POPOV v. RUSSIA - 32013/07 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2016] ECHR 660 (19 July 2016)

In the case of Popov v. Russia,

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

          Helen Keller, President,
          Johannes Silvis,
          Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 28 June 2016,

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

PROCEDURE

1. The case originated in an application (no. 32013/07) 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 Boris Aleksandrovich Popov (“the applicant”), on 17 August 2005.

2. The applicant was represented by Ms O. Preobrazhenskaya, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

3. On 5 October 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1975 and lives in Novokuznetsk, the Kemerovo Region.

A. The applicant’s questioning of 14 June 2007 and civil proceedings for compensation

5. In the morning of 14 June 2007 policemen came to the applicant’s flat and took him to the police station in Pospelikha village in the Altay Region (“the police station”) for an interview. He was questioned about the circumstances of a theft which had occurred the day before and made self-incriminating statements.

6. During the questioning the investigator had to answer a telephone call and stepped out of the office. Left alone, the applicant attempted to walk out but was stopped at the door by a policeman who told him to stay inside and wait. He spent around four hours in the investigator’s office before he was allowed to leave. According to the Government, the applicant came to the police station voluntarily and stayed there for no longer than forty minutes.

7. On 18 June 2007 the investigators charged the applicant with theft but dropped the charges one month later.

8. In 2009 the applicant brought a civil claim for compensation for unlawful criminal prosecution and deprivation of liberty.

9. On 20 October 2009 the Pospelikhinskiy District Court of the Altay Region examined the case in the applicant’s absence. The court noted that the applicant had been informed about the date and place of the hearing but, as he was serving a term of imprisonment, his presence in person could not be ensured. On the merits, the court held that the applicant was entitled to compensation for the unlawful criminal prosecution. It also considered that the questioning of 14 June 2007 had not amounted to a deprivation of liberty and could not give rise to any form of compensation. The applicant was awarded 1,000 Russian roubles (RUB) in respect of non-pecuniary damage.

10. The applicant appealed against the judgment, arguing that the court award was too low and that it did not take into account the deprivation of liberty. He also requested leave to appear before the appeal court. On 10 February 2009 the Altay Regional Court dismissed the applicant’s appeal in his absence, endorsing the District Court’s reasoning.

11. The judgment of 20 October 2009 was enforced on 5 March 2011.

B. Civil action against the applicant

12. In 2007 Ms I. brought a civil action against the applicant, seeking to recover a contractual debt. On 5 July 2007 the Justice of the Peace of the Pospelikhinskiy District of the Altay Region examined the case in the applicant’s absence. The judgment indicated that the applicant was serving a term of imprisonment and that he had been informed in a timely way about the date and place of the hearing. The Justice of the Peace granted the claim and ordered the applicant to pay RUB 11,311 to Ms I.

13. The applicant appealed to the Pospelikhinskiy District Court and sought leave to appear before the appeal court. By an interim decision of 12 September 2007, the District Court refused the applicant leave to appear, finding that the Code of Civil Procedure did not provide for escorting detained litigants to courts hearing civil cases. On 10 October 2007 the Pospelikhinskiy District Court upheld the judgment on appeal, endorsing the findings of the Justice of the Peace. The applicant received a copy of the appeal judgement in November 2007.

II. RELEVANT DOMESTIC LAW

14. Article 77.1 of the Code on the Execution of Sentences provides that a convicted person may be transferred from a correctional colony to a temporary detention facility if his or her participation is required as a witness, a victim or a suspect in connection with certain investigative measures in a criminal case. It does not mention the possibility of a convicted person taking part in civil proceedings, whether as a claimant or a defendant.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

15. The applicant complained that his detention at Pospelikha police station on 14 June 2007 had been unlawful and that the domestic courts had refused his compensation claim. He relied on Article 5 of the Convention, which reads in its relevant parts as follows:

“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;

...

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A. Admissibility

16. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

17. The Government denied that the applicant had ever been detained because he had not been arrested in procedural terms and because no formal detention measures had been taken. The police had merely asked the applicant to go to the police station with a view to obtaining statements about a theft. The applicant arrived on his own, was not subjected to any coercive measures, and his name was not listed in the logs of the police station. The domestic courts had rejected his claim for compensation for an allegedly unlawful deprivation of liberty for the same reasons. The applicant maintained his complaint.

18. The Court notes that the parties disagree as to whether the applicant’s questioning amounted to a deprivation of liberty. It will therefore need to establish whether the applicant was “deprived of his liberty” within the meaning of Article 5 § 1 of the Convention, before examining whether his rights under Article 5 §§ 1 and 5 of the Convention have been violated.

1. Existence of a deprivation of liberty

19. The Court reiterates that the distinction between deprivation of liberty and a restriction on liberty is merely one of degree or intensity and not one of nature or substance. In determining whether there has been a deprivation of liberty, the Court takes account 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 (see Nada v. Switzerland [GC], no. 10593/08, § 225, ECHR 2012, with further references). The protection against arbitrary detention enshrined in Article 5 § 1 of the Convention applies to deprivation of liberty of any duration, however short it may have been (see Krupko and Others v. Russia, no. 26587/07, 26 June 2014, where the applicants remained at a police station for three hours; Shimovolos v. Russia, no. 30194/09, 21 June 2011, in which the applicant spent forty-five minutes at the police station; and Gillan and Quinton v. the United Kingdom, no. 4158/05, ECHR 2010 (extracts), where the applicants were stopped for a thirty-minute search).

20. On the facts, the Court notes that according to the applicant police officers prevented him from leaving the office during the interview and told him to stay inside and wait for the investigator’s return (see paragraph 6 above). In their submissions the Government did not claim that the applicant had been free to leave the police station, at least not until he had been allowed to do so. They also failed to submit any document providing a detailed account of what happened at the police station when the applicant was inside. Once it has been established that the applicant was not free to leave the station, the issue of whether he arrived there voluntarily or was taken there, which was also raised by the respondent Government, becomes immaterial (see Salayev v. Azerbaijan, no. 40900/05, § 42, 9 November 2010, and I.I. v. Bulgaria, no. 44082/98, § 86, 9 June 2005). The fact that the Russian authorities considered that the applicant had not been detained within the meaning of Russian law does not mean that he was not deprived of his liberty under the terms of the Convention (see Creangă v. Romania [GC], no. 29226/03, § 92, 23 February 2012). In those circumstances, the Court considers it established that there was an element of coercion which, notwithstanding the short duration of the detention, was indicative of a deprivation of liberty within the meaning of Article 5 § 1 of the Convention (see, in addition to the cases cited above, M.A. v. Cyprus, no. 41872/10, § 193, ECHR 2013 (extracts); Osypenko v. Ukraine, no. 4634/04, § 49, 9 November 2010; and Foka v. Turkey, no. 28940/95, §§ 74-79, 24 June 2008).

2. Compliance with Article 5 § 1

21. The Court must next ascertain whether the deprivation of the applicant’s liberty complied with the requirements of Article 5 § 1 of the Convention. It clearly did not fall under sub-paragraphs (a), (d), (e) and (f) of paragraph 1 of Article 5 of the Convention. Nor was it covered by sub-paragraph (b), since there is no evidence that the applicant failed to comply with any lawful court order or to fulfil any obligation prescribed by law. In fact the applicant answered the officers’ questions and obeyed their orders (contrast Vasileva v. Denmark, no. 52792/99, §§ 36-38, 25 September 2003). Further, it is not disputed by the parties that the applicant was not formally suspected of, or charged with, any offence and that no criminal proceedings were instituted against him before 18 June 2007 (see paragraph 7 above). It is clear that the deprivation of the applicant’s liberty on 14 June 2007 could not have been effected “for the purpose of bringing [him] before the competent legal authority on reasonable suspicion of having committed an offence” within the meaning of Article 5 § 1 (c) of the Convention (compare Makhmudov v. Russia, no. 35082/04, §§ 82-85, 26 July 2007). Hence, the deprivation of liberty did not have any legitimate purpose under Article 5 § 1 of the Convention and was arbitrary.

22. It follows that there has been a violation of Article 5 § 1 of the Convention.

3. Compliance with Article 5 § 5

23. The Court reiterates that a right to compensation under Article 5 § 5 of the Convention arises if a breach of one of the Article’s other four paragraphs has been established, directly or in substance, either by the Court or by the domestic courts (see, among many other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012; Svetoslav Dimitrov v. Bulgaria, no. 55861/00, § 76, 7 February 2008; and Çağdaş Şahin v. Turkey, no. 28137/02, § 34, 11 April 2006).

24. In the present case the Court has found a violation of Article 5 of the Convention because the applicant was arbitrarily deprived of his liberty on 14 June 2007. The domestic courts held that the applicant was not entitled to any form of compensation because the events of 14 June 2007 did not amount to a deprivation of liberty (see paragraph 9 above). It is clear that the applicant did not have an enforceable right to compensation for the deprivation of his liberty, which has been found to be a violation of Article 5 of the Convention.

25. There has accordingly been a violation of Article 5 § 5 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

26. The applicant further complained that his right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the domestic courts’ refusal to ensure his effective participation in the civil proceedings to which he was a party, including the appeal hearings on 10 October 2007 and 10 February 2009. Article 6 § 1 of the Convention reads in the relevant part as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal ...”

A. Admissibility

27. 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

28. The Government submitted that the applicant had been duly notified of the hearing dates and that the nature of the legal disputes had not called for his attendance in person. The applicant’s compensation claim had been sufficiently substantiated in his written statement, and the applicant’s presence at the hearing concerning the contractual debt had been unnecessary. As there was no absolute right to be present at a civil court hearing, the applicant’s right to effective participation in the proceedings to which he was a party had not been breached. The applicant maintained his complaint.

29. The Court notes at the outset that the applicant expressed a wish to attend the appellate hearings in person in both sets of proceedings. But, as in many similar cases against Russia, he was refused leave to appear solely by reference to the absence of any legal rule making his presence mandatory (see Bortkevich v. Russia, no. 27359/05, §§ 63-69, 2 October 2012; Karpenko v. Russia, no. 5605/04, §§ 89-94, 13 March 2012; Roman Karasev v. Russia, no. 30251/03, § 68, 25 November 2010; Artyomov v. Russia, no. 14146/02, §§ 204-08, 27 May 2010; and Shilbergs v. Russia, no. 20075/03, § 107, 17 December 2009, see also paragraph 14 above). The Court has rejected that approach as being excessively formalistic because the absence of legislation on prisoners’ attendance at hearings cannot be interpreted as being sufficient grounds for depriving them of the right to appear (see Gryaznov v. Russia, no. 19673/03, § 50, 12 June 2012). Contrary to the Government’s claim that the applicant could have effectively presented his case to the courts because he had been duly informed of all the hearings, merely informing the applicant of the hearing date was insufficient in a situation where the current state of domestic law in reality prevented him from attending.

30. The Government also submitted that the nature of the legal disputes did not require the applicant’s personal presence at the appellate hearings, and invited the Court to examine whether or not the applicant’s presence was necessary in each case. However, the Court cannot substitute its own assessment for the decisions of the domestic courts, which have the advantage of possessing direct knowledge of the situation and are better placed to determine the nature of each claim and the underlying legal interests (see Lagardère v. France, no. 18851/07, § 42, 12 April 2012). In the present case the appeal courts did not verify whether the nature of the civil disputes required the applicant’s personal testimony and whether his attendance was essential to ensure the overall fairness of the proceedings. As it happened, the appeal courts denied the applicant the opportunity to attend the hearings, irrespective of the subject matter of the proceedings, and did not apprise him of that decision sufficiently in advance (see Gryaznov, cited above, § 48, and Khuzhin and Others v. Russia, no. 13470/02, § 107, 23 October 2008).

31. The Court lastly observes that the applicant’s effective participation in the appeal hearings could have been ensured by making procedural arrangements such as, for example, using video link facilities or conducting an off-site hearing (see Shilbergs, cited above, § 107, and Sokur v. Russia, no. 23243/03, § 36, 15 October 2009). The appeal courts did not consider those options at all, and embarked on hearing the cases on the merits without informing the applicant about possible ways to make up for his absence from the courtroom. As a result, the applicant was unable to decide on further course of action for the defence of his rights and was deprived of an opportunity to present his cases effectively before the appeal courts, in breach of Article 6 of the Convention.

32. Having regard to its previous case-law and the circumstances of the present case, the Court finds that by denying the applicant the opportunity to be present at the appeal hearings of 10 October 2007 and 10 February 2009 on the sole grounds of deficiencies in the domestic law, and by failing to consider appropriate procedural arrangements enabling the applicant to be heard, the domestic courts failed to meet their obligation to ensure respect for the principle of a fair trial enshrined in Article 6 of the Convention.

33. There has therefore been a violation of Article 6 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

34. The applicant also complained of the delayed enforcement of the final judgment of 20 October 2009. He relied on Article 6 § 1, cited above, and Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

35. 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

36. The Government did not deny that the delayed enforcement of the judgment of 20 October 2009 was incompatible with the Convention standards. The applicant maintained his complaint.

37. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in similar cases against Russia (see, among many other authorities, Poznakhirina v. Russia, no. 25964/02, 24 February 2005, and Burdov v. Russia, no. 59498/00, ECHR 2002-III). In the present case, the domestic authorities delayed paying the judgment debt for more than one year (see paragraph 11 above), which is prima facie incompatible with Convention requirements (see Gerasimov and Others v. Russia, nos. 29920/05, 3553/06, 18876/10, 61186/10, 21176/11, 36112/11, 36426/11, 40841/11, 45381/11, 55929/11 and 60822/11, § 169, 1 July 2014, and Kozodoyev and Others v. Russia, nos. 2701/04 et seq., § 11, 15 January 2009). It follows that by failing to comply with the enforceable judgment in the applicant’s favour the domestic authorities prevented the applicant from receiving the money which he was entitled to receive under the final and binding judgment.

38. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the delayed enforcement of the judgment of 20 October 2009.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

39. 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 competence, it 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 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

40. 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

41. The applicant claimed 70,000 euros (EUR) in respect of non-pecuniary damage.

42. The Government found that claim excessive.

43. The Court awards the applicant EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

44. The Court holds that when an applicant has suffered an infringement of his right to a fair hearing guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded. The most appropriate form of redress would, in principle, be the possibility for the applicant to request a reopening of the proceedings. In the recent case of Bochan v. Ukraine (no.2) (no. 22251/08, ECHR 2015), the Grand Chamber laid down the principles applicable to the reopening of terminated civil proceedings on the basis of a judgment by the Court (further case references - in brackets - omitted):

“57. ... the Court would reiterate that it is for the Contracting States to decide how best to implement the Court’s judgments without unduly upsetting the principles of res iudicata or legal certainty in civil litigation, in particular where such litigation concerns third parties with their own legitimate interests to be protected. Furthermore, even where a Contracting State provides for the possibility of requesting a reopening of terminated judicial proceedings on the basis of a judgment of the Court, it is for the domestic authorities to provide for a procedure to deal with such requests and to set out criteria for determining whether the requested reopening is called for in a particular case. There is no uniform approach among the Contracting States as to the possibility of seeking reopening of terminated civil proceedings following a finding of a violation by this Court or as to the modalities of implementation of existing reopening mechanisms ...

58. However, the foregoing considerations should not detract from the importance, for the effectiveness of the Convention system, of ensuring that domestic procedures are in place which allow a case to be revisited in the light of a finding that Article 6’s safeguards of a fair trial have been violated. On the contrary, such procedures may be regarded as an important aspect of the execution of its judgments as governed by Article 46 of the Convention and their availability demonstrates a Contracting State’s commitment to the Convention and to the Court’s case-law (...). The Court recalls in this connection Recommendation No. R (2000) 2 adopted by the Committee of Ministers, in which the States Parties to the Convention are called upon to ensure that there are adequate possibilities of reopening proceedings at domestic level where the Court has found a violation of the Convention (...). It reaffirms its view that such measures may represent the most efficient, if not the only, means of achieving restitutio in integrum (...).”

45. In this connection, the Court reiterates that in Russia a finding by the Court of a violation of the Convention or its Protocols is a ground for reopening civil proceedings, under Article 392 §§ 2 (2) and 4 (4) of the Code of Civil Procedure, and for reviewing the domestic judgments in the light of the Convention principles established by the Court (see Davydov v. Russia, no. 18967/07, §§ 10-15, 30 October 2014).

B. Costs and expenses

46. The applicant also claimed EUR 3,500 for the costs and expenses incurred in proceedings before the Court. In support of these claims he submitted a copy of a contract with his lawyer.

47. The Government stated that the applicant’s claim was not sufficiently detailed and should be dismissed.

48. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,700 for the proceedings before it, payable into the applicant’s representative’s bank account.

C. Default interest

49. 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 complaints concerning the applicant’s detention and right to compensation, his absence from two sets of civil proceedings to which he was a party and delayed enforcement of a final judgment 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 that there has been a violation of Article 5 § 5 of the Convention;

4. Holds that there has been a violation of Article 6 § 1 of the Convention;

5. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention;

6. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,700 (two thousand seven hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the bank account of the applicant’s representative;

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

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

Done in English, and notified in writing on 19 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helen Keller
Deputy Registrar President

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