European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF NOVIKOV v. RUSSIA

(Application no. 26023/18)

 

 

 

 

 

 

JUDGMENT

 

STRASBOURG

1 December 2022

 

 

 

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

 

In the case of Novikov v. Russia,

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

          Darian Pavli, President,
          Ioannis Ktistakis,
          Andreas Zünd, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 10 November 2022,

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

PROCEDURE

1.  The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 May 2018.

2.  The applicant was represented by Ms Y. Lavrova, a lawyer practising in Obninsk.

3.  The Russian Government (“the Government”) were given notice of the application.

THE FACTS

4.  The applicant’s details and information relevant to the application are set out in the appended table.

5.  The applicant complained of the unlawful detention (deprivation of liberty).

THE LAW

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

6.  The applicant complained of the unlawful detention (deprivation of liberty). He relied on Article 5 § 1 of the Convention, which, in so far as relevant, 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:

...

(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.”

7.  The Court has already held on many occasions that the absence of an arrest record must in itself be considered a most serious failing, as it has been the Court’s constant 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 a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for his 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, among other authorities, Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 76, 26 June 2018).

8.  Having examined all the material submitted to it and having decided to reject the Government’s objection of non-exhaustion (see Fortalnov and Others, cited above, § 66, Ivan Kuzmin v. Russia, no. 30271/03, § 79, 25 November 2010, and Yelchaninov v. Russia [Committee], no. 20179/12, 16 March 2021), 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 in the present case. Taking into account that the Government did not dispute that on 13 October 2016 the applicant was “deprived of his liberty” in the absence of any official record, the Court considers that his arrest and detention were contrary to the requirements implicit in Article 5 of the Convention for the proper recording of deprivations of liberty.

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

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

10.  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.”

11.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Biryuchenko and Others v. Russia [Committee], no. 1253/04 and 2 others, § 96, 11 December 2014), the Court considers it reasonable to award the sum indicated in the appended table and dismisses the remainder of the applicant’s claims for just satisfaction.

12.  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.      Declares the application admissible;

2.      Holds that this application discloses a breach of Article 5 § 1 of the Convention concerning the unlawful detention (deprivation of liberty);

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the amount 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claims for just satisfaction.

Done in English, and notified in writing on 1 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

      Viktoriya Maradudina                                                Darian Pavli

    Acting Deputy Registrar                                                President

 

                       

 

APPENDIX

Application raising complaints under Article 5 § 1 of the Convention

(unlawful detention (deprivation of liberty))