FIRST SECTION

CASE OF RAKHIMBERDIYEV v. RUSSIA

(Application no. 47837/06)

JUDGMENT

STRASBOURG

18 September 2014

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 Rakhimberdiyev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Isabelle Berro-Lefèvre, President,
	Elisabeth Steiner,
	Khanlar Hajiyev,
	Mirjana Lazarova Trajkovska,
	Julia Laffranque,
	Ksenija Turković,
	Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 26 August 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 47837/06) 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 Tajikistani national, Mr Abduali Rakhimberdiyev (“the applicant”), on 3 November 2006.
2.  The applicant was represented by Mr A. Kulpin, a lawyer practising in Rubtsovsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3.  The applicant complained, in particular, about his unrecorded detention from 1 to 2 August 2005.
4.  On 17 June 2010 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1936.
A.  The applicant’s arrest
6.  In the summer of 2005, the applicant was hired as a guard to accompany a shipment of some sixty tonnes of onions from Tajikistan to Siberia. After a nine-day journey by rail, the cargo arrived at Rubtsovsk station in the Altay Region. Using sniffer dogs, Russian customs officials found concealed rubber containers inside onion skins that held a total of more than seventy-three kilograms of heroin.
7.  At about 9 p.m. on 1 August 2005 the applicant was taken to the organised crime department at the Rubtsovsk police station and placed in a room (no. 26) under police guard. A record of his arrest was not drawn up. The applicant spent the night on a mattress in the corridor.
8.  At 8.50 a.m. on 2 August 2005 a criminal case was instituted in connection with the uncovered shipment of drugs. The investigator, L., accepted the case at about 11 a.m. and interviewed the applicant. He was searched, and a small package of heroin was found concealed in his bag.
9.  Later that day a record of arrest was drawn up, and the applicant was formally remanded in custody on a charge of drug smuggling. According to the record, the applicant was arrested at 8.20 p.m. on 2 August 2005 at the Rubtsovsk police station.
B.  Criminal proceedings against the applicant
10.  During the applicant’s trial, his counsel repeatedly raised the issue of his unrecorded detention from 1 to 2 August 2005 and put questions to the police officers, who were heard as witnesses, about the events following the applicant’s apprehension. According to the hearing records, they replied as follows:
11.  The chief of the drug control department, M., stated:
“Rakhimberdiyev was taken to the department. While [there], he remained under guard. He stayed in the department for five hours. Pending [his placement in] the IVS (temporary detention cell), he was not allowed to go outside. During the twenty-four hour period of detention, Rakhimberdiyev did not go to the toilet, he did not ask to.”
12.  The deputy chief of the organised crime department, Ch., stated:
“Rakhimberdiyev could not get up and go out because we had to take a decision on the basis of the documents. I cannot say what the grounds for keeping him in the corridor were.”
13.  An operative of the drug control department, Shl., testified:
“Rakhimberdiyev could not go out because the door was locked, he was under guard.”
14.  An officer of the special-purpose department of the criminal police, B., stated:
“Rakhimberdiyev could not leave because I said so – the case was in progress, the expert was working. I do not know what the grounds for his detention were ... I stood guard over him so as to prevent him from going out ...”
15.  On 9 March 2006 the Rubtsovsk Town Court found the applicant guilty of drug smuggling with intent to supply and sentenced him to ten years’ imprisonment in a high-security facility.
16.  On 18 May 2006 the Altay Regional Court acquitted the applicant on the charge of smuggling, but upheld his conviction in the part concerning the possession of twenty-seven grams of heroin. The sentence was commuted to three years’ imprisonment.
C.  Complaints of unlawful detention
17.  In the meantime, counsel for the applicant complained to the Rubtsovsk town prosecutor about the applicant’s unrecorded detention from 1 to 2 August 2005. The prosecutor forwarded the complaint to the chief of the organised crime department for verification.
18.  On 13 April 2006 the chief of the organised crime department approved the conclusions of an internal inquiry a senior operative had carried out into the allegation of unlawful detention. The inquirer took a statement from the chief of the drug control department, M., who claimed that the applicant had been released on the night of 1 August 2005 but had asked to stay at the police station overnight because he had had nowhere else to go. Further statements from officers Ch., Shl., B., Me., and Shn. corroborated M.’s claims. Without questioning the applicant, the inquirer concluded that the allegation of unlawful detention was unsubstantiated.
19.  By a decision of 20 April 2006, an investigator from the Rubtsovsk town prosecutor’s office refused to open a criminal investigation into the applicant’s complaint of unlawful detention. He referred to the statements of the police officers, who had claimed unanimously that the applicant had refused to leave because he had had nowhere else to go, and that they had allowed him to stay overnight in the corridor, where he had slept on a mattress. The investigator did not interview the applicant, but reached the conclusion that his complaint to the prosecutor was to be considered “a way of seeking to avoid liability for the particularly serious crime he had committed”.
20.  Counsel for the applicant challenged the decision before a court.
21.  On 12 May 2006 the Rubtsovsk Town Court held that the investigator’s decision had not been lawful or justified:
“The descriptive part of the decision contradicts the findings of the investigation. Thus, [the investigator] established that on 1 August 2005 Rakhimberdiyev had been detained on suspicion of committing a crime and that his detention was only formalised on 2 August 2005 at 8.20 p.m.
The investigator did not assess all the documents in the case file: the expert report dated 1 August 2005; the judgment of 9 March 2006, which established that on 1 August 2005 Rakhimberdiyev had been taken to the organised crime department at the Rubtsovsk police [station] and had remained there under continuous guard until his formal arrest at 8.20 p.m. on 2 August 2005 ... The decision does not refer to the crime scene inspection report, which indicated that the scene had been inspected at 5.45 p.m. on 1 August 2005. All the witnesses testified that Rakhimberdiyev had been taken to the police station immediately after the inspection of the crime scene and had stayed there of his own will, which is contradicted by the statement of the convict.
The investigator merely reproduced the testimony of the police officers in his decision, without giving a legal assessment. The actions of the police officers, which were incompatible with Article 92 § 1 of the Code of Criminal Procedure, were not justified.”
22.  On 1 July 2006 another investigator from the Rubtsovsk town prosecutor’s office refused to open a criminal investigation, reproducing verbatim the text of the decision of 20 April 2006. On 21 July 2006 the town prosecutor quashed that decision and ordered an additional inquiry.
23.  Further to a complaint by counsel, on 24 July 2006 the Town Court held that the town prosecutor had unduly delayed the inquiry into the applicant’s complaint.
24.  On 2 August 2006 a senior investigator from the town prosecutor’s office again refused to open a criminal case. He found that it could not be shown to the required standard of proof that the applicant had stayed in the police station against his will.
25.  On 10 August and 19 October 2006 respectively, the Rubtsovsk Town Court and Altay Regional Court summarily upheld the investigator’s decision.
II.  RELEVANT DOMESTIC LAW
26.  Article 92 of the Code of Criminal Procedure sets out the procedure for the arrest of a suspect. A record of arrest must be drawn up within three hours of a suspect being brought before the investigating authorities or prosecutor. The record of arrest must include the date, time, place, grounds and reasons for the arrest. It should be signed by the suspect and the person who carried out the arrest. The investigator must notify the prosecutor of the arrest in writing within twelve hours.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
27.  The applicant complained that his detention from 1 to 2 August 2005 had been incompatible with Article 5 § 1 of the Convention, which 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 ...”
A.  Admissibility
28.  The Court observes that the thrust of the applicant’s complaint relates to the fact that his detention from 1 to 2 August 2005 had not been properly recorded or formalised. The Government did not mention any specific domestic remedy of which the applicant should have made use. On the facts, the Court notes that the applicant mentioned the issue in the criminal proceedings against him, and also lodged a separate criminal complaint about the situation, which arguably amounted to an unlawful deprivation of liberty, a criminal offence. The applicant and his counsel repeatedly requested that the prosecutors and investigators assess the lawfulness of the situation; however, the institution of criminal proceedings was refused, for there was nothing to indicate that a criminal offence had been committed. The normal chain of appeals was concluded with the final decision of the Altay Regional Court on 19 October 2006, when the applicant must have become aware of the ineffectiveness of the criminal complaint (see Aleksandr Sokolov v. Russia, no. 20364/05, § 65, 4 November 2010). He lodged his complaint of unlawful detention to the Court in a letter dated 3 November 2006, and then submitted his completed application form on 6 January 2007. Accordingly, his application was not belated.
29.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
30.  The Government, referring to the findings of the internal police inquiry and the decisions of the prosecutor’s office, maintained that the applicant’s allegations of unlawful detention from 1 to 2 August 2005 were unsubstantiated.
31.  The applicant submitted that the existence of a deprivation of liberty must be determined by reference to the actual situation of the individual, rather than by the legal characterisation the domestic authorities attribute to it. He denied that he had stayed at the police station of his own will, and pointed to the testimony of the police officers during his trial. Whereas Article 92 of the Code of Criminal Procedure required that a record of arrest be drawn up within three hours of a suspect being brought before the investigating authorities, his detention had been unrecorded from 9 p.m. on 1 August 2005 until 8.20 p.m. the following evening.
32.  The Court draws attention to the fundamental importance of the guarantees contained in Article 5 of the Convention for securing the rights of individuals in a democracy to be free from arbitrary detention by the authorities. It has consistently emphasised that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law, but must equally be in keeping with the very purpose of Article 5 of the Convention, namely to protect individuals from arbitrary detention (see Çakıcı v. Turkey [GC], no. 23657/94, § 104, ECHR 1999‑IV, with further references).
33.  In order to determine whether there has been a deprivation of liberty, the starting point for the Court’s assessment is 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 (see Nada v. Switzerland [GC], no. 10593/08, § 225, ECHR 2012, with further references).
34.  On the facts, the Court notes that, following the discovery of large quantities of heroin in the cargo which the applicant accompanied, at about 9 p.m. on 1 August 2005 he was taken to the Rubtsovsk police station. It appears from the testimony of the police officers given to the trial court that the applicant had remained there under constant guard, that he had not been allowed to leave the station or go outside, that the door had been locked, and that one of the officers had stood guard over him (see paragraphs 11 to 14 above). Their testimony before the trial court was at variance with their later version of events, according to which they had merely acceded to the applicant’s plea for overnight accommodation for humanitarian reasons (compare Guenat v. Switzerland, no. 24722/94, Commission decision of 10 April 1995, Decisions and Reports (DR) 81, p. 134). The Court lends credence to their testimony in court. Not only was it given under penalty of perjury, but it also coincided with the applicant’s description and appeared eminently plausible in the circumstances of the present case. Indeed, it would be highly irregular if a person suspected of smuggling an inordinately huge shipment of heroin would be allowed to walk free almost immediately, even before he could have been interviewed or examined. As it happened, the interview and search of the applicant did not take place until the following day, when a criminal case was opened and an investigator assigned to the case (see paragraph 8 above). Accordingly, the Court finds that, from the moment he was taken to the police station on 1 August 2005, the applicant remained under the effective control of the police officers there, and could not leave at will. He was therefore deprived of his liberty within the meaning of Article 5 § 1 of the Convention (compare Belousov v. Ukraine, no. 4494/07, § 83, 7 November 2013; Kortesis v. Greece, no. 60593/10, §§ 52-53, 12 June 2012, and Grinenko v. Ukraine, no. 33627/06, § 75, 15 November 2012).
35.  The Court reiterates its settled case-law that the absence of an arrest or detention record in respect of a period of deprivation of liberty must in itself be considered a most serious failing, as it has been the Court’s consistent view that the unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005, and Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006).
36.  The Court has already found violations in cases where the formalisation of an applicant’s status as an arrested crime suspect was delayed without reasonable explanation (see, among many other authorities, Smolik v. Ukraine, no. 11778/05, §§ 46-48, 19 January 2012; Grinenko, cited above, §§ 77-78; Ivan Kuzmin v. Russia, no. 30271/03, § 81-84, 25 November 2010; and Aleksandr Sokolov, cited above, § 72). It finds that the present case constitutes another example of this practice. Although the record was eventually prepared, the date and time of the applicant’s arrest listed therein were at variance with the actual date and time of his apprehension. The applicant’s overnight detention, from 1 to 2 August 2005, at the Rubtsovsk police station, was not recorded or acknowledged in any procedural form. The lack of a proper record of the applicant’s arrest is therefore sufficient for the Court to hold that his detention from 1 to 2 August 2005 was contrary to the requirements implicit in Article 5 of the Convention for the proper recording of deprivations of liberty (see Venskutė v. Lithuania, no. 10645/08, § 80, 11 December 2012; Aleksandr Sokolov, cited above, § 72, and Menesheva, cited above, §§ 87-89).
37.  There has therefore been a violation of Article 5 § 1 of the Convention on account of the applicant’s unrecorded detention from his arrest on 1 August 2005 till 8.20 p.m. on the following day.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
38.  The Court also examined the other complaints submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
39.  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
40.  The applicant asked the Court to determine the amount of compensation in respect of non-pecuniary damage.
41.  The Government considered that the finding of a violation would constitute sufficient just satisfaction.
42.  The Court awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.
B.  Costs and expenses
43.  The applicant did not make a claim for costs and expenses. Accordingly, the Court does not make an award under this head.
C.  Default interest
44.  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.  Declares the complaint concerning the applicant’s detention from 1 to 2 August 2005 admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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.
Done in English, and notified in writing on 18 September 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Nielsen	Isabelle Berro-Lefèvre
	Registrar	President