3345/18;28457/18;29504/18;34424/18;38160/18;58382/18;7057/19;29250/19;59858/19;62851/19;4441/20;5987/20;19616/20;22273/20;22292/20;22834/20;36705/20;4593/21

SECOND SECTION CASE OF OVCHAROV AND OTHERS v. RUSSIA (Applications nos. 3345/18 and 17 others – see appended list)             JUDGMENT   STRASBOURG 7 December 2023   This judgment is final but it may be subject to editorial revision. In the case of Ovcharov and Others v. Russia, The European Court of Human Rights (Second Section), sitting as a Committee composed of:  Lorraine Schembri Orland, President,  Frédéric Krenc,  Davor Derenčinović, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 16 November 2023, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table 2.  The Russian Government (“the Government”) were given notice of the applications. THE FACTS 3.  The list of applicants and the relevant details of the applications are set out in the appended table. 4.  The applicants complained of the unlawful detention (deprivation of liberty). Some applicants also raised other complaints under the provisions of the Convention. THE LAW JOINDER OF THE APPLICATIONS 5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. Jurisdiction 6.  The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68‑73, 17 January 2023). ALLEGED VIOLATION OF ARTICLE 5 § 1 of the Convention 7.  The applicants complained principally of the unlawful detention (deprivation of liberty). They relied, expressly or in substance, on Article 5 § 1 of the Convention. 8.  The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see, among numerous other authorities, Benham v. the United Kingdom, 10 June 1996, §§ 40-41 in fine, Reports of Judgments and Decisions 1996-III). 9.  In the leading cases of Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, 26 June 2018, Rozhkov v. Russia (no. 2), no. 38898/04, §§ 91‑96, 31 January 2017, Butkevich v. Russia, no. 5865/07, § 67, 13 February 2018, Kuptsov and Kuptsova v. Russia, no. 6110/03, § 81, 3 March 2011, and Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018, the Court has already found a violation in respect of the issues similar to those in the present case. 10.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ detention was contrary to domestic law requirements and the “lawfulness” guarantee of Article 5 of the Convention (see the appended table). 11.  These complaints are therefore admissible and disclose a breach of Article 5 § 1 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12.  Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well‑established case-law (see, among other authorities, Karelin v. Russia, no. 926/08, 20 September 2016, concerning absence of a prosecuting party from the administrative proceedings, Dirdizov v. Russia, no. 41461/10, §§ 108-11, 27 November 2012, concerning excessive length of pre-trial detention; Korneyeva v. Russia, no. 72051/17, §§ 62-65, 8 October 2019, concerning the right not to be tried and punished twice for the same offence; and Kleyn v. Russia, no. 44925/06, §§39-46, 5 January 2016, related to the right to compensation in respect of detention in contravention of Article 5 § 1 of the Convention). REMAINING COMPLAINTS 13.  Ms Beshtoyeva (application no. 59858/19) also raised additional complaints under Article 6 of the Convention. 14.  The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. 15.  In view of the findings in paragraphs 11 and 12 above, the Court considers that there is no need to deal separately with the remaining applicants’ complaints under Article 6 of the Convention concerning the fairness of the proceedings and the alleged restrictions on the right to examine witnesses. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Biryuchenko and Others v. Russia [Committee], nos. 1253/04 and 2 others, § 96, 11 December 2014), the Court considers it reasonable to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Holds that it has jurisdiction to deal with these applications as they relate to facts that took place before 16 September 2022; Declares the complaints concerning the unlawful detention and the other complaints under the well-established case-law of the Court, as set out in the appended table, admissible and the remainder of application no. 59858/19 inadmissible, and finds that it is not necessary to deal separately with the remaining complaints under Article 6 of the Convention; Holds that these applications disclose a breach of Article 5 § 1 of the Convention concerning the unlawful detention (deprivation of liberty); Holds that there has been a violation of the Convention and its Protocols as regards the other complaints raised under the well-established case-law of the Court (see the appended table); Holds (a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 7 December 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Lorraine Schembri Orland  Acting Deputy Registrar President     APPENDIX List of applications raising complaints under Article 5 § 1 of the Convention (unlawful detention (deprivation of liberty)) No. Application no. Date of introduction Applicant’s name Year of birth   Representative’s name and location Start date of unauthorised detention End date of unauthorised detention Specific defects Other complaints under well-established case-law Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant (in euros)[1]     3345/18 26/12/2017 Daniil Igorevich OVCHAROV Peredruk Aleksandr Dmitriyevich St Petersburg 12/06/2017 2.30 p.m. 13/06/2017 unspecified time Applicant taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable, on the spot, to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019) Prot. 7 Art. 4 - right not to be tried or punished twice in criminal proceedings - the applicant was charged under Art. 19.3 (1), Art. 20.2 (5) of CAO for essentially the same action and sentenced to fines of RUB 1,000 and 10,000, respectively,   Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in both sets of the administrative-offence proceedings – before the St Petersburg City Court, both final decisions on 28/06/2017. 3,900     28457/18 30/05/2018 Liparit Genrikovich AREVSHATYAN Memorial Human Rights Centre Moscow 12/06/2017, 2.30 p.m. 12/06/2017, 11.40 p.m. Applicant taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable, on the spot, to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019), Detention as an administrative suspect: beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018) Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Moscow City Court, 20/03/2018, fine of RUB 20,000 3,900     29504/18 13/06/2018 Artem Dmitriyevich PEREPELENKO Memorial Human Rights Centre Moscow 12/06/2017, 3.50 p.m. 12/06/2017, 11.50 p.m. Applicant taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable, on the spot, to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019), Detention as an administrative suspect: beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018) Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Final decision on the matter was taken by the Moscow City Court on 18/01/2018. The applicant was ordered to pay a fine of RUB 15,000 3,900     34424/18 18/07/2018 Ivan Aleksandrovich ZENIN Memorial Human Rights Centre Moscow 12/06/2017 3.40 p.m. 12/06/2017 10.00 p.m. Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018) , Applicant taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable, on the spot, to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019) Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Moscow City Court, 30/01/2018, fine of RUB 15,000   3,900     38160/18 04/08/2018 Rayudin Aydakadiyevich YUSUFOV Khasavov Dagir Ziyavdinovich Moscow 05/02/2018, 5.30 a.m. 05/02/2018, 6.03 p.m. Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018)       3,000     58382/18 29/11/2018 Aleksey Pavlovich PROVOROV Tretyak Tatyana Aleksandrovna Gelendzhik 20/07/2018 01/09/2018 Authorities’ failure to specify the period of pre-trial detention (see Logvinenko v. Russia, no. 44511/04, §§ 35-39, 17 June 2010) Art. 5 (3) - excessive length of pre-trial detention - from 25/01/2013 to 25/11/2017 (conviction by trial court) and from 20/07/2017 – pending on the date the application was lodged with the Court (the latest appeal decision was taken by the Supreme Court of the Adygeya Republic on 27/09/2018). Defects: failure to conduct the proceedings diligently leading to excessive length of detention on remand.   Art. 5 (5) - lack of, or inadequate, compensation for unlawful arrest or detention 6,500     7057/19 17/01/2019 Valentina Vyacheslavovna MANZHIYEVA Andropov Sergey Vyacheslavovich Moscow 18/07/2018 20/07/2018 Delay of more than a few hours in releasing the applicant (see Butkevich v. Russia, no. 5865/07, § 67, 13 February 2018)   3,000     29250/19 21/05/2019 Roman Vyacheslavovich FEDOROV     04/11/2018 3 p.m. 06/11/2018 time unspecified Applicant taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable, on the spot, to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019), Detention as an administrative suspect: no evidence/assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO (see Butkevich v. Russia, no. 5865/07, §§ 63-64, 13 February 2018; Tsvetkova and Others v. Russia, 10 April 2018) , Detention as an administrative suspect: the applicant remained in detention after the offence record had been compiled (see Korneyeva v. Russia, no. 72051/17, § 35, 8 October 2019) Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings – final decision on 10/12/2018, by the Moscow City Court, fine of RUB 150,000. 5,900     59858/19 16/12/2019 Lyudmila Viktorovna BESHTOYEVA Avanesyan Aleksey Viktorovich Yekaterinburg 21/11/2019 10/12/2019 Delay of more than a few hours in releasing the applicant (see Butkevich v. Russia, no. 5865/07, § 67, 13 February 2018)   3,000   62851/19 25/11/2019 Konstantin Dmitriyevich KOLUZAKOV Protasyuk Dmitriy Aleksandrovich Nizhniy Novgorod 29/05/2019, 2 p.m. 30/05/2019, 6 p.m. Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018)   3,000   4441/20 08/12/2019 Ilgiz Railyevich YAKHIN     27/06/2019 04/07/2019 Delay of more than a few hours in releasing the applicant (see Butkevich v. Russia, no. 5865/07, § 67, 13 February 2018)   3,000   5987/20 19/12/2019 Nail Salavatovich GAZIZOV     27/06/2019 04/07/2019 Delay of more than a few hours in releasing the applicant (see Butkevich v. Russia, no. 5865/07, § 67, 13 February 2018)   3,000   19616/20 16/03/2020 Mikhail Alekseyevich MOROZOV     02/09/2019, 11 p.m. 03/09/2019, 9 p.m.   The complaint was raised in the proceedings concerning the applicant’s remand in custody. On 10/10/2019 the Moscow Regional Court upheld the detention order on appeal. Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018)   3,000   22273/20 12/05/2020 Sergey Nikolayevich CHERNYSHEV Chekulayev Dmitriy Petrovich Moscow 18/11/2019, 7 a.m. 18/11/2019, 8.40 p.m. Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018),  Detention without a court order beyond the 48-hour time-limit (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 82, 26 June 2018)   3,000   22292/20 12/05/2020 Aleksandr Viktorovich MISHENIN     14/01/2020 15/01/2020 Delay of more than a few hours in releasing the applicant (see Butkevich v. Russia, no. 5865/07, § 67, 13 February 2018)   3,000   22834/20 11/04/2020 Aleksandr Vladimirovich POMAZAN Semkin Vladimir Borisovich Tyumen 03/11/2019, 1 a.m. 03/11/2019, 12.38 p.m. Detention as an administrative suspect: beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018), Applicant taken to the police station as an administrative suspect for the purposes of compiling an offence record: no written record of the administrative escort (Art. 27.2 § 3 CAO) (see Timishev v. Russia [Committee], no. 47598/08, § 21, 28 November 2017)   3,000   36705/20 02/08/2020 Anna Dmitriyevna KHARITONOVA Andreyev Ashot Aleksandrovich Syktyvkar 18/12/2019, 12 a.m. 19/12/2019   The complaint about unlawful detention was raised by the applicant in the administrative-offence proceedings. The final decision on the matter was taken by the Syktyvkar Town Court of the Komi Republic on 06/02/2020. Applicant taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable, on the spot, to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019), Detention as an administrative suspect: no written record of the administrative arrest (Art. 27.4 CAO) (see Timishev v. Russia [Committee], no. 47598/08, § 21, 28 November 2017)   3,000   4593/21 28/12/2020 Vladimir Vladimirovich ZUBKOV Knyazkov Aleksandr Aleksandrovich Yaroslavl 29/06/2020 03/07/2020 Delay of more than a few hours in releasing the applicant (see Butkevich v. Russia, no. 5865/07, § 67, 13 February 2018)   3,000     [1] Plus any tax that may be chargeable to the applicants.