The Police Act of 18 April 1992 (No. 1026-I) provides
that the tasks of the police are, inter alia, the prevention
and suppression of criminal and administrative offences and
protection of public order and public safety (section 2). Their
duties include the prevention and suppression of criminal and
administrative offences, detection of circumstances conducive to
commission of offences and taking measures to obviate such
circumstances (section 10 § 1).
- Section 11 of the Police Act provides that when
discharging their duties the police may, in particular:
§
- check citizens' identity documents if there are
sufficient grounds to suspect that they have committed a criminal or
administrative offence or have fled from justice; and search citizens
and their belongings if there are sufficient reasons to believe that
they possess weapons, ammunition, explosives or drugs;
§
4. require citizens and officials to provide explanations,
information or documents;
§
5. arrest persons suspected of administrative offences or persons who
have unlawfully entered or attempted to enter a secure area;
§
7. arrest persons suspected of a criminal offence or persons who have
been remanded in custody by a judicial order;
§
8. arrest persons who have fled from justice;
§
- arrest persons who have evaded compulsory medical
treatment or educational supervision;
§
10. arrest minors suspected of criminal or administrative offences;
§
- arrest persons in a state of alcoholic intoxication if
they have lost their ability to walk unaided or could cause harm to
others or to themselves (section 11).
C. Operational-Search Activities Act
- The
Operational-Search Activities Act of 12 August 1995 (no. 144 FZ)
provides that the aims of operative search activities are: (1) the
detection, prevention, suppression and investigation of criminal
offences and identification of persons conspiring to commit, or
committing, or having committed a criminal offence; (2) finding
fugitives from justice and missing persons; (3) obtaining information
about events or activities endangering the State, military,
economical or ecological security of the Russian Federation (section
2).
- State
officials and organs performing operational-search activities are to
show respect for the private and family life, home and correspondence
of citizens. It is prohibited to perform operational-search
activities to attain aims or objectives other than those specified in
this Act (section 5).
- Operational-search
activities include, inter alia, questioning and identity check
(section 6).
- Section 7 of the Operational-Search Activities Act
provides that operational-search activities may be conducted, inter
alia, on the following grounds:
(1)
pending criminal proceedings;
(2)
receipt by the police of information
(a)
that a criminal offence has been committed or is ongoing, or is
being conspired, and about persons conspiring to commit,
or committing, or having committed a criminal offence, if this
information is insufficient to open criminal proceedings; (b) about
events or activities endangering the State, military, economical or
ecological security of the Russian Federation;
(c)
about fugitives from justice;
(d)
about missing persons or unidentified bodies;
...
(4) receipt
of a request from another State agency which is performing
operational-search activities on the grounds specified in this
section (section 7).
D. The Suppression of Extremism Act
- The Suppression of Extremism Act (Federal Law no.
114-FZ of 25 July 2002) requires State agencies to take
preventive measures against extremism to detect and eliminate causes
of, and conditions for, extremist activities, as well as measures to
detect, prevent and suppress extremist activities conducted by
non-profit and religious organisations and persons (section 3).
E. Legal provisions governing the police databases
-
Order no. 980, On measures for enhancement of the automatic
information system used by the interior departments of transport,
issued by the Interior Ministry on 1 December 1999 (unpublished, a
copy was submitted by the Government), directed that a software
database code-named “Search-Highway”
(“Розыск-Магистраль”)
be created and installed. Its purpose was to facilitate discovery of
those suspected of criminal offences whose names were on the wanted
persons' list. It was to be linked to the databases of the railway
and airline companies, so that whenever any of the persons listed
bought a train or airplane ticket an automatic notification was sent
to the police, thereby allowing the police to arrest that person.
- Order
No. 1070, On installing the software database “Search-Highway”
in the interior departments of transport, issued by the Interior
Ministry on 22 December 1999 (unpublished, a copy was submitted by
the Government) provided that the database be installed in the first
half of 2000. The appendix to that Order established the procedure
for its operation. In particular, it established that the following
persons should be included in the database: (1) persons on the
Interpol Wanted Fugitives list; (2) foreign nationals or stateless
persons whose names were put on the wanted persons' list in
connection with criminal offence committed on the territory of the
Russian Federation; (3) foreign nationals whose entry into the
Russian Federation was prohibited or restricted; (4) persons
suspected of the following serious or especially serious offences:
unlawful transportation of arms, ammunition or explosives;
criminal explosions; unlawful traffic of antiques or their smuggling
out of the Russian Federation; premeditated murders; terrorist acts;
drug trafficking; financial crimes; (5) leaders of ethnic
communities; leaders and active members of organised criminal groups.
- Order no. 47, On certain measures intended to
strengthen the fight against extremism, issued by the Interior
Ministry on 14 April 2005 (unpublished), directed that a database of
potential extremists be created as a part of the “Search-Highway”
database. It was code-named “Surveillance Database”
(“Сторожевой
контроль”).
- According
to Mr Sh., an officer from the Volgo-Vyatskiy Interior Department of
Transport whose affidavit was submitted by the Government, the
decision to register a person's name in the “Surveillance
Database” is taken by the Interior Ministry or its regional
departments on the basis of confidential information.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his arrest and one-hour detention at a
police station in Samara on 14 May 2007 had been unlawful. He relied
on Article 5 § 1 of the Convention, which provides:
“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:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation 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;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
A. Admissibility
- 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
- The
applicant submitted that on 14 May 2007 he had been “deprived
of his liberty” within the meaning of Article 5. The police
officer had threatened to use force against him if he refused to
proceed to the police station and he was not allowed to leave the
police station without an explicit permission from the police. His
detention was arbitrary and unlawful because he had not been
suspected of any offence. Moreover, in view of the unclear legal
basis for his arrest he had been deprived of all procedural
guarantees.
- The Government submitted that the applicant had been
arrested in accordance with section 11 §§ 5 and 7 of the
Police Act (see paragraph 34 above) and that his arrest had been
necessary to prevent him from committing “offences of an
extremist nature”. A record of the arrest had been drawn up and
the length of the arrest had not exceeded three hours, as required by
the domestic law (see paragraph 32 above). His arrest had therefore
been lawful.
- The
Court notes, firstly, that the length of time during which the
applicant was held at the police station did not exceed forty-five
minutes. It therefore considers that the first issue to be determined
is whether the applicant was “deprived of his liberty”
within the meaning of Article 5 of the Convention.
- The
Court reiterates that in order to determine whether there has been a
deprivation of liberty, the starting-point must be the concrete
situation of the individual concerned and account must be taken of a
whole range of factors arising in a particular case such as the type,
duration, effects and manner of implementation of the measure in
question. The distinction between deprivation of, and a restriction
upon, liberty is merely one of degree or intensity and not one of
nature or substance. Although the process of classification into one
or other of these categories sometimes proves to be no easy task in
that some borderline cases are a matter of pure opinion, the Court
cannot avoid making the selection upon which the applicability or
inapplicability of Article 5 depends (see Guzzardi v. Italy,
6 November 1980, Series A no. 39, §§ 92 and 93, and
H.L. v. the United Kingdom, no. 45508/99, § 89, ECHR
2004-IX). Article 5 of the Convention may apply to deprivations of
liberty of even of a very short length (see Gillan and Quinton v.
the United Kingdom, no. 4158/05, § 57, ECHR 2010 ...
(extracts), where the applicants were stopped for a search
which did not exceed 30 minutes; see also X. v. Austria, no.
8278/78, Commission decision of 3 December 1979; and Iliya
Stefanov v. Bulgaria, no. 65755/01, § 71, 22 May 2008).
- Turning
to the circumstances of the present case, the Court notes that the
Government did not contest the applicability of Article 5 to the
applicant's situation. The applicant was brought to the police
station under a threat of force and he was not free to leave the
premises without the authorisation of the police officers. The Court
considers that there was an element of coercion which,
notwithstanding the short duration of the arrest, was indicative of a
deprivation of liberty within the meaning of Article 5 § 1 (see
Gillan and Quinton, cited above, § 57, and Foka v.
Turkey, no. 28940/95, §§ 74-79, 24 June
2008). In these circumstances the Court finds that the applicant was
deprived of his liberty within the meaning of Article 5 § 1.
- The
Court must next ascertain whether the applicant's deprivation of
liberty complied with the requirements of Article 5 § 1. It
reiterates in this connection that 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, among many others,
Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports of
Judgments and Decisions 1997 IV).
- The
Court notes that the applicant's deprivation of liberty clearly did
not fall under sub-paragraphs (a), (d), (e) and (f) of paragraph 1 of
Article 5. Nor was it covered by sub-paragraph (b), since there is no
evidence of the applicant's failure to comply with any lawful court
order or to fulfil any obligation prescribed by law. Indeed, he
complied with the statutory obligations to show his identity
documents at the request of the police officer, to reply to the
officer's questions and to obey the officer's orders (see, by
contrast, Vasileva v. Denmark, no. 52792/99, §§
36-38, 25 September 2003). It remains to be determined whether
the applicant's deprivation of liberty fell within the ambit of
sub-paragraph (c).
- It
is significant in this connection that the applicant was not
suspected of “having committed an offence”. According to
the Government, he was arrested for the purpose of preventing him
from committing “offences of an extremist nature” (see
paragraph 47 above). The Court will therefore examine whether the
applicant's arrest could be “reasonably considered necessary to
prevent his committing an offence” within the meaning of
Article 5 § 1 (c).
- It
transpires from the domestic judgments that police measures, such as
identity checks, questioning and escorting to the police station,
were taken against the applicant during his trip to Samara because
his name was registered in the Surveillance Database. The only reason
for the registration of his name in that database of “potential
extremists” was that he was a human rights activist (see
paragraphs 26 and 30 above). The Court reiterates in this connection
that Article 5 § 1 (c) does not permit a policy of general
prevention directed against an individual or a category of
individuals who are perceived by the authorities, rightly or wrongly,
as being dangerous or having propensity to unlawful acts. It does no
more than afford the Contracting States a means of preventing a
concrete and specific offence (see Guzzardi, cited above, §
102).
- The
Court observes that neither the domestic authorities nor the
Government mentioned any concrete and specific offences which the
applicant had to be prevented from committing. In the Court's
opinion, the Government's vague reference to “offences of an
extremist nature” is not specific enough to satisfy the
requirements of Article 5 § 1 (c) (see, mutatis
mutandis, Ciulla v. Italy, 22 February 1989, §
40, Series A no. 148). The domestic documents relating to the
applicant's arrest are no more specific in that respect. It follows
from the attendance report that the applicant had been brought to the
police station on the basis of information contained in two telexes.
The perusal of those telexes reveals that an opposition rally was
planned in Samara and that the Interior Department considered it
necessary to stop members of certain opposition organisations from
taking part in that rally in order to prevent them from committing
“unlawful and extremist acts” (see paragraph 9 above). No
concrete and specific offences were referred to.
- The
only specific suspicion against the applicant mentioned in the
telexes was the suspicion that he might be carrying extremist
literature (see paragraph 11 above). However, the Government did not
provide any facts or information which could satisfy an objective
observer that that suspicion was “reasonable”. The Court
notes with concern that the suspicion was apparently based on the
mere fact that the applicant was a member of human rights
organisations. In its opinion, such membership cannot in any case
form a sufficient basis of a suspicion justifying the arrest of an
individual. Moreover, that suspicion was dispelled, according to the
testimony by the escorting police officer, due to the fact that the
applicant did not have any luggage with him (see paragraph 16 above).
The Court concludes from the above that the applicant's arrest could
not be “reasonably considered necessary to prevent his
committing an offence” within the meaning of Article 5 § 1
(c).
- It
follows that the applicant's arrest did not have any legitimate
purpose under Article 5 § 1 and was accordingly arbitrary.
There has therefore been a violation of that Article.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained under Article 8 of the Convention about the
registration of his name in the Surveillance Database and the
consequent collection of personal data about him by the police.
Article 8 provides:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
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.”
A. Admissibility
- 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. Submissions by the parties
-
The applicant submitted that the registration of his name in the
Surveillance Database had interfered with his private life because it
had permitted the police to collect information about his trips. That
interference had been unlawful because the ministerial orders
governing the creation and maintenance of the database had never been
published. Moreover, the interference had not been necessary in a
democratic society. There had been no reason to register his name in
the database as he was a law-abiding citizen and had never been
suspected of any criminal or administrative offences. According to
the applicant, the Surveillance Database contained information on
more than 3,800 persons, the majority of whom, like the applicant
himself, had been included in that database because of their public
and human rights activities.
- The
Government submitted, firstly, that the registration of the
applicant's name in the Surveillance Database and the identity checks
and questioning to which he had been subjected during his trip to
Samara had not interfered with his private life. The applicant had
been travelling to Samara for professional reasons and he had been
questioned by the police about his professional and public
activities. He had not been asked any questions about his private
life.
- The
Government conceded, secondly, that the ministerial orders governing
the creation and maintenance of the Surveillance Database had not
been published because they were confidential. They refused to submit
copies of those orders or describe the procedure for the operation of
the database. They affirmed, however, that those orders were
compatible with domestic law, in particular with the Police Act, the
Operational-Search Activities Act and the Suppression of Extremism
Act. Those Acts gave the police powers to check identity documents
and ask questions. The measures taken against the applicant had
therefore been lawful.
- Finally,
the Government argued that the maintenance of confidential police
databases pursed the legitimate aim of protecting national security.
As to the proportionality of the interference, they submitted that
the applicant had been one of the founders of the Russian-Chechen
Friendship Society, which had been declared an extremist
organisation. He was also the head of the Nizhniy Novgorod Human
Rights Union, which had earlier published an extremist article in its
newspaper. He had been travelling to Samara to investigate hindrances
to the right to peaceful assembly in that town. The domestic
authorities had stopped and questioned him to make sure that his
investigation would not breach the rights and freedoms of others and
would not endanger national security. The measures taken against the
applicant had thus been “necessary in a democratic society”.
2. The Court's assessment
(a) Whether there was an interference with
private life
- The Court reiterates that private life is a broad
term not susceptible to exhaustive definition. Article 8 is not
limited to the protection of an “inner circle” in which
the individual may live his own personal life as he chooses and to
exclude therefrom entirely the outside world not encompassed within
that circle. It also protects the right to establish and develop
relationships with other human beings and the outside world. Private
life may even include activities of a professional or business nature
(see Niemietz v. Germany, 16 December 1992, § 29, Series
A no. 251 B, and Halford v. the United Kingdom, 25 June
1997, § 42-46, Reports 1997 III). There is,
therefore, a zone of interaction of a person with others, even in a
public context, which may fall within the scope of “private
life” (see Perry v. the United Kingdom, no. 63737/00,
§ 36, ECHR 2003-IX (extracts); Peck v. the United Kingdom,
no. 44647/98, § 57, ECHR 2003-I, and P.G. and J.H. v. the
United Kingdom, no. 44787/98, § 56, ECHR 2001-IX).
- The Court has earlier found that the systematic
collection and storing of data by security services on particular
individuals constituted an interference with these persons' private
lives, even if that data was collected in a public place (see
Peck, cited above, § 59, and P.G. and J.H., cited
above, §§ 57-59) or concerned exclusively the
person's professional or public activities (see Amann v.
Switzerland ([GC], no. 27798/95, §§ 65-67, ECHR
2000-II, and Rotaru v. Romania [GC], no. 28341/95,
§§ 43-44, ECHR 2000-V). Collection, through a GPS
device attached to a person's car, and storage of data concerning
that person's whereabouts and movements in the public sphere was also
found to constitute an interference with private life (see Uzun v.
Germany, no. 35623/05, §§ 51-53, ECHR 2010 ...
(extracts)).
- Turning
to the circumstances of the present case, the Court observes that the
applicant's name was registered in the Surveillance Database which
collected information about his movements, by train or air, within
Russia. Having regard to its case-law cited in paragraphs 64 and 65
above, the Court finds that the collection and storing of that data
amounted to an interference with his private life as protected by
Article 8 § 1 of the Convention.
(b) Whether the interference was “in
accordance with the law”
- Under
the Court's case-law, the expression “in accordance with the
law” within the meaning of Article 8 § 2 requires,
firstly, that the measure should have some basis in domestic law; it
also refers to the quality of the law in question, requiring it to be
accessible to the person concerned, who must, moreover, be able to
foresee its consequences for him (see, among other authorities,
Kruslin v. France, 24 April 1990, § 27, Series A no.
176-A; Lambert v. France, 24 August 1998, § 23, Reports
1998 V, and Perry, cited above, § 45).
-
The Court reiterates in this connection that in the special context
of secret measures of surveillance the above requirements cannot mean
that an individual should be able to foresee when the authorities are
likely to resort to secret surveillance so that he can adapt his
conduct accordingly. However, especially where a power vested in the
executive is exercised in secret, the risks of arbitrariness are
evident. It is therefore essential to have clear, detailed rules on
the application of secret measures of surveillance, especially as the
technology available for use is continually becoming more
sophisticated. The law must be sufficiently clear in its terms to
give citizens an adequate indication of the conditions and
circumstances in which the authorities are empowered to resort to any
measures of secret surveillance and collection of data. In addition,
because of the lack of public scrutiny and the risk of abuse
intrinsic to any system of secret surveillance, the following minimum
safeguards should be set out in statute law to avoid abuses: the
nature, scope and duration of the possible measures, the grounds
required for ordering them, the authorities competent to permit,
carry out and supervise them, and the kind of remedy provided by the
national law (see Uzun, cited above, §§ 61-63;
Association for European Integration and Human Rights and
Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 71-77, 28 June
2007, Liberty and Others v. the United Kingdom, no. 58243/00,
§ 62, 1 July 2008, and, mutatis mutandis, S. and
Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §
95 and 96, 4 December 2008).
- Turning to the present case, the Court observes that
the creation and maintenance of the Surveillance Database and the
procedure for its operation are governed by ministerial order no. 47
(see paragraph 42 above). That order is not published and is not
accessible to the public. The grounds for registration of a person's
name in the database, the authorities competent to order such
registration, the duration of the measure, the precise nature of the
data collected, the procedures for storing and using the collected
data and the existing controls and guarantees against abuse are thus
not open to public scrutiny and knowledge.
- For the above reasons, the Court does not consider
that the domestic law indicates with sufficient clarity the scope and
manner of exercise of the discretion conferred on the domestic
authorities to collect and store in the Surveillance Database
information on persons' private lives. In particular, it does not, as
required by the Court's case-law, set out in a form accessible to the
public any indication of the minimum safeguards against abuse. The
interference with the applicant's rights under Article 8 was not,
therefore, “in accordance with the law”.
- It
follows that there has been a violation of Article 8 in this case.
III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4
- The
Court decided, of its own motion, to communicate to the Government
the issue of whether the registration of the applicant's name in the
Surveillance Database violated his rights under Article 2 of Protocol
No. 4, which provides:
“1. Everyone lawfully within the
territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any
country, including his own.
3. No restrictions shall be placed on the
exercise of these rights other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health
or morals, or for the protection of the rights and freedoms of
others.
4. The rights set forth in paragraph 1 may
also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a
democratic society.”
- Having
regard to the conclusion above under Article 8 of the Convention, the
Court considers that, although the complaint is admissible, no
separate issue arises under Article 2 of Protocol No. 4.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
- The
applicant also invoked Article 14 of the Convention taken in
conjunction with Article 8 in relation to the registration of his
name in the Surveillance Database. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- Having regard to the conclusion above under Article 8
of the Convention, the Court considers that, although the complaint
is admissible, no separate issue arises under Article 14 of the
Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as these complaints fall within the Court's jurisdiction, it
finds that they do not disclose any appearance of a violation of the
rights and freedoms set forth in the Convention or its Protocols. It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant did not submit a claim for just satisfaction within the
specified time-limit. Accordingly, the Court considers that there is
no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
registration of the applicant's name in the Surveillance Database and
his arrest admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that no separate issue arises under
Article 2 of Protocol No. 4;
- Holds that there is no need to examine the
complaint under Article 14 of the Convention taken in conjunction
with Article 8;
- Decides not to make an award under Article 41 of
the Convention.
Done in English, and notified in writing on 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić Registrar President
