European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF TIMISHEV v. RUSSIA

 

(Application no. 47598/08)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

28 November 2017

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Timishev v. Russia,

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

          Branko Lubarda, President,
          Pere Pastor Vilanova,
          Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 7 November 2017,

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

PROCEDURE

1.  The case originated in an application (no. 47598/08) 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 Ilyas Yakubovich Timishev (“the applicant”), on 19 January 2007.

2.  The applicant was granted leave to represent himself before the Court (Rule 36 § 2 of the Rules of Court). The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 1 December 2016 the complaint concerning the applicant’s detention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1950 and lives in Nalchik, the Ingushetiya Republic. He is a practising lawyer.

5.  On 10 October 2006 the applicant was travelling by a collective taxi from Nalchik to Grozny in Chechnya. At about 1 p.m. a police officer stopped the vehicle at the Ingush-Chechen administrative border and proceeded to check the passengers’ identity documents. He discovered that the applicant’s signature in his passport had been made in red ink and told him that he would be charged with an administrative offence under Article 19.15 of the Code of Administrative Offences for using an invalid identity document. The applicant raised his objections, claiming that the wrong kind of ink did not render his passport invalid.

6.  The police first took the applicant by car to the Goragorsk police station (ТОМ пос. Горагорск) where an inspector told him that he was “temporarily detained for the purpose of drawing up a report”. Once the report had been completed at 3.15 p.m., another police officer took the applicant, again by police car, from Goragorsk the Nadterechnyi district police station (ОДЧ Надтереченского района). An operative established his identity, verified his documents and let him go at 5.10 p.m. The station chief later stated that the applicant had “thanked him for a prompt release”.

7.  The applicant asked the supervising prosecutor to investigate whether the police had abused their powers by detaining him. The Nadterechnyi district prosecutor’s office issued several decisions refusing institution of criminal proceedings. One of them was set aside by the Nadterechnyi District Court on 13 July 2007 for the following reasons:

“The issue whether the administrative detention of Mr Timishev was necessary has not been clarified. Pursuant to Article 27.3(1) of the Code of Administrative Offences, administrative detention may be applied in exceptional circumstances if this is necessary for the prompt and proper examination of the alleged administrative offence. The decision ... refusing institution of criminal proceedings indicates that a report on the administrative offence ... was compiled and forwarded to [Mr Timishev’s] place of residence. In these circumstances, the court sees no grounds for the administrative detention of Mr Timishev.”

8.  Subsequent decisions refusing institution of criminal proceedings stated alternatively that it was impossible to establish the time of the applicant’s detention because it had not been recorded in any documents, that the applicant had been detained for disobeying police orders, that he had been actually free to go after 3.15 p.m. but had asked to be taken to the Nadterechnyi office to file a complaint there and the police had ensured his safe passage. Each time the prosecutor concluded that the police had not committed any prosecutable offence.

9.  On 27 January 2009 the Nadterechnyi District Court identified a number of serious shortcomings in the investigation. The court pointed out that it had not been established why the report on the administrative office could not have been drafted at the checkpoint and why it was considered necessary to escort the applicant to Goragorsk. It remained unclear what had happened to the report: the investigator had not obtained the forwarding letter or any information about the outcome of the proceedings. The investigator had not inquired why an escorting report required under Article 27.2(3) of the Code or the detention report required under Article 27.4 of the Code had not been prepared. Nor had he determined what “exceptional circumstances” within the meaning of Article 27.3(1) had called for the applicant’s detention and at what time the applicant had actually left the Nadterechnyi police station.

10.  The court was not convinced that the applicant had asked the police to take him to the Nadterechnyi office to file a complaint. It considered implausible that the police had provided a car and an escort to help him complain about their conduct. Even assuming that he had indeed wished to make a complaint, the investigator did not establish what had happened to it or, alternatively, why he had not written it, or why he had gone there in person instead of sending it by post from Goragorsk. Statements by the police officers who stated that the applicant had been “released” were also indicative of the fact that he had been taken to the Nadterechnyi office against his will.

11.  Finally, the court criticised the investigator’s assumption that the applicant had committed an administrative offence. It noted that, according to the Guidance on Issuing Passports (order no. 605 of 15 September 1997), the head of the passports department should have asked the passport holder to sign the passport with special ink. Responsibility for the wrong kind of ink should lie with the official who departed from the Guidance rather than with the applicant.

12.  On 9 April 2009 the investigator issued a further decision refusing institution of criminal proceedings. It was similar in its wording to the previous ones and did not touch upon the areas of concern identified in the District Court’s judgment.

II.  RELEVANT DOMESTIC LAW

13.  For relevant provisions of the Code of Administrative Offences concerning escorting by police (Article 27.2) and administrative detention (Articles 27.3-27.5), see Frumkin v. Russia, no. 74568/12, § 79, ECHR 2016 (extracts).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

14.  The applicant complained that he had been deprived of his liberty in breach of Article 5 of the Convention which reads as follows:

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

...

(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 ...”

15.  The Government submitted that the use of red ink “raised doubts about the authenticity of the applicant’s passport” and that he had been lawfully “apprehended” in connection with the administrative offence of using invalid identity documents. In their submission, as he had been released at 3.15 p.m., the overall period of his detention had not exceeded three hours which was compatible with the requirements of Article 27.5 of the Code of Administrative Offences. His detention was therefore lawful and the complaint manifestly ill-founded.

16.  The applicant maintained that the colour of the ink did not affect the validity of his passport. He had been using the same passport since December 2001 and it had never been pronounced invalid. He had not been prosecuted or convicted for the alleged administrative offence which indicated that he had not committed anything illegal. The applicant denied that he had been taken to the Nadterechnyi station of his own will to file a complaint. His detention had lasted in excess of four hours, from 1 p.m. until 5.10 p.m.

A.  Admissibility

17.  The Court considers that the application 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

18.  The Court observes that the applicant was forced to alight from the collective taxi and to go to the Goragorsk police station in the police car. Nothing suggests that he could freely decide not to follow the police officers to the station or, once there, leave it at any moment without incurring adverse consequences. There was therefore an element of coercion which indicates that, starting from 1 p.m. on 10 October 2006, the applicant was deprived of his liberty within the meaning of Article 5 § 1 (compare Rozhkov v. Russia (no. 2), no. 38898/04, § 79, 31 January 2017).

19.  The Government’s claim that the applicant had been released at 3.15 p.m. and had gone to the Nadterechnyi police station of his own will appears as implausible to this Court as it did to the domestic court (see paragraph 10 above). The applicant denied that he had asked to be taken there to file a complaint, and the Government were unable to produce a copy of any such complaint to substantiate their contention. The facts that the applicant was brought there by police car in the company of a police officer, that he had his identity checked, and that he had thanked the station chief for “a prompt release” (see paragraph 6 above) suggest that the applicant’s transfer to the Nadterechnyi police station and his stay there amounted to a deprivation of liberty. He was therefore deprived of his liberty until 5.10 p.m. on 10 October 2006, for a total duration of four hours and ten minutes.

20.  The Court must next ascertain whether the applicant’s deprivation of liberty complied with the requirements of Article 5 § 1. It reiterates that the terms “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially state the obligation to conform to the substantive and procedural rules of national law. In addition, it must be shown that the detention during the period under consideration was compatible with the purpose of Article 5 § 1, which is to prevent individuals from being deprived of their liberty in an arbitrary fashion (see Mooren v. Germany [GC], no. 11364/03, § 72, 9 July 2009).

21.  The first and the most serious failing is the absence of any records formalising the applicant’s deprivation of liberty. The domestic court pointed out that neither an escorting report required under Article 27.2(3) of the Code nor the detention report required under Article 27.4 of the Code had been compiled (see paragraph 9 above). It has been the Court’s consistent view that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of records of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Rakhimberdiyev v. Russia, no. 47837/06, § 34, 18 September 2014, with further references).

22.  Secondly, as regards the escorting of the applicant to the Goragorsk station for the purpose of drawing up an offence report, the Court observes that Article 27.2 allows the suspected offender to be escorted to a police station only if such a report cannot be drawn up at the place where the offence was discovered. The Government did not demonstrate that in the applicant’s case that had been impossible, and the domestic court did not establish any obstacles to drawing up the report on the spot, either (see paragraph 9 above and, for a similar reasoning, Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, § 489, 7 February 2017, and Navalnyy and Yashin v. Russia, no. 76204/11, §§ 68 and 93, 4 December 2014). It follows that depriving the applicant of his liberty for the purpose of escorting him to the Goragorsk station was unlawful and arbitrary.

23.  Thirdly, after the presumed objective of escorting the applicant to the Goragorsk police station had been achieved and the report had been drawn up, he should have been discharged. The domestic court pointed out, in at least two judgments, that his further administrative detention had not been called for on account of any “exceptional circumstances” within the meaning of Article 27.3(1) of the Code of Administrative Offences (see paragraphs 7 and 9 above). In the absence of any specific and compelling reasons for not releasing the applicant and escorting him instead to the Nadterechnyi police station, the Court considers that his further detention was also arbitrary (see Frumkin, cited above, § 150).

24.  Lastly, the Court sees merit in the applicant’s submission that his detention was also in breach of the substantive law because no offence had been committed. The domestic court indicated that the passport-issuing authority was primarily responsible for the contents of the passport and for the way it had been filled out (see paragraph 11 above). It was not alleged that the applicant had somehow spoilt the document by, for instance, adding unauthorised notes or scribbling on it. It is also relevant that the applicant has not been tried or convicted for using an invalid identity document either on that occasion, or at any other time in the sixteen years he has been using that passport.

25.  In the light of the above elements, the Court finds that there has been a violation of Article 5 § 1 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  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.”

27.  The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage and 1,500 euros in respect of legal costs.

28.  The Government indicated that Article 41 was to be applied in accordance with the established case-law.

29.  The Court awards the applicant the amounts claimed in respect of non-pecuniary damage and legal costs, plus any tax that may be chargeable.

30.  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 application admissible;

 

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

 

3.  Holds

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

(i)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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.

Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                      Branko Lubarda
Deputy Registrar                                                                       President