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You are here: BAILII >> Databases >> European Court of Human Rights >> KASPAROV v. RUSSIA - 53659/07 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 849 (11 October 2016)
URL: http://www.bailii.org/eu/cases/ECHR/2016/849.html
Cite as: ECLI:CE:ECHR:2016:1011JUD005365907, [2016] ECHR 849, CE:ECHR:2016:1011JUD005365907
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    THIRD SECTION

     

     

     

     

     

     

     

     

    CASE OF KASPAROV v. RUSSIA

     

    (Application no. 53659/07)

     

     

     

     

     

     

    JUDGMENT

     

     

     

     

    STRASBOURG

     

     

    11 October 2016

     

     

     

    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 Kasparov v. Russia,

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

              Luis López Guerra, President,
              Helena Jäderblom,
              Helen Keller,
              Dmitry Dedov,
              Pere Pastor Vilanova,
              Alena Poláčková,
              Georgios A. Serghides, judges,
    and Stephen Phillips, Section Registrar,

    Having deliberated in private on 13 September 2016,

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

    PROCEDURE

    1.  The case originated in an application (no. 53659/07) 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 Garri Kimovich Kasparov (“the applicant”), on 14 November 2007.

    2.  The applicant was represented by Mr Y.A. Kostanov, a lawyer practising in Moscow. 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 alleged, in particular, that his detention at Sheremetyevo airport had been arbitrary and, since his detention prevented him from travelling to Samara to take part an opposition rally, it was also an unjustified interference with his freedom of expression and freedom of assembly.

    4.  On 21 October 2011 the application was communicated to the Government.

    THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

    A.  Introduction

    5.  The applicant was born in 1963 and lives in Moscow.

    6.  An EU-Russia summit was scheduled for 17 and 18 May 2007 to take place in Samara. On 18 May 2007 the applicant was travelling to Samara to take part in the opposition rally “March of Dissent” which had been organised to coincide with the summit. He was accompanied by several activists who were also travelling to the rally. At 8.30 a.m. the applicant and his fellow activists arrived at Terminal 1 of Sheremetyevo airport, Moscow, and attempted to check in for a flight to Samara (flight no. SU0697). The parties have submitted different versions of events as to what then happened. Each version is set out below.

    B.  The applicant’s version of events

    7.   The applicant submits that, when he presented his passport for identity check, police officer A. seized the passport and the ticket. The applicant was required to leave the check-in area and to follow officer A. He was taken to a police office on the second floor of the airport. Five other persons from his group were escorted from the check-in hall in the same manner.

    8.  At 11.20 a.m. the applicant and the five others were ordered to remain on the second floor of the airport and were informed that they would have to be questioned as to how they had purchased their allegedly forged tickets.

    9.  At 12.20 p.m. the operative duty police officer from Department of the Interior (Criminal Division), Captain N., questioned the applicant as to where he had bought his ticket. The applicant replied that his ticket had been purchased lawfully and refused to give any further explanation, relying on his constitutional right to remain silent. He maintains that he was under orders not to leave and that he was prevented from leaving the police office by an armed policeman who was guarding the doorway. The applicant remained at the police station until 1.30 p.m.

    10.  The applicant has submitted three documents in support of his version of events.

    11.  The first is a copy of the record (протокол) of search and confiscation completed by Captain N. It records that the applicant was searched and his aeroplane ticket confiscated, in accordance with Articles 21.1, 27.7 and 27.10 of the Code of Administrative Offences (see relevant domestic law at paragraphs 25 and 26 below). At the bottom of the record, the applicant has written that it had been explained to him that the search and seizure could be appealed to a higher authority and that, while the record had been handed to him at 1 p.m., the actual seizure of the ticket by officer A. had taken place at 8.30 a.m. at the check-in desk.

    12.  The second is a pro forma statement (объяснение), filled in by Captain N. In it, he records that he began filling out the statement at 12.40 p.m. and finished at 12.50 p.m., and that, when asked, the applicant refused to given an explanation for the ticket. On the statement the applicant has written that the ticket was obtained legally and that, relying on Article 51 of the Constitution (the right against self-incrimination) he refused to give any further explanation because he had been detained illegally in the departure hall without explanation. He has also written that, from 8.30 a.m. until 12.50 p.m., he had been deprived of his freedom of movement, and that no documents had been provided to him until then.

    13.  The third is a handwritten declaration made by the applicant and five others while at the airport. It reads:

    “We, the undersigned, state that today, 18 May 2007, at Sheremetyevo Airport [terminal] 1 we were prevented from taking flight 813 to Samara because [officer A.] seized our tickets at the check-in desk.

    At present we are at the airport building under the surveillance of the police officers, with our passports confiscated.

    At 11.20 police officers [A.], [C.] and [S.] categorically prohibited us to leave the second floor of the airport.

    At the same time, they indicated that we have to provide an explanation to the police officers because some tickets were allegedly forged.

    As of 12.20 we are still detained in the hall of the airport without any documents being provided to us.

    (signed)”

    C.  The respondent Government’s version of events

    14.  The Government submitted that, on 17 May 2007, the Department of the Interior’s Sheremetyevo airport branch received information on forged tickets being sold for the 18 May Moscow-Samara flight. On 18 May 2007, officers from the branch, acting on that information, were present at check-in and examined the tickets of all passengers on the flight. In the course of their checks, twenty tickets bearing signs of forgery were found: they had worn spots and the forms on which the tickets were printed appear dubious. Those tickets were confiscated and the passengers who had presented them were prevented from boarding. The tickets were subsequently sent for forensic examination, which showed thirteen tickets with signs of writing on top of the original text.

    15.  As regards the applicant’s allegations, the Government commented that their records indicated that his ticket for the flight had been seized but there was no record of his passport also being seized. If it had been, the applicant would have been able to make a written comment to that effect in the search record which had been drawn up by the police, but he had not done so. Under section 11 of the Police Act (see paragraph 24 below) the police had the right to seek an explanation from the applicant regarding the ticket, and he had been invited to provide one. The applicant’s allegation that he was questioned from 8.30 a.m. to 1.30 p.m. was not supported by the police records.

    D.  The applicant’s complaint to the prosecutor and subsequent court proceedings

    16.  The applicant complained to the Moscow Transport Prosecutor’s Office about having been unlawfully detained by the police and requested that those responsible be prosecuted.

    17.  On 28 June 2007 the prosecutor’s office decided not to open criminal proceedings against the policemen. The decision stated, in so far as relevant, as follows:

    “... on 18 May 2007 the [police] together with the Sheremetyevo airport security service carried out a check of the passengers leaving on the flight no. 813, Moscow - Samara. During the check [they] discovered thirteen plane tickets with traces of forgery, which were seized. Later [the police] conducted an inquiry under Articles 144-145 of the Code of Criminal Procedure.

    When questioned, [officer A.] stated that on 17 May 2007 at 6 p.m. he received operative information that some forged tickets had been sold for the Moscow-Samara flight leaving on 18 May 2007 [...]

    On 18 May 2007 he verified this information by checking all passengers’ tickets [...] for that flight.

    ...Thirteen plane tickets were found to have traces of forgery, such as scuff marks, and also the ticket blanks used for printing the tickets were suspicious.

    [The police] seized the tickets and removed the passengers from the flight. [A.] wrote a report concerning these facts ... after that, the materials were sent to the [Sheremetyevo police unit].

    When questioned, the Head of the Operational-Search Unit of the Aviation Division of the Department of the Interior, [S.], stated that, on 18 May 2007, on the occasion of the high-profile summit in Samara the policemen of the Aviation Division of the Moscow branch of the Department of the Interior, together with its subordinate units in the airports of the Moscow region, carried out operational search activities to identify persons of an extremist nature intending to organise mass riots.

    In this connection, the police carried out checks on persons leaving for Samara. On 18 May 2007 [S.], together with [the operative officer A.B.] arrived at the Sheremetyevo airport, where, at 7.30 a.m., check-in began for flight no.813 Moscow - Samara. Together with the [airport security screening service] they checked all passengers, which included screening their luggage with special equipment and checking their documents. During the check some [officers] noticed that tickets of certain passengers had additional non-standard notes, and, when inspected, these tickets raised doubts as to their authenticity. Because of that, thirteen suspected forged tickets were seized and the passengers were questioned about the circumstances of their purchase. Moreover, several passengers decided not to fly, without explaining why. On the same day similar checks were conducted for other flights to Samara.

    ...

    The [sales director of the airline] confirmed that the tickets were issued and sold [in a normal manner].

    ...

    An expert examination of the twenty seized tickets ... revealed that seven tickets had no corrections of the original content. For thirteen of the tickets, the examination revealed that secondary text had been added on top of the original text in the fields ‘flight number’ and ‘time’.

    Therefore, the inquiry has established that [the policemen] had acted within their powers and with sufficient grounds when seizing the tickets of the passengers for flight no.813 Moscow - Samara.

    ...

    Held:

    1.  To refuse the institution of criminal proceedings further to the complaint about the commission of criminal offences of [abuse of powers] and [exceeding official powers] by the [eleven policemen involved] for absence of corpus delicti.”

    18.  The applicant challenged this decision before a court under the procedure set out in Article 125 of the Code of Criminal Procedure. He requested that the decision dispensing with criminal proceedings be declared unlawful and that the prosecutor’s office be ordered to remedy the shortcomings in it.

    19.  On 20 July 2007 the Golovinskiy District Court of Moscow examined and rejected the applicant’s appeal. It noted that the applicant had complained to the prosecutor’s office about his five-hour detention and about the seizure of his ticket to Samara. It also observed that the applicant had challenged the prosecutor’s refusal to open criminal proceedings claiming, inter alia, that the police had unlawfully restricted his liberty and in violation of his right to freedom of expression and to freedom of assembly. It also noted that the applicant had claimed that he had been deprived of his constitutional rights by the prosecutor’s office.

    20.  The court considered that the prosecutor’s office had taken its decision in accordance with the procedure provided for by law and remained within its competence while doing so. It upheld the finding that no criminal offence could be imputed to the police officers in question. The court found the applicant’s allegations about the unlawfulness of the ticket seizure to be unsubstantiated, finding that the seizure had been carried out in accordance with Articles 27.7 and 27.10 of the Code of Administrative Offences (see paragraph 26 below). The court further found that the applicant had been taken to the airport police quarters to provide an explanation for the purchase of his ticket. He had not been “isolated” at the police station. Therefore, there had been no grounds for applying the three-hour time-limit for the application of preventative measures in administrative offences cases (as provided for by the Code of Administrative Offences), or for the drawing up of a detention report (протокол о задержании).

    21.  The court concluded that the prosecutor’s decision was lawful and well-founded.

    22.  The applicant brought a cassation appeal against that decision. He claimed that the measures applied to him were contrary to the Code of Administrative Offences, and that there had been violations of his constitutional rights to liberty, freedom of expression and freedom of assembly.

    23.  On 20 August 2007 the Moscow City Court examined and dismissed the applicant’s appeal. It noted that the subject matter of the applicant’s appeal to court had been the lawfulness of the prosecutor’s refusal to institute criminal proceedings against the officers who had allegedly violated his constitutional rights. It upheld the decision not to institute criminal proceedings as correct in substance and form. It further held that the alleged breach by the police offices of statutory detention limits were outside the scope of the first-instance court’s [power of] review.

    II.  RELEVANT DOMESTIC LAW AND PRACTICE

    24.  Section 11(4) of the Police Act (no. 1026-1 of 18 April 1991) (as in force at the material time), provided that, for the performance of their duties, the police had the right to obtain from citizens and State officials necessary statements, information, certificates, documents and copies thereof.

    25.  Article 21.1 of the Code of Administrative Offences of 30 December 2001, provides for liability of designated officials for a failure to submit information on persons to be drafted in the armed forces, to the relevant military authority.

    26.  Article 27.7 of the Code allows to conduct personal searches and to search the luggage carried by a person if it is necessary to find an object or an instrument of an administrative offence. It defines the search procedure and sets out the requirements of the search report. Article 27.10 states that the objects and the instruments of an administrative offence, as well as documents that may serve as evidence in the proceedings concerning an administrative offence, may be seized in accordance with the specified procedure.

    27.  Article 125 of the Code of Criminal Procedure of the Russian Federation, which entered into force on 1 July 2002, provides that any decisions and actions (or failures to act) by investigators, investigating judges or prosecutors with regard to a criminal investigation may be challenged before a superior prosecutor or a court.

    THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

    28.  The applicant complained that his arrest and detention at Sheremetyevo airport had been unlawful. He relied on Article 5 § 1 of the Convention, which provides:

    “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)  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.”

    29.  The Government argued that Article 5 § 1 of the Convention did not apply because there had been no deprivation of liberty.

    A.  Admissibility

    30.  The Court considers that the question whether the applicant was deprived of his liberty, and therefore whether Article 5 § 1 of the Convention applies, is closely linked to the merits of the applicant’s complaint. It therefore joins this preliminary issue to the merits (Austin and Others v. the United Kingdom [GC], v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 50, ECHR 2012). It finds that the case is not inadmissible on any other grounds and it therefore declares it admissible.

    B.  Merits

    1.  The parties’ submissions

    (a)  The Government

    31.  The Government relied on the version of events set out at paragraphs 14-15 above. They submitted that there was nothing in their records to show that the applicant had been deprived of his liberty. He had been invited to provide an explanation for the tickets, but he had not been detained. He was not isolated and could leave at any time. He had not, therefore, been arrested under administrative law or criminal law procedures. The applicant had provided no evidence to the contrary, either before the domestic courts or before this Court. Thus, there had been no violation of Article 5 § 1 of the Convention.

    (b)  The applicant

    32.  The applicant relied on the version of events set out at paragraphs 7-9. He observed that the Government had not alleged that his ticket was among those found to have borne signs of forgery. Indeed, though forgery or use of false documents was, depending on the circumstances, a criminal or administrative offence, neither the applicant nor any of the other people who planned to travel with him to Samara were charged with any offence. The provisions of the Code of Administrative Offences which the police had relied on, Article 21.1 (see paragraph 25 above) had nothing to do with forged documents and plainly only applied to military personnel and eligible conscripts.

    33.  As to the merits of his complaint, the applicant submitted that he had been “deprived of his liberty” within the meaning of Article 5 of the Convention. Although he had not been placed in a locked room, this did not mean he was not detained. The police had prevented him from checking in for Samara flight. His ticket and passport were seized and he was then taken against his will to a room belonging to the Department of Internal Affairs. There, the police attempted to elicit an explanation from him on how he had purchased his ticket. His passport was returned to him only after his ticket had been confiscated and a report on the case drawn up. The Government’s submission that they had no information on how long he was in the room could be explained by their failure properly to record the detention. However, the failure to keep such a record could not be used to deny that he had been detained or that the detention had been baseless and arbitrary.

    2.  The Court’s assessment

    34.  The Court notes that the facts of the case are in dispute and, as result, the parties differ as to whether the applicant was deprived of his liberty. For that reason, in examining the applicant’s Article 5 § 1 of the Convention complaint, it is necessary for the Court to consider two issues: firstly, whether, on the facts of the case, the applicant was deprived of his liberty; and secondly, if so, whether that deprivation of liberty was compatible with Article 5 § 1 of the Convention.

    (a)  Was the applicant deprived of his liberty?

    (i)  The standard and burden of proof

    35.  When the parties not only disagree as to whether there has been a deprivation of liberty but also as to the underlying facts upon which the Court should determine that question, the Court has applied the approach set out by the Grand Chamber in Creangă v. Romania [GC], no. 29226/03, §§ 88-90, 23 February 2012. That approach requires the applicant to provide prima facie concordant evidence capable of showing that he was indeed under the exclusive control of the authorities on the day of the events, that is to say, that he was officially summoned by the authorities and entered premises which were under their control. If that condition is satisfied, the Court will be able to consider that he was not free to leave, particularly when investigative measures were under way. It could therefore require the Government to provide a detailed hour-by-hour report on what happened in the premises in question and to account for the time spent there by the applicant. The Government would then have to provide satisfactory and convincing written evidence to support their version of the facts. Failure to provide such evidence would enable conclusions to be drawn as to the merits of the applicant’s allegations (see Creangă, cited above, § 90).

    (ii)  Deprivation of liberty

    36.  In assessing whether someone has been “deprived of his liberty” within the meaning of Article 5 of the Convention, the relevant principles are as follows:

    (i)  The starting-point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see, among many authorities, Creangă, cited above, § 91; Austin and Others cited above, § 57). The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see Nada v. Switzerland [GC], no. 10593/08, § 225, ECHR 2012).

    (ii)  The requirement to take account of the “type” and “manner of implementation” of the measure in question enables the Court to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell. Indeed, the context in which the measure is taken is an important factor, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see, Nada, cited above, § 226; and Gahramanov v. Azerbaijan (dec.), no. 26291/06, § 40, 15 October 2013).

    (iii)  It is often necessary to look beyond the appearances and the language used and concentrate on the realities of the situation. The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court’s conclusion as to the existence of a deprivation of liberty (see Creangă, cited above, § 92; see also Dzhabarov and Others v. Bulgaria, nos. 6095/11, 74091/11 and 75583/11, § 66, 31 March 2016).

    (iv)  The right to liberty is too important in a “democratic society”, within the meaning of the Convention, for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention may violate Article 5 of the Convention even though the person concerned has agreed to it (see Venskutė v. Lithuania, no. 10645/08, § 72, 11 December 2012 with further references therein). For the same reason, if person initially attends a place of detention such as a police station of his own free will (see Osypenko v. Ukraine, no. 4634/04, § 49, 9 November 2010) or agrees to go with the police for questioning (see Lykova v. Russia, no. 68736/11, § 78, 22 December 2015), this is not in itself determinative of whether that person has been deprived of his liberty.

    (v)  The Court will also examine the degree of coercion involved. If, upon an examination of the facts of the case, it is unrealistic to assume that the applicant was free to leave, this will normally indicate that there has been a deprivation of liberty (see, as examples, Hoalgă and Others v. Romania, no. 76672/12, § 102, 15 March 2016, with further references therein; and Venskutė, cited above, § 73). This may be the case even when there is no direct physical restraint of the applicant, such as by handcuffing or placement in a locked cell (see, for instance, Popoviciu v. Romania, no. 52942/09, § 59, 1 March 2016; Lazariu v. Romania, no. 31973/03, § 100, 13 November 2014; Iustin Robertino Micu v. Romania, no. 41040/11, § 89, 13 January 2015; Valerian Dragomir v. Romania, no. 51012/11, § 70, 16 September 2014; Ghiurău v. Romania, no. 55421/10, § 80, 20 November 2012; Krupko and Others v. Russia, no. 26587/07, § 36, 26 June 2014, with further references therein; M.A. v. Cyprus, no. 41872/10, § 193, ECHR 2013 (extracts)).

    (vi)  Article 5 § 1 of the Convention may apply even to deprivations of liberty of a very short length (see Creangă, cited above, § 93; Shimovolos v. Russia, no. 30194/09, § 49, 21 June 2011, with further references therein; and Foka v. Turkey, no. 28940/95, §§ 73-79, 24 June 2008).

    (iii)  The applicant’s case

    37.  Applying the above principles to the applicant’s case means that, in the first instance, it is for the applicant to provide prima facie concordant evidence that he was under the exclusive control of the authorities on the day of the events.

    38.  In assessing whether the applicant has done so, the Court notes that the Government have not denied the core of his account: they have not denied that, when the applicant and the other members of his group were checking in for the Samara flight, police officer A. intervened, seized the applicant’s ticket, and required the applicant and the rest of the group to leave the check-in hall with him. Nor do the Government deny that police then questioned the applicant in their offices at the airport. While they assert that the applicant was not isolated and was free to leave at any time, they do not deny the presence of an armed guard in the doorway of the office. Indeed, the only facts they expressly deny are that the applicant’s passport was seized and that the process of questioning the applicant lasted until 1.30 p.m.

    39.  The applicant’s version of events is inherently credible. The three documents the applicant has submitted corroborate that version of events. As contemporary records, they are compelling evidence of what actually happened at Sheremetyevo airport that day. They are particularly strong corroborative evidence because the applicant was meticulous in recording the relevant times on all three documents: the note he made on the search record that states that his ticket was seized at 8.30 a.m.; on the statement he noted that had been detained illegally since that time, and on the handwritten declaration he and his five companions made that, at 11.20 a.m., the police officers categorically forbade them from leaving the second floor of the airport. In all three cases he recorded the time he made these notes (1.00 p.m. on the search record, 12.50 p.m. on the written pro forma statement and 12.20 p.m. on the handwritten declaration). It is plain from those notes that he considered himself detained: he expressly stated that on the pro forma statement and in the handwritten declaration. Finally, the handwritten declaration records that it was not only the group’s tickets which were seized but their passports too.

    40.  For these reasons, at the very least the applicant’s version of events provides credible prima facie evidence that, from the moment he left check-in with the police until his release at around 1.30 p.m., he was under their exclusive control.

    41.  This is, therefore a case where, consistent with the Creangă judgment, the burden of proof must shift to the Government, and where it is proper to require them to provide a detailed hour-by-hour report on what happened at the police station at the airport and to account for the time spent there by the applicant. Accordingly, it is incumbent upon the Government to provide satisfactory and convincing written evidence to support their version of the facts (see paragraph 35 above).

    42.  The Government have produced no written evidence whatsoever to support their version of events. For instance, despite maintaining that the action taken against the applicant was part of a broader operation into alleged forged tickets in which twenty-two people had their tickets confiscated (five of whom were travelling with the applicant), they have failed to produce even the names of the twenty passengers whose tickets were confiscated or a copy of the forensic report which concluded that thirteen of the twenty tickets bore signs of forgery (see paragraph 14 above). Nor have they provided copies of the search records or pro forma statements which might have been prepared in respect of the other members of the applicant’s group. Also absent is any evidence from the police officers at the Sheremetyevo airport that day, who would have been to confirm or deny whether applicant’s passport was seized and whether the process of questioning the applicant lasted until 1.30 p.m. (the only two points expressly disputed by the Government).

    43.  In applying the approach set out in the Creangă case the Court has consistently drawn adverse inferences from the Government’s failure to produce records (see Zalyan and Others v. Armenia, nos. 36894/04 and 3521/07, § 304, 17 March 2016; Lykova v. Russia, cited above, § 77; Stelian Roşca v. Romania, no. 5543/06, § 61, 4 June 2013; Baisuev and Anzorov v. Georgia, no. 39804/04, § 52, 18 December 2012; see also, for the converse situation, where the respondent Government produced records, and where their version of events was thus accepted by the Court, Miķelsons v. Latvia, no. 46413/10, § 58,  November 2015 and Čamans and Timofejeva v. Latvia, no. 42906/12, § 119, 28 April 2016).

    44.  This case is no different. Accordingly, in the absence of any written evidence from the Government to rebut the applicant’s version of events, the Court accepts what he has said. As for the two points of the applicant’s account which the Government expressly deny, the seizure of the passport and the duration of the questioning, the Court finds the applicant’s account more credible. For the former, it is a reasonable inference that, if the applicant’s ticket was seized, the police would also seize his passport, even if only to compare the information on the passport with the passenger information on the ticket. For the latter, when the Government have failed to produce any records, or even to state at what time they say the questioning ended if not 1.30 p.m., the Court sees no reason to disbelieve the applicant.

    45.  In summary, therefore, the Court accepts that, when he attempted to check-in at 8.30 a.m., the applicant was asked to follow a police officer from the check-in hall; he was taken to a separate room at the airport; his ticket and passport were seized; he remained in that room, while being questioned and searched, until 1.30 p.m.; and during that time, an armed guard standing in the doorway prevented him from leaving. It follows that he was under the control of the police from 8.30 a.m. to 1.30 p.m.

    46.  On the basis of these facts, the Court considers that the applicant was deprived of his liberty within the meaning of Article 5 of the Convention. The following four factors are decisive. First, the applicant had little choice but to follow the police officer from the check-in hall; if he had refused, he would have been disobeying an ostensibly lawful order of the police (see, mutatis mutandis, Lykova, cited above, § 78). Second, although not physically restrained, he was clearly unable to leave the room in which he was questioned: the armed guard in the doorway prevented that (see the cases cited at paragraph 36(v) above and, in particular, Iustin Robertino Micu, § 89). Third, it is no answer that, as the Government have argued, the applicant was not detained because he was not arrested: as reiterated at paragraph 36(iii) above, the characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court’s conclusion as to the existence of a deprivation of liberty. Fourth, give its nature, the applicant’s detention of liberty must be distinguished from the Gahramanov case, where the stopping of the applicant at an airport during a routine border control to clarify his situation was found not to be deprivation of liberty, particular when his detention did not exceed the time strictly necessary for that purpose (see §§ 41-47 of the judgment, cited above). In Mr Kasparov’s case, the police went beyond simply clarifying the situation relating to his tickets and purportedly began investigating the crime of forgery, by questioning him, searching him and drawing up a report. Their detention of him thus went far beyond the time strictly necessary for verifying the formalities normally associated with airport travel. Therefore, in contrast to the Gahramanov case, this was not the normal situation that anyone travelling through an airport can be expected to endure in the common good.

    47.  For the above reasons, the Court finds that the applicant was deprived of his liberty.

    (b)  Was the applicant’s deprivation of liberty compatible with Article 5 § 1 of the Convention?

    48.  It is therefore necessary to consider whether that deprivation of liberty complied with Article 5 § 1 of the Convention.

    49.  The list of exceptions to the right to liberty secured in Article 5 § 1 of the Convention 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, as a recent authority, Shimovolos, cited above, § 51).

    50.  The applicant’s deprivation of liberty clearly did not fall under sub-paragraphs (a), (d), (e) or (f) of paragraph 1 of Article 5 of the Convention. Nor could it be said to fall under sub-paragraph (b): there was no evidence of non-compliance with a lawful order of a court and the applicant’s detention could not have been to secure the fulfilment of an obligation prescribed by law because, at the time his arrest, there was no unfulfilled obligation on the applicant (see Vasileva v. Denmark, no. 52792/99, § 36, 25 September 2003).

    51.  The only remaining ground is sub-paragraph (c): lawful arrest or detention for the purpose of bringing the applicant before the competent legal authority on reasonable suspicion of having committed an offence or when it reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

    52.  The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspect of having committed the alleged offence (ibid., at § 34).

    53.  As the Court has already noted (see paragraph 42 above), the Government have produced no written evidence whatsoever to support their version of events. They have, for instance, failed to produce a copy of the forensic report which purported to find traces of forgery on the tickets the police officers seized. There is, therefore, no evidence capable of satisfying the Court that any forgery had been committed at all, still less that the applicant was reasonably suspected of having participated in it.

    54.  Indeed, the Government’s submission that this was the reason the applicant was stopped for questioning is significantly undermined by the contradictory evidence given in the domestic proceedings. The prosecutor’s decision of 28 June 2007 not to open proceedings first records the evidence of officer A., who stated that he received intelligence about forged tickets on the eve of the applicant’s flight. However, the prosecutor’s decision then goes on to record the evidence given by the Head of the Operational-Search Unit of the Aviation Division of the Ministry of the Interior, whose evidence was that, on the occasion of the EU-Russia summit in Samara, the police carried out activities “to identify persons of an extremist nature” and that it was only in the context of those activities that the supposedly forged tickets were then discovered (see paragraph 17 above). In their submissions to the Court, the Government have not sought to explain this contradiction between the evidence of officer A. and the evidence of the Head of the Operational-Search Unit. In any event, in respect of officer A., the Court has already noted that there is no evidence to support the allegations of forgery. Moreover, even if the Court were to accept the evidence of the Head of the Operational-Search Unit rather that than of officer A., the Court has already found that the detention of those travelling to the Samara summit on the basis of a vague reference to “offences of an extremist nature” was insufficient for the purposes of Article 5 § 1(c): Shimovolos, cited above, §§ 55 and 56. If it was insufficient in Shimovolos, it is insufficient in this case. For this reason, and for the reasons given in paragraph 53 above, the Court concludes that the applicant was not arrested and detained on reasonable suspicion of having committed an offence nor to prevent their committing an offence, within the meaning of Article 5 § 1 (c).

    55.  In any event, the Court notes that the authorities have not officially acknowledged the applicant’s deprivation of liberty and have not complied with the formalities required for a person’s detention. It reiterates that unrecorded deprivation of liberty, in the absence of any plausible explanation by the Government for this, is in itself sufficient to find a violation of Article 5 § 1 (for instance Menesheva v. Russia, no. 59261/00, §§ 87-98, ECHR 2006-III; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 237, ECHR 2012; Gavula v. Ukraine, no. 52652/07, §§ 82-85, 16 May 2013; and Oleynik v. Russia, no. 23559/07, §§ 38-39, 21 June 2016).

    56.  It follows that the applicant’s arrest and detention did not have any legitimate purpose under Article 5 § 1. They were therefore not lawful within the meaning of Article 5 § 1 (c) and there has therefore been a violation of that Article.

    II.  ALLEGED VIOLATIONS OF ARTICLE 5 §§ 2 AND 4 OF THE CONVENTION

    57.  The applicant also complained that he was not informed promptly of the reasons for his arrest and of any charge against him, contrary to Article 5 § 2 of the Convention, and that he was unable to take proceedings to challenge the lawfulness of his detention, contrary to Article 5 § 4 of the Convention.

    58.  The Government contested those arguments.

    59.  The Court notes that these complaints are linked to the Article 5 § 1 complaint examined above and must therefore likewise be declared admissible. However, having regard to its finding on Article 5 § 1 (see paragraph 56 above), the Court considers that it is not necessary to examine these complaints.

    III.  ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF THE CONVENTION

    60.  The applicant further complained that his arrest and detention on 18 May 2007 prevented him from taking part in the “March of Dissent” opposition rally in Samara that day. He complained that this violated his rights to freedom of expression and freedom of peaceful assembly guaranteed by Articles 10 and 11 of the Convention, which read as follows:

    Article 10

    “1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

    2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

    Article 11

    “1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

    2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

    61.  The Government contested that argument.

    A.  Admissibility

    62.  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

    1.  The parties’ submissions

    (a)  The Government

    63.  The Government submitted that the investigation at the airport did not seek to interfere with the applicant’s rights under Articles 10 and 11 of the Convention. The police’s actions had been aimed exclusively at ensuring the security of air travel by preventing travel by people who had no legal right to travel (that is, those intending to travel on forged tickets).

    (b)  The applicant

    64.  The applicant submitted that there had been no proper legal basis for his arrest and detention, nor for the seizure of his aeroplane ticket.

    2.  The Court’s assessment

    65. The applicant invokes two separate Convention provisions: Article 10 and Article 11 of the Convention. In the Court’s opinion, in the circumstances of the present case, Article 10 of the Convention is to be regarded as a lex generalis in relation to Article 11, which is a lex specialis. The thrust of the applicant’s complaint is that he was prevented from attending a peaceful assembly, the March of Dissent in Samara. The Court therefore finds that the applicant’s complaint should be examined under Article 11 of the Convention alone. At the same time, notwithstanding its autonomous role and particular sphere of application, Article 11 of the Convention must also be considered in the light of Article 10, where the aim of the exercise of freedom of assembly is the expression of personal opinions as well as the need to secure a forum for public debate and the open expression of protest (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, §§ 85 and 86, ECHR 2015).

    66.  A refusal to allow an individual to travel for the purpose of attending a meeting amounts to an interference with individual’s freedom of assembly (see Kudrevičius, cited above, § 100; Kasparov and Others v. Russia, no. 21613/07, § 84, 3 October 2013; and Huseynli and Others v. Azerbaijan, nos. 67360/11, 67964/11 and 69379/11, §§ 84-97, 11 February 2016).

    67.  The applicant wanted to fly from Sheremetyevo airport to Samara to participate in the March of Dissent scheduled for the same day. The Government do not dispute that this was the purpose of his flight. Nor is there any doubt that participation in such a rally would have been an exercise of the applicant’s right to freedom of peaceful assembly. The applicant’s arrest and detention, and the seizure of his passport and ticket made it impossible for him to fly that day. Having been denied access to the Samara flight, at such short notice, there would have been no other way for him to make it to Samara in time for the rally. The applicant’s arrest and detention prevented him from attending the rally. There has, therefore, been an interference with his right to freedom of assembly.

    68.  Such an interference gives rise to a breach of Article 11 unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to attain them.

    69.  The Court has already found that the applicant’s arrest and detention were not “lawful” within the meaning of Article 5 § 1 (c). Since the requirement under Article 11 § 2 that an interference with the exercise of freedom of assembly be “prescribed by law” is similar to that under Article 5 § 1 that any deprivation of liberty be “lawful”, it follows that the applicant’s arrest and detention were not “prescribed by law” under Article 11 § 2 (see, for a similar approach under Article 10 of the Convention, Kandzhov v. Bulgaria, no. 68294/01, § 72, 6 November 2008, with further references therein). The conclusion that the inference was not “prescribed by law” makes it unnecessary to consider whether the interference pursued a legitimate aim and was “necessary in a democratic society” (see, as recent authority, Huseynli and Others, cited above, § 100). There has therefore been a violation of Article 11 of the Convention.

    IV.  ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

    70.  The applicant complained that his arrest and detention had pursued the aim of undermining his right to freedom of assembly and freedom of expression. He relied on Article 18 of the Convention, which reads as follows:

    “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

    71.  In their submissions under this head the parties relied on the submissions they had made under Articles 5 and 11 of the Convention.

    72.  The Court notes that this complaint is linked to the Articles 5 and 11 complaints examined above and must therefore likewise be declared admissible.

    73.  The Court has found that the applicant had been arrested and detained arbitrarily and unlawfully and that this prevented him from participating in an opposition rally (see paragraphs 56 and 69 above).

    74.  In the light of the above, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 18 of the Convention (see Nemtsov v. Russia, no. 1774/11, §§ 129 and 130, 31 July 2014; Navalnyy and Yashin v. Russia, no. 76204/11, § 116-17, 4 December 2014, and Frumkin v. Russia, no. 74568/12, §§ 172-73, ECHR 2016 (extracts)).

    V.  ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION

    75.  Lastly, the applicant complained that there had been a violation of his right to liberty of movement guaranteed by Article 2 of Protocol No. 4 to the Convention. The Court considers that, although this complaint is admissible, given its finding in respect of Article 5 § 1 of the Convention (see paragraph 56 above), it is not necessary to examine this complaint (see Assanidze v. Georgia [GC], no. 71503/01, § 194, ECHR 2004-II; Bozano v. France, 18 December 1986, § 63, Series A no. 111).

    VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

    76.  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.”

    77.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

    FOR THESE REASONS, THE COURT

    1.  Joins to the merits the Government’s objection as to applicability of Article 5 and rejects it;

     

    2.  Declares, unanimously, the application admissible;

     

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

     

    4.  Holds, unanimously, that there has been a violation of Article 11 of the Convention;

     

    5.  Holds, by six votes to one, that there is no need to examine the complaint under Article 18 of the Convention;

     

    6.  Holds, unanimously, that there is no need to examine the remainder of the complaints.

    Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

      Stephen Phillips                                                                 Luis López Guerra
           Registrar                                                                              President

    In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Keller is annexed to this judgment.

    L.L.G.
    J.S.P.

    PARTLY DISSENTING OPINION OF JUDGE KELLER

    1.  I voted with the majority concerning the violation of Articles 5 § 1 and 11 of the Convention found in the present judgment, but I must respectfully disagree with my colleagues regarding their conclusion under Article 18 of the Convention that there is no need to examine the relevant complaint (see paragraph 74 of the majority judgment).

    2.  In my opinion, there can be no doubt about the fact that this case raises a separate issue under Article 18. In fact, the circumstances before the Court here represent a paradigmatic example of such an issue. Article 18 was drafted in order to allow the Court to address improper limitations of Convention rights by the domestic authorities, including restrictions of rights that are allegedly applied for legitimate reasons but that in fact aim to silence dissidents (see Rasul Jafarov v. Azerbaijan, no. 69981/14, §§ 125 and 156, 17 March 2016). While I agree with my colleagues that the applicant has suffered a violation of his rights under Article 5 § 1 of the Convention, as he was unlawfully deprived of his liberty, and of Article 11 of the Convention, as that deprivation of liberty prevented him from exercising his right to freedom of assembly, these findings do not suffice to address the fact that the State instrumentalised the law in order to target and silence a dissident, a circumstance which falls squarely within the ambit of Article 18.

    3.  While Article 18 is, by virtue of its text, an accessory provision (see Gusinskiy v. Russia, no. 70276/01, § 73, ECHR 2004-IV), this cannot be taken to mean that the provision need not be examined where the Court has found a violation of the right or freedom in connection with which it is invoked. Like Article 14 of the Convention, another accessory provision, Article 18 must be understood as protecting a legal interest separate from that protected by the other rights and freedoms enshrined in the Convention. Preventing improper limitations of rights as a legal interest is separate from and additional to protecting those rights themselves, in the same way as preventing discriminatory limitations of rights as a legal interest is separate from and additional to protecting those rights themselves. Any other conclusion would deprive Article 18 of a reasonable scope of application[1].

    4.  Indeed, Article 18 is intended to allow the Court to address a specific injustice, namely the undermining of Convention rights whereby legitimate justifications are improperly invoked as a pretext in order to conceal an ulterior motive. The drafters of the Convention knew that State intervention in the sphere of Convention rights could potentially entail the abuse of fundamental rights and freedoms for “reasons of State” or in order to safeguard the ruling regime against oppositional actors[2]. The provision was accordingly designed to allow the Court to address the improper limitation of rights or, in other words, the illegitimate restriction of Convention rights through “pseudo-legitimate means”[3].

    5.  In applying Article 18, the Court has found a violation of that provision where an applicant’s liberty was restricted “not for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons” (see Tymoshenko v. Ukraine, no. 49872/11, § 300, 30 April 2013). In 2014 it found a violation of Article 18 in the context of criminal proceedings against an Azerbaijani blogger and opposition politician, on the grounds that “the actual purpose of the impugned measures was to silence or punish the applicant for criticising the Government” (see Ilgar Mammadov v. Azerbaijan, no. 15172/13, §§ 142-43, 22 May 2014). In 2016 the Court similarly found a violation of Article 18 in the criminal proceedings instituted against an Azerbaijani human rights advocate, where the “the actual purpose of the impugned measures was to silence and punish the applicant for his activities” (see Rasul Jafarov, cited above, §§ 125 and 156).

    6.  The facts of the present case thus fit squarely with the Court’s past case-law under Article 18, which addresses the silencing of dissidents through pseudo-legitimate means. The facts indicate that the applicant in the present case was singled out at Sheremetyevo airport to prevent him, as a prominent opposition member, from attending a demonstration at the EU-Russia summit in Samara. The fact that the Court has found that his deprivation of liberty did not have a legitimate purpose as required under Article 5 § 1 of the Convention, and that the restriction of his freedom of assembly under Article 11 of the Convention lacked a legal basis, does not address the fact that he was singled out by the authorities, who made improper use of the relevant legal machinery with the intention of silencing a dissident.

    7.  Certainly, the Court has not found many violations of Article 18 in the past. This is due largely to the accessory nature of the provision and to the high standard of proof required under it, which has rightly been criticised by some of my colleagues (see, inter alia, Tchankotadze v. Georgia, no. 15256/05, 21 June 2016, joint concurring opinion of Judges Sajó, Tsotsoria and Pinto de Albuquerque, §§ 7-10, and, in the same judgment, the concurring opinion of Judge Kūris)[4]. On occasion, the Court has interpreted that standard of proof in an almost impossibly strict manner, requiring applicants to provide evidence to rebut the presumption that the State authorities acted in good faith, in order to prove that the criminal proceedings against them did not have a “healthy core” (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, §§ 906 and 908-09, 25 July 2013).

    8.  Although it seems evident in this case that the applicant was deprived of his liberty for the sole purpose of preventing him from exercising his freedom of assembly, the present separate opinion will not engage further with issues of proof and the merits of the applicant’s Article 18 complaint. For present purposes it suffices to note that the Court’s jurisprudence has begun to move away from the inordinately high standard of proof occasionally required under Article 18 in the past (see Ilgar Mammadov v. Azerbaijan, no. 15172/13, §§ 142-43, 22 May 2014, and Rasul Jafarov, cited above, §§ 125 and 156) and that, where the Court finds that an applicant’s deprivation of liberty was not based on a “reasonable suspicion” for the purposes of Article 5 § 1 (c), it considers the presumption of good faith on the part of the State to be rebutted and examines the merits of the complaint, namely whether there is “proof that the authorities’ actions were actually driven by improper reasons” (compare Rasul Jafarov, cited above, §§ 156-57).

    9.  Given the above, and whatever the outcome of its examination of Article 18 on the merits might have been, I cannot agree with the Court’s decision to find that the present case raises no separate issue under that provision. In the past, the Court has held that “in view of the scarcity of the case-law under that Convention provision, in each new case where allegations of improper motives are made the Court must show particular diligence” (see Khodorkovskiy and Lebedev, cited above, § 898). That diligence is missing here. Indeed, the Court’s failure to examine complaints under Article 18 on the merits not only fails to do justice to the victims of targeted criminal proceedings, but it also reinforces the relegation of Article 18 to an insignificant role in which it is not being used for its intended purpose.


    [1]  Keller, Helen and Heri, Corina, “Selective Criminal Proceedings and Article 18 of the European Convention on Human Rights’ Untapped Potential to Protect Democracy”, 36(1-6) Human Rights Law Journal (2016), 1-10, at 8, with further references.

    [2]  Statement by Pierre-Henri Teitgen (France), orally presenting the report of the Legal Committee at the first session of the Consultative Assembly of the Council of Europe, in “Collected Edition of the ‘Travaux Preparatoires’ of the European Convention on Human Rights, Volume I: Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly (11 May-13 July 1949)” (Martinus Nijhoff, The Hague, 1975), 130.

    [3]  Statement by Lodovico Benvenuti (Italy) at the first session of the Consultative Assembly of the Council of Europe, Strasbourg, 8 September 1949, in “Collected Edition of the ‘Travaux Preparatoires’ of the European Convention on Human Rights, Volume I”, cited above, 179-80. Compare, for more on this topic, Keller, Helen and Heri, Corina (2016), cited above, at 3.

    [4]  Compare the discussion in Keller, Helen and Heri, Corina (2016), cited above.

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