KAVKAZSKIY AND OTHERS v. RUSSIA - 76201/17 (Judgment : Article 5 - Right to liberty and security : Third Section Committee) [2022] ECHR 26 (13 January 2022)

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You are here: BAILII >> Databases >> European Court of Human Rights >> KAVKAZSKIY AND OTHERS v. RUSSIA - 76201/17 (Judgment : Article 5 - Right to liberty and security : Third Section Committee) [2022] ECHR 26 (13 January 2022) URL: http://www.bailii.org/eu/cases/ECHR/2022/26.html Cite as: [2022] ECHR 26

In the case of Kavkazskiy and Others v. Russia,

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

          Peeter Roosma, President,
          Dmitry Dedov,
          Andreas Zünd, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 9 December 2021,

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

PROCEDURE

1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The Russian Government (“the Government”) were given notice of the applications.

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the unlawful detention (deprivation of liberty). Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

I. JOINDER OF THE APPLICATIONS

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

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 of the Convention

6. The applicants complained principally of the unlawful detention (deprivation of liberty). They relied, expressly or in substance, on Article 5 § 1 of the Convention, which reads as follows:

Article 5 § 1

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

...

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

7. In the leading cases of Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, 26 June 2018, Rozhkov v. Russia (no. 2), no. 38898/04,
§§ 91-96, 31 January 2017, Butkevich v. Russia, no. 5865/07, § 67, 13 February 2018, Kuptsov and Kuptsova v. Russia, no. 6110/03, § 81, 3 March 2011 and Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018, the Court already found a violation in respect of issues similar to those in the present case.

8. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the Government have not put forward any fact or argument capable of persuading the Court to reach a different conclusion in the present case, where the police arrested the applicants and detained them pending the preparation of the administrative offence file, while no evidence that it was impracticable to compile the offence record on the spot was provided. The Court finds that the escorting of the applicants to the police station and their ensuing detention did not comply with Russian law and were therefore not “lawful” within the meaning of Article 5 § 1.

9. These complaints are therefore admissible and disclose a breach of Article 5 § 1 of the Convention.

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

10. In some applications the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Karelin v. Russia (no. 926/08, §§ 60-84, 20 September 2016) and Frumkin v. Russia (no. 74568/12, § 168, 5 January 2016).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

11. 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.”

12. Regard being had to the documents in its possession and to its case‑law (see, in particular, Biryuchenko and Others v. Russia, [Committee], nos. 1253/04 and 2 others, § 96, 11 December 2014), the Court considers it reasonable to award the sums indicated in the appended table. It therefore dismisses the remainder of the applicants’ claims for just satisfaction.

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that these applications disclose a breach of Article 5 § 1 of the Convention concerning the unlawful detention (deprivation of liberty);

4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);

5. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

6. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Peeter Roosma

Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 5 § 1 of the Convention

(unlawful detention (deprivation of liberty))

No.	Application no. Date of introduction	Applicant’s name Year of birth	Representative’s name and location	Start date of unauthorised detention	End date of unauthorised detention	Specific defects	Other complaints under well-established case-law	Amount awarded for pecuniary and non-pecuniary damage per applicant (in euros)[1]
	76201/17 06/09/2017	Nikolay Yuryevich KAVKAZSKIY 1986	Glushkova Tatyana Sergeyevna Moscow	17/05/2015, 17:30	17/05/2015, 19:45	Detention as an administrative suspect: no evidence/assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO (see Butkevich v. Russia, no. 5865/07, §§ 63-64, 13 February 2018; Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018)		3,000
	2397/18 29/12/2017	Yevgeniy Dmitriyevich MIRONOV 1991	MEMORIAL Human Rights Centre Moscow	26/03/2017, 15:15	26/03/2017, 19:30	Applicant taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable, on the spot, to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019)	Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Domestic courts denied the applicant’s motion to ensure the participation of the prosecutor in the administrative proceedings, the prosecutor was absent (Karelin v. Russia, no. 926/08, 20 September 2016) Art. 6 (1) and Art. 6 (3) (d) - unfair trial in view of restrictions on the right to examine witnesses - Domestic court denied the applicant’s motion to examine the witness in his case, a police officer, on whose written statements his conviction was based. The applicant unsuccessfully challenged this decision on appeal	3,900
	3075/18 08/12/2017	Mikhail Aleksandrovich SMIRNOV 1996	Peredruk Aleksandr Dmitriyevich St Petersburg	12/06/2017, 15:30	13/06/2017, evening	Applicant taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable, on the spot, to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019)	Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Domestic courts denied the applicant’s motion to ensure the participation of the prosecutor in the administrative proceedings, the prosecutor was absent (Karelin v. Russia, no. 926/08, 20 September 2016)	3,900
	37542/18 02/08/2018	Sergey Mikhaylovich YAKOVLEV 1986	MEMORIAL Human Rights Centre Moscow	12/06/2017, 15:00	13/06/2017, 03:00	Applicant taken to the police station as an administrative suspect for the purpose of drawing up an offence record: no written record of the administrative escorting was drawn up (Art. 27.2 § 3 CAO) (see Timishev v. Russia [Committee], no. 47598/08, § 21, 28 November 2017)	Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Domestic courts denied the applicant’s motion to ensure the participation of the prosecutor in the administrative proceedings, the prosecutor was absent (Karelin v. Russia, no. 926/08, 20 September 2016)	3,900
	37545/18 02/08/2018	Maksim Igorevich CHUMAKOV 1981	MEMORIAL Human Rights Centre Moscow	12/06/2017, 15:15	12/06/2017, 20:30	Applicant taken to the police station as an administrative suspect for the purpose of drawing up an offence record: no written record of the administrative escorting was drawn up (Art. 27.2 § 3 CAO) (see Timishev v. Russia [Committee], no. 47598/08, § 21, 28 November 2017)	Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Domestic courts denied the applicant’s motion to ensure the participation of the prosecutor in the administrative proceedings, the prosecutor was absent (Karelin v. Russia, no. 926/08, 20 September 2016) Art. 6 (1) and Art. 6 (3) (d) - unfair trial in view of restrictions on the right to examine witnesses - Domestic court denied the applicant’s motion to examine the witness in his case, a police officer, on whose written statements his conviction was based. The applicant unsuccessfully challenged this decision on appeal	3,900
	43664/18 03/09/2018	Arsenijs LISTOVS 1990	MEMORIAL Human Rights Centre Moscow	12/06/2017, 16:42	12/06/2017, 23:20	Applicant taken to the police station as an administrative suspect for the purpose of drawing up an offence record: no written record of the administrative escorting was drawn up (Art. 27.2 § 3 CAO) (see Timishev v. Russia [Committee], no. 47598/08, § 21, 28 November 2017)	Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Domestic courts denied the applicant’s motion to ensure the participation of the prosecutor in the administrative proceedings, the prosecutor was absent (Karelin v. Russia, no. 926/08, 20 September 2016) Art. 6 (1) and Art. 6 (3) (d) - unfair trial in view of restrictions on the right to examine witnesses - Domestic court denied the applicant’s motion to examine the witness in his case, a police officer, on whose written statements his conviction was based. The applicant unsuccessfully challenged this decision on appeal	3,900
	43669/18 03/09/2018	Timur Marsovich ALMAYEV 1994	MEMORIAL Human Rights Centre Moscow	12/06/2017, 15:10	12/06/2017, 20:00	Applicant taken to the police station as an administrative suspect for the purpose of drawing up an offence record: no written record of the administrative escorting was drawn up (Art. 27.2 § 3 CAO) (see Timishev v. Russia [Committee], no. 47598/08, § 21, 28 November 2017)	Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Domestic courts denied the applicant’s motion to ensure the participation of the prosecutor in the administrative proceedings, the prosecutor was absent (Karelin v. Russia, no. 926/08, 20 September 2016). Art. 6 (1) and Art. 6 (3) (d) - unfair trial in view of restrictions on the right to examine witnesses - Domestic court denied the applicant’s motion to examine the witness in his case, a police officer, on whose written statements his conviction was based. The applicant unsuccessfully challenged this decision on appeal	3,900