Mensenrechtenhof veroordeelt Rusland wegens voortdurende vervolging van dhr. Fedotov zonder legale reden (en)

The European Court of Human Rights has today notified in writing a judgment [1] in the case of Fedotov v. Russia (application no. 5140/02).

The Court held unanimously that there had been:

• - 

  a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights on account of the applicant's detention on 6 and 7 July 2000, and no violation of Article 3 on account of the applicant's detention on 14 and 15 June 2000;
• - 

  a violation of Article 5 §§ 1 and 5 (right to liberty and security) of the Convention;
• - 

  a violation of Article 6 § 1 (right to a fair hearing within a reasonable time);
• - 

  a violation of Article 1 of Protocol No. 1 (protection of property).

The Court also held unanimously that Russia was to secure, by appropriate means, the enforcement of the domestic courts' judgments of 18 December 2001 and 24 November 2004 within three months from the date on which today's judgment became final.

Under Article 41 (just satisfaction), the Court awarded the applicant 7,400 euros (EUR) for non-pecuniary damage and EUR 800 for costs and expenses. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicant, Igor Leonidovich Fedotov, is a Russian national aged 48 who lives in Borovichi in the Novgorod Region (Russia).

In 1999 an investigation was started into the applicant's affairs, as he was suspected of using his position for personal gain. In October 1999 the Borovichi District prosecutor charged the applicant and issued an arrest warrant.

On 1 February 2000 the prosecutor of the Novgorod Region quashed the decision to charge the applicant and cancelled the warrant. Meanwhile, on 9 February 2000 Borovichi Criminal Police put the applicant's name on the federal list of wanted persons. In April 2000 a senior investigator discontinued the proceedings against the applicant because no criminal offence had been committed.

On 14 June 2000 the applicant was detained in Izmaylovo Hotel in Moscow because his name was still on the federal list of wanted persons. During his 12 hours in detention he was interrogated, searched and allegedly verbally abused by police officers. He was released when the Novgorod Regional Police confirmed that the arrest warrant had been cancelled.

On 6 July 2000 the applicant was detained again in Moscow because his name still featured on the wanted persons list. He was handcuffed and taken to "Rostokino" Police Station. He was released the next day after confirmation had been received that the warrant had been cancelled. During the 22 hours he spent in detention, he received no water or food and was given no access to a toilet.

In October 2000 a deputy prosecutor of the Novgorod Region explained to the applicant that his name had been deleted from the wanted persons' list on 5 May 2000 and that the central database of the Ministry of the Interior had been updated on 16 May 2000. However, an investigator had failed to notify the Borovichi Police Department that the arrest warrant had been cancelled which led to his being arrested a second time.

After the applicant's case before the European Court of Human Rights had been communicated to the Russian Government, Ostankinskiy Interdistrict Prosecutor's Office carried out an inquiry into the applicant's complaints of 2000. In March 2004 it issued a decision not to initiate criminal proceedings in connection with his allegations of ill-treatment because there was no evidence of criminal conduct by any of the police officers. The Moscow City Prosecutor quashed that decision and ordered a further inquiry.

In early 2001 the applicant sued the Ministry of Finance, the Prosecutor General's Office and the Ministry of the Interior. He claimed compensation for pecuniary and non-pecuniary damage in connection with the unlawful criminal proceedings and arrest.

Basmanniy District Court of Moscow requested "Rostokino" Police Station to provide the papers relating to the applicant's detention on 6-7 July 2000, which it would seem were never sent. On 18 September 2001 the court found that the criminal proceedings against the applicant had been unlawful because they were ultimately discontinued for lack of evidence. Having regard to the fact that "[the applicant] had given an undertaking not to leave the town and had not actually been taken into custody", the district court awarded him a small amount of compensation for non-pecuniary damage and dismissed the remainder of his claims.

The applicant appealed, complaining, in particular, that the district court had deliberately given an incomplete account of the circumstances of the case and that his claims for compensation for unlawful detention in June and July 2000 had not been considered. Moscow City Court, however, upheld the district court's judgment.

In January 2002 the applicant applied to Basmanniy District Court for a writ of execution. A series of exchanges then took place between the applicant, the district court and other authorities. During that time the applicant was informed on several occasions that the writs had been sent to the court bailiffs for enforcement. Moscow Main Directorate of the Ministry of Justice, however, informed the applicant that no trace could be found of any such writs.

In December 2004 Basmanniy District Court issued a new writ and submitted it directly to the Ministry of Finance. In his letter to the applicant, the court president acknowledged that the previously issued writs had not conformed to the law on enforcement proceedings.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 18 December 2001 and declared partly admissible on 23 November 2004.

Judgment was given by a Chamber of seven judges, composed as follows:

Josep Casadevall (Andorran), President,

Giovanni Bonello (Maltese),

Matti Pellonpää (Finnish),

Rait Maruste (Estonian),

Anatoli Kovler (Russian),

Stanislav Pavlovschi (Moldovan),

Javier Borrego Borrego (Spanish), judges,

and also Michael O'Boyle, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

The applicant complained about his detention and the conditions of his detention on 14-15 June and 6-7 July 2000. He relied on Articles 3 and 5.

The Court decided, on its own initiative, to examine the prolonged failure to enforce the judgment of the Basmanniy District Court of 18 September 2001 under Article 6 § 1 and Article 1 of Protocol No. 1.

Decision of the Court

Article 3

As regards the applicant's detention on 14-15 June 2000, the Court noted that he only remained in custody for 12 hours. Accordingly, the Court did not consider that the treatment to which the applicant had been subjected attained the minimum level of severity required for the application of Article 3. There had therefore been no violation.

As to his detention on 6-7 July 2000, the Court observed that the applicant was detained overnight in a cell unfit for an overnight stay, without food or drink or unrestricted access to a toilet. His description coincided with the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) which had established in 2001 that the conditions of detention in administrative-detention cells of Moscow police stations had been totally unacceptable for extended periods of custody.

The Court found that the unsatisfactory conditions in which the applicant was detained exacerbated the mental anguish caused by the unlawful nature of his detention and amounted to inhuman treatment in violation of Article 3.

Furthermore, the Court noted that the domestic authorities failed to investigate the applicant's complaints concerning the conditions of his detention. The inquiry that began in 2004 - after the applicant's case had been communicated by the Court to the Russian Government - did not lead to the identification of those responsible for the inhuman conditions of detention.

The Court found, accordingly, that there had been a violation of Article 3.

Article 5

It was not disputed that, after 1 February 2000, when the warrant for the applicant's arrest was cancelled, there was no further decision authorising the applicant's arrest or detention. It followed that the applicant's arrest in June and July 2000 was not "lawful", under either domestic law or the Convention.

The Court noted with concern that the only reason for his arrest was the lack of co-operation between the competent State authorities. Borovichi Police's failure to verify the existence of a valid arrest warrant prior to placing the applicant's name on the federal list of wanted persons was further aggravated by the Novgorod Police's omission to report the fact that the criminal proceedings had been discontinued promptly. A further cause for concern was the fact that Moscow Police and the prosecutor's office failed to react with sufficient diligence to the applicant's complaint about his unlawful arrest, thereby permitting the re-arrest of a person who was known to be innocent.

Finally, the Court observed that no records of the applicant's arrests in June and July 2000 appeared to have been drawn up and that the officer in charge of the police station expressly refused his request for a record. That fact in itself had to be considered a most serious failing, as it has been the Court's traditional view that the unacknowledged detention of an individual was a complete negation of the fundamentally important guarantees contained in Article 5 and disclosed 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 the detention and the name of the person effecting it had to be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5. The Court found that there had been a violation of Article 5 § 1 and that, in the light of that finding, no separate issues arose under paragraphs 2, 3 and 4.

The Court further noted that the applicant had validly introduced a claim for the damage he incurred as a result of his unlawful detention. However, the domestic courts disregarded it. Basmanniy District Court also made arbitrary findings of fact, stating in its judgment that the applicant "had not actually been taken into custody", despite abundant evidence to the contrary. The Court found that the applicant had been denied an enforceable right to compensation for unlawful arrest and that there had been a violation of Article 5 § 5.

Article 6 § 1 and Article 1 of Protocol No. 1

The Court considered that all the delays in the enforcement proceedings were attributable to failings on the part of the domestic authorities.

Thus, for the first two years Basmanniy District Court refused to issue the applicant with a writ of execution, so preventing him from serving it on the Ministry of Finance. At the same time it gave misleading information that the writ had been sent for enforcement. Furthermore, on two occasions it issued writs of execution which failed to satisfy the requirements of the domestic law.

Further delays were due to the conduct of the Ministry of Finance which, having held on to the writ for some seven months, returned it to the applicant so that certain purported defects could be rectified. Although the writ was resubmitted in December 2004, by February 2005 the judgment had still not been enforced.

The Court had frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the applicant's case. Having examined the material submitted before it, the Court found that by failing for years to comply with the enforceable judgment in the applicant's favour the domestic authorities prevented him from receiving the money to which he was entitled. There had accordingly been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1.

***

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.