Case of European Court of Human Rights, January 14, 2020 (case LAVRICHENKO v. RUSSIA)

Defense:RUSSIA
Resolution Date:January 14, 2020
SUMMARY

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

 
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THIRD SECTION

CASE OF LAVRICHENKO v. RUSSIA

(Application no. 10917/06)

JUDGMENT

STRASBOURG

14 January 2020

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

In the case of Lavrichenko v. Russia,

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

Georgios A. Serghides, President,Erik Wennerström,Lorraine Schembri Orland, judges,and Stephen Phillips, Section Registrar,

Having deliberated in private on 3 December 2019,

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

PROCEDURE

  1. The case originated in an application (no. 10917/06) 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 two Russian nationals, Mrs Yelena Vladimirovna Lavrichenko and Mr Andrey Yevgenyevich Lavrichenko (“the applicants”), on 7 February 2006.

  2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the former 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 3 April 2013 notice of the application was given to the Government.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  4. The applicants, Mrs Yelena Vladimirovna Lavrichenko (“the first applicant”) and Mr Andrey Yevgenyevich Lavrichenko (“the second applicant”), are Russian nationals who were born in 1958 and 1986 respectively and live in Novosibirsk. The second applicant is the first applicant’s son.

  5. The facts of the case, as submitted by the applicants, may be summarised as follows.

    1. Criminal proceedings against the first applicant

  6. As of 7 April 2004 the first applicant was suspected of a number of economic offences.

  7. The first applicant’s enforced attendance for questioning as a witness

  8. On 30 March 2005 an investigator ordered that the first applicant should be forcibly brought before her to be questioned as a witness in unrelated criminal proceedings.

  9. On 1 April 2005 the police brought the first applicant before the investigator, pursuant to the order of 30 March 2005. After the questioning, the first applicant was free to go.

  10. The first applicant’s second enforced attendance for questioning and subsequent arrest

  11. During the questioning on 1 April 2005 the investigator had requested that the first applicant appear on 11 April 2005 to be questioned about the criminal case against her.

  12. On 11 April 2005 the first applicant’s legal counsel arrived to assist her during the questioning. As he saw that there were policemen with the investigator, he called the first applicant and told her that she was going to be arrested. Fearing unlawful arrest, the first applicant decided not to go to the questioning.

  13. On 21 April 2005 the investigator charged the first applicant in her absence. On 22 April 2005 the investigator ordered that she should not leave town without the investigator’s approval. The first applicant was not informed of those decisions.

  14. On 25 April 2005 the investigator ordered that the first applicant should be forcibly taken to the premises of the Novosibirsk Investigative Committee to be questioned as an accused on 26 April 2005 at 3 p.m., and issued a search warrant in respect of her, thus her name was put on a wanted list.

  15. On 26 April 2005 at 3.08 p.m. police officers apprehended the first applicant in the Kolyvanskiy District Court of the Novosibirsk Region, 50 km away from Novosibirsk. The police officers served her with the investigator’s order for her enforced attendance for questioning on the premises of the Novosibirsk Investigative Committee. However, she was taken directly to a temporary detention facility (“the IVS”) of the Dzerzhinskiy district police station of Novosibirsk.

  16. The investigator went to the IVS and detained the first applicant for forty-eight hours while she applied for court authorisation of her pre-trial detention. The record of the first applicant’s arrest was drawn up at 5.50 p.m.

  17. On 27 April 2005 at 4.10 p.m. the investigator informed the first applicant of the charges against her and questioned her as a suspect in the presence of her legal counsel.

  18. The District Court’s refusal to detain the first applicant, and her release

  19. On 28 April 2005 at 12 noon the Tsentralniy District Court of Novosibirsk (“the District Court”) dismissed the investigator’s application for the first applicant’s detention as unfounded. The District Court noted that the first applicant had a permanent place of residence and, as the head of three commercial companies, had a permanent occupation. She had not been properly informed of the obligation not to leave town. The District Court held that the investigator had not properly sent the summonses for the first applicant to appear on 11 and 18 April 2005. The District Court also dismissed as unsubstantiated an argument raised by the investigator that the police had not found the first applicant in any of her apartments. In addition, the court noted that the criminal case against the first applicant had been closed on two occasions owing to a lack of corpus delicti. The District Court considered that the first applicant had not been hiding from the investigating authorities, and rejected the application for her to be placed in detention.

  20. After the District Court had pronounced its decision, the police took the first applicant back to the IVS, where she spent another three hours in a cell before being released at 2.59 p.m.

  21. The first applicant’s attempts to challenge the lawfulness of her deprivation of liberty

  22. Referring to Article 125 of the Russian Code of Criminal Procedure, the first applicant challenged the actions of the investigator and the policemen before the District Court. She complained, inter alia, that forcibly bringing her before the investigator as a witness on 1 April 2005 had been unlawful, because the investigator had not summoned her previously. She also complained about her arrest and detention on 26 and 27 April 2005. The investigator’s orders for her enforced attendance and a search in respect of her had been unlawful, since she had had a permanent place of residence; the investigator had sent no summons and she had not been hiding from the investigating authorities, as established by the court decision of 28 April 2005. Lastly, the first applicant complained about her belated release on 28 April 2005. She argued that her constitutional right to liberty had been violated by the above measures.

  23. By final decisions of 8 August, 23 November and 7 December 2005 the Novosibirsk Regional Court refused to examine the first applicant’s complaints on the merits. The court found that her complaints could be examined during the criminal proceedings against her, as by then her case had been sent for trial.

  24. Outcome of the criminal proceedings against the first applicant

  25. The charges against the first applicant were joined to two criminal cases. As regards the first criminal case, within the framework of which she had been detained from 26 to 28 April 2005, on 8 February 2010 the Novosibirsk Regional Court closed the case on exonerating grounds for lack of corpus delicti, and reiterated the first applicant’s right to rehabilitation. It appears that on 11 April 2013 an action initiated by the first applicant for compensation in respect of damage caused by her unlawful criminal prosecution was allowed in part.

  26. On 5 April 2010 the Novosibirsk Regional Court convicted the first applicant in respect of one charge in the second criminal case against her, and gave her a suspended sentence.

    1. Other disputes

  27. The applicants were involved in a housing dispute. The first applicant also participated in various sets of civil proceedings.

    1. RELEVANT DOMESTIC LAW AND PRACTICE

    1. The Code of Criminal Procedure

  28. In accordance with the Code of Criminal Procedure (“the CCrP”), any witness is obliged to appear for questioning when summoned by an inquirer (an officer involved in investigative activities), an investigator or a court (Article 56 § 6 (1)).

  29. If a suspect, an accused, a witness or a victim does not obey a summons to appear without a good reason and his or her location is known, the investigator may order that he or she be forcibly brought before the relevant authority by the police (Article 113). If the location of a suspect or an accused is unknown, the investigator may order the police to search for him or her. The accused, if found, may be arrested and placed in detention if there are reasons for such a measure which are established by law (Article 210).

  30. A court decision dismissing an investigator’s application...

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