CASE OF ROZHKOV v. RUSSIA (No. 2)

1. The case originated in an application (no. 38898/04) 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 Yevgeniy Ivanovich Rozhkov (“the applicant”), on 28 November 2002 about various domestic proceedings. Later on, in particular in 2006, he also lodged complaints under Articles 5 and 8 of the Convention in relation to the criminal proceedings pending against him.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3. The applicant complained, in particular, of two instances of alleged unlawful and disproportionate deprivations of liberty and a search, both carried out in 2006.
4. On 9 January 2009 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1966 and lives in Belgorod.
A. Criminal proceedings against the applicant and his first arrest
6. The applicant had a university degree in law; he did not seek admission to the Bar as an advocate ( адвокат ). He made his living as a registered private entrepreneur providing legal services. He worked for and later managed Vityaz Arbitration Bureau ( арбитражное бюро «Витязь» ), a private legal entity in the town of Belgorod. In April 2005 the applicant undertook to provide legal services to a private company in relation to administrative - offence proceedings against it. The company issued two originals of an authority form for the applicant.
7. According to the applicant, one original was inserted in the file of a then pending case before a commercial court; the other one was used in submissions before the Chief Fire Protection Inspector.
8. In June 2005 criminal proceedings were instituted against the applicant on suspicion of forgery of the administrative - offence record (“the offence record”) in the above case. According to the authorities, the applicant had added a handwritten note to the record which said, “We want counsel to be present during the compiling of the offence record”, and modified the date on which a copy of the record had been handed over to the defence.
9. Up until 21 June 2005 the official database had Vokzalnaya Street as the applicant ’ s registered residential address. It appears that before or after that date, the applicant moved from his flat ( on Vokzalnaya Street) to reside in his mother ’ s flat in the same town ( on Kostyukova Street). He notified the residence registration office about that change.
10. The investigator dealing with the case issued a summons ( sent to the applicant ’ s address on Vokzalnaya Street) requiring his attendance at her office on 11 July 2005 in order to carry out investigative measures. On 8 July 2005 a police officer reported that he had not delivered the summons since nobody had answered the door at that address.
11. On 13 July 2005 the applicant was informed of the decision to institute criminal proceedings against him. On the same date, Investigator T. interviewed the applicant, who added handwritten comments to the interview record. It was mentioned in the interview record that the applicant was (temporarily) residing in Shagarovka village; the address on Vokzalnaya Street was mentioned as his official residence; the record also contained a note of the telephone number provided by the applicant.
12. Further interviews were scheduled for 15 and 19 July 2005, when the applicant refused the services of a legal-aid lawyer, Y. He also refused to sign an undertaking to appear at subsequent interviews when requested by the investigator.
13. Subsequently, the case was reassigned. On 12 September 2005 a new investigator in charge of the case made telephone calls to the number which had been previously given by the applicant. The applicant abruptly put an end to the conversations.
14. On 13 September 2005 the investigator called again and talked to the applicant ’ s wife, who refused to assist the authorities in delivering the summons to the applicant. However, she clarified that the applicant was residing at his mother ’ s flat ( on Kostyukova Street). According to the Government, this address was different from the one he had previously given to the investigating authority.
15. On 21 September 2005 the investigator interviewed the applicant ’ s wife, who stated that the applicant was living on Kostyukova Street and had been residing in Shagarovka during the summer.
16. On 27 September 2005 the investigator issued a decision, under Article 113 of the Code of Criminal Procedure ( “the CCrP ” ) (see paragraph 50 below), ordering that the applicant be brought before her on 3 October 2005 at 10 a.m. It was noted that the applicant resided at his mother ’ s address and had previously failed to comply with summonses.
17. A similar decision was then issued on 3 October 2005, apparently, because the decision of 27 September 2005 had not been enforced.
18. On 21 October 2005 the chief officer of the investigating authority issued a decision, under Article 210 of the CCrP (see paragraph 52 below), requiring that measures be taken to locate the applicant. The decision read as follows:
“On several occasions the suspect was summoned for the purpose of investigative measures ... but failed to appear, without reference to any valid excuse. The measures for establishing his current whereabouts have not produced any positive results. The investigating authority has reason to consider that the suspect is taking action to flee prosecution ... ”
19. On 25 January 2006 the police talked to the applicant ’ s mother, who provided information about the applicant ’ s office address. At around 10.30 a.m. the police arrived there. The applicant was informed that his name was on the list of wanted persons and that he was to follow the police officer in order to be taken before the investigator with a view to enforcing the decision of 21 October 2005.
20. According to the applicant, despite having requested it, he was not shown any official authorisation for such an order. In reply to his refusal to comply, the officers warned him that they would employ force. Thus, he was compelled to follow them to the police station to be taken before the investigator. The latter explained that she was not in possession of the case file at that time. At the investigator ’ s request, the applicant gave a written undertaking to appear before her on 6 February 2006. No other investigative measures were taken on 25 January 2006 in relation to the criminal case. The applicant left the Investigations Unit at around 1 p.m.
21. It is unclear whether the interview on 6 February 2006 took place.
22. Subsequently, the applicant brought proceedings under Article 125 of the CCrP complaining of having been deprived of his liberty on 25 January 2006 and also about the decision of 21 October 2005. By a judgment of 21 August 2006, the Sverdlovskiy District Court of Belgorod rejected his claim. It held as follows:
“The court dismissed as having no legal basis [the applicant ’ s] allegation that the circumstances of the case required the drawing up of an arrest record under Article 92 of the CCrP. Such a record ‘ may be ’ drawn up (that is to say it is not an obligation) if there are grounds cited in Article 91 of the Code ...
Article 92 of the Code contains strict rules concerning arrest and detention of a suspect. Following escorting to the competent official, it is necessary to draw up, within three hours, an arrest record. It should indicate the dates and that notification of the procedural rights has been made. [The applicant] was present in the police station and the Department of the Interior offices for two and a half hours to clarify some details relating to the investigation of the criminal case and to take a decision concerning the pending request regarding [the applicant ’ s] whereabouts. After this he was free to go. Thus, the court does not accept that the applicant was held within the meaning of Article 91 of the Code.
Therefore, it was not incumbent on the escorting officer or the investigator to provide counsel, to apprise [the applicant] of his rights or to compile an arrest record.
Under Article 5 of the CCrP, arrest is defined as a measure of procedural compulsion used by an enquiring or investigating officer for a period not exceeding forty-eight hours after the actual taking of the person into custody on suspicion of a criminal offence ...
[The arresting officer] was a law- enforcement officer and thus the court has no doubts that his actions concerning [the applicant ’ s] escorting to the police station and then to the Department of the Interior were within the scope of his functional responsibilities.”
23. The applicant appealed, arguing as follows. While agreeing with the court that the situation did not fall within the ambit of “escorting” under Article 113 of the CCrP, he insisted that the court, in substance, had denied the fact of his “ deprivation of liberty” and had failed to cite another applicable statutory basis for it. In particular, the Police Act could not supply a valid basis since it only concerned escorting for identification purposes. In the applicant ’ s view, Article 92 was applicable and thus the non-observance of its requirements (namely, the drawing up of an arrest record and notification of procedural rights) disclosed unlawfulness. The reference to three hours for drawing up the record did not imply that there had not been “deprivation of liberty” if a person was held for less than three hours, or that Article 92 of the CCrP would not apply.
24. On 4 October 2006 the Belgorod Regional Court upheld the judgment in the following terms:
“The available material and testimonies do not disclose that the applicant was restricted in his right to liberty and personal security. The court rightly concluded that the investigator had lawfully issued the decision to determine the applicant ’ s whereabouts. The police had acted on the basis of the investigator ’ s decision, the enforcement of which required [the applicant ’ s] escorting to the police. Thus, the police ’ s actions could not be declared unlawful ...
[The applicant] was kept in the police station and before the investigator for less than three hours, which means that he was not ‘ arrested ’ [or] ‘ detained ’ within the meaning of Article 92 of the CCrP.”
25. On an unspecified date in February or March 2006, the investigation was suspended. It was resumed on 31 March 2006. The applicant was summoned for an interview with Investigator R. “ on 7 March 2006 at 3 p.m ”. According to the applicant, he received the summons only on 7 April 2006. It turned out later on that there had been a mistake in the summons: the interview was planned for 7 April 2006.
26. On 14 April, 23 May and 1 June 2006 the investigator issued orders for the applicant to be taken to the investigating authority (Article 113 of the CCrP). According to the Government, the police did not enforce these orders since the applicant was not present at his residential and office addresses.
27. On 28 June 2006 Investigator U. ordered that the applicant be brought before him on 5 July 2006 at 11 a.m.
28. On 1 July 2006 Investigator B. ordered that the applicant be brought before him on 7 August 2006 at 10 a.m. It was indicated that the applicant had previously failed to comply with summonses (on unspecified date(s)), most recently by referring to an illness but failing to submit any related document.
29. On 27 July 2006 the chief investigating officer came to the applicant ’ s office and interviewed him. The applicant made a written statement concerning the criminal case. It appears that the investigating officer issued summonses for further interviews to be held on 28 and 31 July 2006.
30. According to the applicant, on the same day he gave a written note to the officer indicating that he would not be able to attend on account of his state of health. The applicant did not attend the interview on 28 July 2006. It also appears that the applicant did not attend the interview on 31 July 2006.
31. A further decision to bring the applicant in for interview was issued on 1 November 2006.
32. On 2 November 2006 Investigator B. issued a decision ordering the authorities to determine the applicant ’ s whereabouts and suspending the investigation.
33. A further decision to bring the applicant in for interview was issued on 7 November 2006.
34. On 30 November 2006 the deputy town prosecutor ordered the resumption of the investigation.
35. On 22 December 2006 the chief investigating officer issued an order indicating that the applicant had failed on several occasions without a valid excuse to attend interviews with the investigator (s). Thus, he ordered that the applicant be brought before him on 25 December 2006 at 3 p.m.
36. On 25 December 2006 the police arrived at the applicant ’ s office at around 2.45 p.m. and compelled him to follow them to the police station instead of the Investigations Department, which was situated elsewhere. At the police station, the applicant was locked in a room and then provided with a copy of the order of 22 December 2006. The applicant was again informed, in the presence of counsel, of his rights and the decision to carry out a forensic examination. The applicant was interviewed and stated that he had received the summons for an interview scheduled in September or October 2006, but could not come on account of his illness and had informed the investigating authority accordingly; he had not submitted any medical certificate because, according to him, “it [had been] his constitutional right not to do so ”. It is unclear whether the applicant left the police station at 5 or 7 p.m.
37. According to the Government (who referred to the police station ’ s logbook), the applicant was kept in the police station without being locked up between 3 and 4 p.m. and was then taken before the investigator. The Government submit that the applicant was in one of the offices and that the building entrance door was equipped with an electronic lock for security measures.
38. The applicant brought proceedings under Article 125 of the CCrP complaining about his arrest on 25 December 2006. By a judgment of 15 January 2007, the District Court rejected his claim. The court held that the applicant had not been arrested, only compelled to appear before the investigator. The court also indicated that it was not possible to challenge the police actions under Article 125 of the Code. On 21 February 2007 the Regional Court upheld that judgment.
39. On 30 May 2007 the authorities discontinued the criminal proceedings against the applicant due to the expiry of the statutory prosecution period. Apparently, on an unspecified date this decision was quashed. On 1 November 2010 the case against the applicant was discontinued due to the absence of corpus delicti. The applicant was informed that he was entitled to claim compensation from the State (Chapter 18 of the CCrP).
C. Search of the offices of Vityaz Arbitration Bureau
40. It appears that the applicant ’ s wife was a private entrepreneur and managed the Vityaz Arbitration Bureau. In October 2005 she employed the applicant as a legal consultant. It appears that on an unspecified date he was appointed as the managing director of the firm.
41. According to the applicant, following a strained situation at home vis-à-vis his mother and wife on account of the pending criminal investigation against him, he temporarily moved into his office, using part of it as a dwelling. The office had electricity and heating facilities; it was accessible between 6 a.m. and 10 p.m. Apparently, the applicant did not notify the investigating authority of this change in his personal situation.
42. On 13 October 2006 the investigator in charge of the criminal case against the applicant issued a warrant authorising the search of Vityaz ’ s offices, referring to Article 182 of the CCrP (see paragraph 57 below). The investigator indicated that a forensic examination of the applicant ’ s handwriting was necessary. For this, it was necessary to seize handwriting samples of the applicant and the original of the authority form issued to him by the client private company (see paragraph 6 above). In the investigator ’ s view, these documents could be found at the premises of Vityaz Arbitration Bureau.
43. According to the applicant, on 13 October 2006 several officers, including the investigator, arrived in the office. They allowed the applicant to read the search-and-seizure order. He made no request for a lawyer to be present during the search. The officers then carried out the search in the presence of attesting witnesses and examined the applicant ’ s medical file and asked him questions about the information contained therein.
44. The applicant sought judicial review of the search-and-seizure order and the manner in which it was implemented.
45. By a judgment of 23 October 2006 the Sverdlovskiy District Court of Belgorod dismissed the claims. The court held as follows:
“Under Article 50 of the CCrP a suspect, accused or another person on his or her instructions may retain counsel. When requested, an [officer involved in a pre ‑ investigation inquiry ], investigator, prosecutor or a court shall appoint counsel.
Before the beginning of the search [the applicant] made no request for counsel while having had access to the search order ...
Under [Articles 38 and 182 of the CCrP] it is within the investigator ’ s purview to decide whether a search is opportune and, if so, to issue the relevant order, except for a search of residential premises. It is also up to the investigator to decide which documents or other evidence are important for the case ...
[The applicant ’ s] allegation that the office ... was his ‘ abode ’ is unsubstantiated, within the meaning of Article 139 of the CCrP ... Thus there was no legal requirement to obtain a court order for the search.”
46. On 29 November 2006, following an appeal by the applicant, the Belgorod Regional Court upheld the judgment, endorsing its reasoning.
II. RELEVANT DOMESTIC LAW AND PRACTICE
47. Article 91 of the CCrP concerns the arrest procedure ( задержание ) in a criminal case. An officer involved in a pre-investigation inquiry or an investigator is empowered to arrest a person under suspicion of a criminal offence punishable by a prison term in the following circumstances: where the person has been apprehended during or immediately after committing the offence; where a crime victim or an eyewitness has identified the person as the author of the crime; where manifest evidence of the crime has been discovered on the person ’ s body, clothes, belongings or in his or her residence (paragraph 1). In other situations (paragraph 2) disclosing suspicion against a specific person, it is possible to arrest him or her in a situation where he or she has attempted to flee; where the suspect has no fixed place of residence; where his identity has not been established; or where a prosecutor or an investigator has applied for judicial authorisation to remand the suspect in custody ( заключение под стражу ). Article 92 of the CCrP requires that following the escorting of the person before the pre ‑ investigation inquiry authority, the investigator or the court, it is necessary to draw up, within three hours, an arrest record and to make a record that the arrestee has been apprised of his or her procedural rights.
48. Under Article 111 of the CCrP, an investigator or another authority may apply a preventive measure in order to secure the proper course of the proceedings. Such measures include an undertaking to appear, an order to be brought before the relevant authority or officer or a restraint order in respect of property.
49. Article 112 of the CCrP provides that, where necessary, an undertaking to appear may be sought from a suspect or an accused person. Such an undertaking is an obligation to appear on time following a summons from an investigator, a prosecutor or a court, as well as the obligation to notify the authorities without delay of any change of place of residence. The person concerned should be informed of the consequences attached to a violation of the above undertaking.
50. Under Article 113 of the Code, if a suspect does not comply with a summons without a valid excuse, he or she may be brought before the relevant authority or officer. The person concerned should be notified of such an order before its execution.
51. In its decision no. 63-O-O of 24 January 2008 the Constitutional Court indicated that it was up to the court in each individual case to decide whether a particular action by an investigating authority in pending criminal proceedings (including an order to bring a person before the competent authority) affected the applicant ’ s rights to the extent that it would be impossible to remedy the alleged violation at a later stage. If so, an action under Article 125 of the CCrP in parallel with the pending criminal proceedings should be available.
52. Article 210 of the CCrP provides that, when a suspect ’ s whereabouts are not known, an investigator may require that measures be taken to locate him or her. It is incumbent on the investigator to ascertain, with reference to the evidence, that the suspect ’ s whereabouts are actually not known and to inform the suspect ’ s counsel of the decision taken (Constitutional Court decision no. 26-O of 18 January 2005).
53. Also under Article 210 of the CCrP, as soon as a suspect is located, he or she can be detained ( задержан ) in compliance with the procedure mentioned in Chapter 12 of the CCrP (that is to say Articles 91-96 of the CCrP, see paragraph 47 above).
54. Article 188 of the CCrP provides that a witness or a victim can be summoned for an interview by way of a summons ( повестка ), indicating the date, time and place of the interview, as well as the consequences of failing to appear without a valid excuse. The summons must be handed over to the person being summoned, or transmitted by another means of communication. If the person is temporarily absent, the summons should be handed over to an adult family member, a person in a position of responsibility at the person ’ s workplace or another person or organisation who can guarantee that the summons will be handed over to the person being summoned. The person being summoned must appear before the summoning official or inform that official in advance of the reasons for not appearing. In the absence of valid reasons, the person may be taken before the official.
55. Section 11 of the Police Act (Federal Law no. 1026-1 of 18 April 1991), as in force at the relevant time, listed the police powers, including in relation to the application of a measure of compulsion in respect of an individual, for example by way of arrest, escorting to the police station or detention. It provided that the police had the authority to arrest a person in relation to an offence under the Code of Administrative Offences if that person was evading a custodial sentence that had been imposed for a criminal offence; if he or she was suspected of a criminal offence; or where a court had issued a detention order in respect of that person.
56. Pursuant to section 14 § 2(4) of the 2011 Police Act (Federal Law no. 3-FZ of 7 February 2011), the police has the authority to arrest and retain until handing over to the competent authority the person who has been subject to measure aimed at locating him or her.
B. Search procedure in criminal cases
57. Under the CCrP an investigator is competent to authorise any measures useful in the course of the investigation except when a court order or prosecutor ’ s approval are necessary, for instance for a search of an abode (Articles 38, 164 and 182). Private information exposed during the search should not be divulged (Article 182 § 7).
58. Article 139 of the Criminal Code defines abode or residential premises as an individual building officially classified and used for temporary or permanent residence or other premises not classified as a residence but used as a temporary residence.
59. In its decision no. 439-O of 8 November 2005, the Constitutional Court held that the Constitution guaranteed the confidentiality of information relating to the provision of legal assistance. Such confidentiality was part of the notion of legal professional privilege aimed at protecting the information received by counsel from his or her client. Legal professional privilege must be protected in criminal and other (civil, constitutional or administrative) court proceedings. Pursuant to the Advocates Act, a search in respect of an “advocate” ( адвокат ) ( either his or her residential or office premises) is subject to a prior court order which should indicate the exact object of and grounds for such a search. The Constitutional Court considered that, despite the absence of a specific provision, the Code of Criminal Procedure should be interpreted as requiring a prior court order authorising a search of the office premises of an advocate or advocates ’ office ( адвокатское образование ).
60. Information relating to the criminal activity of an advocate ( адвокат ) is not covered by legal professional privilege ( адвокатская тайна ) that advocates have. Thus, the requirement of a court order is not a privilege afforded to an advocate; it relates instead to the provision of legal assistance by an advocate to his or her client (decision no. 629-O-O of 22 March 2012 by the Constitutional Court ).
61. While the constitutional requirement of a court order for carrying out a search of an “abode” does not extend to the offices of a legal entity, which fall outside the scope of the notion of “abode”, a decision to order a search should contain sufficient reasons. An ex post facto judicial review of the above decision and the manner in which the search was carried out should be made available (decision no. 971-O-O of 14 July 2011 by the Constitutional Court ).
62. Under Article 327 of the Criminal Code, forgery of official documents is punishable, depending on the specific legal classification, by a fine or a prison term of up to two years.
I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
63. The applicant complained that he had been deprived of his liberty on 25 January and 25 December 2006 in an unlawful and arbitrary manner and that the courts had failed to provide him with adequate redress.
64. The Court will examine the above complaints under Article 5 of the Convention, which reads, in the relevant parts, 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;
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful ... ”
65. The Government submitted that the applicant had not exhausted domestic remedies in respect of his complaint under Article 5 § 4 of the Convention because he had not sought judicial review of the decision to determine his whereabouts and the decision to bring him before the investigator (see paragraphs 18 and 35 above). The Court does not need to address this argument. Given the short duration of the deprivations of liberty on 25 January and 25 December 2006, the applicant did not have time to “take proceedings” by which his release could be ordered. Thus, no issue arises in the circumstances under Article 5 § 4 of the Convention. Accordingly, this complaint of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
66. As to Article 5 § 1 of the Convention, Court notes that this complaint 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.
67. The Government submitted that in July 2005 the applicant had been informed of the criminal investigation pending against him and that he had been summoned for an interview on 11 July 2005. The relevant summonses could not be delivered. An interview had been held on 13 July 2005. The summonses for further interviews had been issued on 12 and 13 September 2005. A warrant had been issued to establish his whereabouts.
68. As to the events of 25 January 2006, the Government submitted that the circumstances of the case disclosed lawful grounds for escorting the applicant to the police station and then before the investigator. Following his arrival at the police station and then his appearance before the investigator, the applicant had not been formally taken into custody as a suspect (Article 91 of the CCrP) and thus no arrest record had been drawn up.
69. Regarding the events of 25 December 2006, the Government argued that during that year the applicant had received summonses but failed to appear before the investigator without a valid excuse. Thus, the investigator had reasons for issuing between April and November 2006 orders to escort the applicant under Article 113 of the CCrP. The applicant ’ s whereabouts had been determined on 25 December 2006 and he had been escorted to appear before the investigator. He had been kept in one of the offices without being locked up. The building entrance door had been equipped with an electronic lock as a security measure.
70. The applicant submitted that the decision to institute criminal proceedings had had his office address noted thereon; that before September 2005 he had not received any summons and the authorities had not made any specific effort to establish his whereabouts even when the need had arisen. The decision to put his name on the wanted list had been unlawful. Being escorted by the police to appear before the investigator had also been unlawful since before that point he had not received any summons and thus could not have failed to comply with them – he had, after all, been taken to the police station. He had been “psychologically” compelled to follow the police on 25 January 2006. Furthermore, nothing had prevented the authorities from handing over the summons in the applicant ’ s office that day, without taking him to the police and/or an investigator. In fact, no investigative measures had been planned or carried out on that date.
71. The applicant argued that under Russian law a summons for an interview had to be made in writing. There was no evidence that, prior to the warrant aimed at determining his whereabouts, he had been summoned for any specific interviews and had failed to attend on the relevant dates. In fact, he had appeared before the investigator on three occasions in July 2005. Thus, the warrant had not been justified.
72. Prior to his escorting before the investigator he had not received any summons for interview and had not failed to comply with any such summonses.
73. As to the events of 25 December 2006, the Government had not specified the interview dates for which he had allegedly been summoned in 2006. The applicant had not received any such summonses.
74. The Court reiterates that Article 5 § 1 protects the physical liberty of the person (see Engel and Others v. the Netherlands, 8 June 1976, § 58, Series A no. 22; Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39; and Raimondo v. Italy, 22 February 1994, § 39, Series A no. 281 ‑ A). In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 of the Convention, the starting-point must be his concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the impugned measure. The purpose of measures by the authorities depriving applicants of their liberty no longer appears decisive for the assessment of whether there has in fact been a deprivation of liberty. To date, the Court has taken this into account only at a later stage of its analysis, when examining the compatibility of the measure with Article 5 § 1 of the Convention. Article 5 § 1 may also apply to deprivations of liberty of a very short length (see Creangă v. Romania [GC], no. 29226/03, §§ 91-93, 23 February 2012).
75. Detention is authorised under the second limb of sub ‑ paragraph (b) of Article 5 § 1 to “secure the fulfilment” of an obligation prescribed by law. It concerns cases where the law permits the detention of a person to compel him or her to fulfil a specific and concrete obligation incumbent on him or her, and which he or she has until then failed to satisfy (see Engel and Others, cited above § 69; Guzzardi, cited above § 101; A.D. v. Turkey, no. 29986/96, § 20, 22 December 2005; and Lolova-Karadzhova v. Bulgaria, no. 17835/07, § 29, 27 March 2012 ).
76. A wide interpretation of sub-paragraph (b) of Article 5 § 1 would entail consequences incompatible with the notion of the rule of law from which the whole Convention draws its inspiration (see Iliya Stefanov v. Bulgaria, no. 65755/01, § 72, 22 May 2008). That provision therefore does not justify, for example, administrative internment meant to compel a citizen to discharge his general duty of obedience to the law (see Engel and Others, cited above, § 69, and Schwabe v. Austria, 28 August 1992, § 73, Series A no. 242 ‑ B ). In order to be covered by Article 5 § 1 (b), the arrest and detention must also aim at or directly contribute to securing the fulfilment of an obligation and not be punitive in character (see Osypenko v. Ukraine, no. 4634/04, § 57, 9 November 2010, and Soare and Others v. Romania, no. 24329/02, § 236, 22 February 2011 ). In addition, it is necessary that the nature of the obligation within the meaning of Article 5 § 1 (b) whose fulfilment is sought must in itself be compatible with the Convention. As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see Osypenko, § 57, and Lolova-Karadzhova, § 29, both cited above ).
77. Lastly, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty. The nature of the obligation arising from the relevant legislation including its underlying object and purpose, the person being detained and the particular circumstances leading to the detention as well as its duration are relevant factors in drawing such a balance (see Iliya Stefanov, § 72, and Soare and Others, § 236, both cited above ).
78. Article 5 § 1 of the Convention requires that any deprivation of liberty be “lawful”, which includes the condition that it must be effected “in accordance with a procedure prescribed by law”. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Witold Litwa v. Poland, no. 26629/95, §§ 72-73, ECHR 2000 ‑ III ).
(b) Application of these principles in the present case
79. The Court considers that the escorting to and presence of the applicant in the police station on 25 January and 25 December 2006 amounted to “deprivation of liberty” (see, in a similar context, Navalnyy and Yashin v. Russia, no. 76204/11, § 92, 4 December 2014). Nothing suggests that, as a matter of fact and/or given the requirements of Russian law, on 25 January 2006 the applicant could freely decide not to follow the police officers to the station or, once there, leave it at any moment without incurring adverse consequences (compare Creangă, cited above, §§ 94-98). The applicant did express his objection to the police officer ’ s order to follow him to the station but was then taken there by the police. The Court considers that throughout the events on that day there was an element of coercion which, notwithstanding the short duration of this procedure, was indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see Shimovolos v. Russia, no. 30194/09, § 50, 21 June 2011). These considerations apply, a fortiori, to the events on 25 December 2006 in view of the coercive nature of the procedure under Article 113 of the CCrP that was used.
80. The deprivation of liberty was justified only if it complied with one of the permissible grounds for a deprivation of liberty listed in sub ‑ paragraphs (a) to (f) of Article 5 § 1. Given the context of the case, only subparagraphs (b) and (c) are prima facie relevant.
81. The Court will deal with the events on 25 January and 25 December 2006 in turn.
82. The applicant ’ s argument was threefold: (i) he had not received any summonses for any specific interviews and thus there had been no good reason to launch a procedure to determine his whereabouts; (ii) by implication, there had been no good reason to escort him on 25 January 2006 and the police had had no statutory authority to take him to the police station; (iii) his escorting to and his subsequent presence in the police station had been unlawful because no arrest record under Article 92 of the CCrP had been compiled.
83. It appears that under the applicable rules of criminal procedure, notifications or summonses to defendants had to be made in writing (see also paragraph 54 above, which, however, concerns victims and witnesses ). The Court is not satisfied on the basis of the available material that since September 2005 any such summonses for a specific date, time and place had been delivered to any of the known addresses at which the applicant had resided. However, even accepting that the summonses were properly issued, the Court gives credence to the applicant ’ s arguments relating to the police powers of arrest in the circumstances (under the Police Act or the CCrP ( for instance its Articles 91 and 92 ) ) and the requirement – under Russian law and/or the Convention itself – to have a written record for any deprivation of liberty.
84. The Court notes that the applicant ’ s “deprivation of liberty” (the escorting and the subsequent presence in the police station) on that day related to (but was not ordered by) the investigator ’ s order under Article 210 of the CCrP (see paragraphs 18 and 52 above) issued to determine the applicant ’ s whereabouts. This provision furnished a legal basis for an individual ’ s detention after his or her escorting before the competent authority and, if applicable, for continued detention on the basis of a court order.
85. The Court observes that following the identification of a person ’ s whereabouts the authorities had the option of immediately escorting that person before the competent authority dealing with the criminal case.
86. If the procedure under Article 91 § 2 and Article 92 had been applicable (see paragraph 53 above), as argued by the applicant, the fact remains that an arrest record was not compiled. It appears that under Russian law such a record had to be compiled irrespective of the actual length of the deprivation of liberty. The reference to three hours was meant to delimit the time frame rather than the obligation as such ( see, mutatis mutandis, Sidikovy v. Russia, no. 73455/11, § § 92 and 216, 20 June 2013).
87. Should it be accepted that the “escorting” did not necessarily have to be documented within and in compliance with the detention procedure under Article 92 of the CCrP (requiring, inter alia, the compiling of an arrest record), the fact remains that neither the domestic courts nor the Government before the Court suggested another legal basis for escorting the applicant. The national courts did not establish that the procedure under Article 113 of the CCrP (see paragraph 50 above) was applicable to the events of 25 January 2006. It has not been suggested, and the Court does not find, that the police actions on that date fell within the scope of powers conferred on them under the Police Act at the time (see paragraph 55 above).
88. It follows that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant on 25 January 2006.
- Justification under sub - paragraph (b) of Article 5 § 1
89. The Court will first examine whether the applicant ’ s detention was justified under the second limb of Article 5 § 1 (b) “in order to secure the fulfilment of any obligation prescribed by law”. It is necessary for a period of detention to fall under this ground for deprivation of liberty that the law permits that the detention of the person concerned to compel him or her to fulfil a specific and concrete obligation incumbent on him or her, which he or she has until then failed to satisfy (see Ostendorf v. Germany, no. 15598/08, § 90, 7 March 2013). Article 5 § 1 (b) of the Convention refers back to domestic law as the contents of the obligation, as well as to the procedure to be observed for imposing and complying with such an obligation.
90. The arrest on 25 December 2006 was ordered by the investigator under Article 113 of the CCrP, which authorised bringing a person before the relevant authority or officer where this person had failed to comply with summonses (see paragraph 50 above).
91. The Court will proceed on the assumption that Russian law did indeed contain an obligation on the suspected or accused person to appear before an investigating officer (see paragraph 54 above) (see, by way of comparison, Lykova v. Russia, no. 68736/11, §§ 78 and 80-82, 22 December 2015). As to the way in which such obligation became incumbent on the applicant (imposed or by operation of law), the Court observes that on 25 January 2006 the applicant signed a written undertaking to appear following summonses, as required under Article 112 of the CCrP (see paragraph 49 above). It is uncontested that this undertaking was valid throughout 2006.
92. Next, in determining whether the obligation incumbent on the applicant can be considered as sufficiently “specific and concrete” for the purposes of sub ‑ paragraph (b) of Article 5 § 1, the Court shall have regard to the obligations which it has previously considered as falling within the ambit of that ground for detention. It has found, for instance, that the statutory obligation to give evidence as a witness was sufficiently specific and concrete for the purposes of Article 5 § 1 (b) and could thus be enforced by detention in a police station (see, in particular, Iliya Stefanov, cited above, §§ 73-75, and Soare and Others, cited above, §§ 234-39). The same holds true for detention in order to enforce a statutory obligation to disclose one ’ s identity to the police (see, inter alia, Vasileva v. Denmark, no. 52792/99, §§ 35 and 38, 25 September 2003 ) and (proportionate) detention to secure a person ’ s presence at a court hearing (see Lolova ‑ Karadzhova, cited above, §§ 31-32 ). In the Court ’ s view, the “obligation” under Article 5 § 1 (b) must be strictly circumscribed.
93. Thus, prior to his arrest, the applicant must have failed to fulfil an obligation to appear before an investigating officer. In cases in which this type of obligation is at issue, it is sufficient if, having received the summonses, the applicant did not appear and did not provide a substantiated and valid excuse. Indeed, Article 113 of the CCrP itself linked the lawfulness of the “escorting” to the person ’ s previous failure to comply with summonses.
94. It appears that the applicant did not attend two interviews in July 2006 and an interview on an unspecified date in September or October 2006, referring to his state of health while submitting no medical certificate (see paragraphs 30 and 36 above). However, in the Court ’ s view, this fact alone was insufficient to justify the enforcement in late December 2006 of the order to escort him before the investigator. The available material before the Court does not disclose that during the weeks that preceded 25 December 2006 the authorities made any efforts to notify the applicant of any summonses to appear before an investigator for interviews at specific dates, times and places.
95. Accordingly, the obligation to appear before an investigating officer was not sufficiently “concrete and specific”.
96. It follows that the applicant ’ s escorting on 26 December 2006 was not justified under the second limb of Article 5 § 1 (b).
97. Having regard to the foregoing, the Court concludes that there has been a violation of Article 5 § 1 of the Convention as regards the applicant ’ s escorting on 25 December 2006.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
98. The applicant complained of a violation of Article 8 of the Convention on account of the search of his office. Article 8 reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
99. The applicant argued that a search of his office required, under Russian law, a court order like for a search of one ’ s “abode”. In addition, under Russian law a space which was not a dwelling but was temporarily used as such fell within the scope of the domestic notion of “abode”. The applicant had been temporarily using part of the office as a dwelling.
100. The search had been unnecessary since the authorities had already had samples of his handwriting, for instance in the interview record (see paragraphs 20 and 29 above). The originals of the authority form could have been taken from the files concerning pending proceedings (see paragraph 7 above). The authority form had not been related to the determination of the charges against him.
101. During the search the authorities had breached the confidentiality of his medical documents in the presence of attesting witnesses. The latter, however, had not been summoned to appear before the judicial review court. While the applicant had not been an advocate ( адвокат ), he and his colleagues had provided legal advice to their clients. The investigator had also looked through various documents relating to his clients and their documents had fallen under “commercial, personal and other protected” types of confidentiality.
102. The Government submitted that the search of Vityaz ’ s offices had not required, under Russian law, a court order. An office had not been considered an “abode” under Russian law and thus a non-judicial order had been sufficient. The applicant had not been an advocate. This search had been aimed at the seizure of documents with the applicant ’ s handwriting on them. Before the search the applicant had been given a copy of the order and had not asked for a lawyer to be present during the search. Such a request had been made after the search had been completed. No medical documents had been seized during the search.
103. The Government argued that the search had pursued the legitimate aim of discovering and seizing evidence in a criminal case, specifically samples of the applicant ’ s handwriting. Under Russian law (Articles 38 and 182 of the CCrP) a search could have been authorised if there had been sufficient evidence that certain documents that had been relevant to a criminal case might have been found at a certain place. This decision had been lawfully taken by an investigator since the office had not fallen within the scope of “ abode ” mentioned in the Criminal Code (see paragraph 58 above). The applicant had been registered as residing at another address. He had had access to the text of the investigator ’ s decision before the search. The applicant had been present during the search. He had never been admitted to the Bar and thus could not rely on the Advocates Act.
1. Scope of the case and admissibility issues
104. Depending on the context of each case, the Court has previously classified search and seizure in respect of paper documents or other similar items as interference with “private life”, “correspondence” or “home” within their autonomous meanings under Article 8 of the Convention, or a combination thereof (see, among others, Niemietz v. Germany, 16 December 1992, §§ 28-33, Series A no. 251 ‑ B; and M.N. and Others v. San Marino, no. 28005/12, §§ 51-55, 7 July 2015 ).
105. The Court notes at the outset that nothing suggests that the investigating authority was made aware that the applicant had been temporarily using part of the office for dwelling purposes.
106. It remains that the search was carried out in the office of the legal entity where the applicant carried out his own business activities. It is noted that the applicant was clearly targeted by the search order that was issued in the framework of the criminal investigation in respect of him (see, by way of comparison, Sérvulo & Associados - Sociedade de Advogados, RL and Others v. Portugal, no. 27013/10, §§ 75-80, 3 September 2015). Both the domestic authorities and the respondent Government accepted that the applicant had been adversely affected by the impugned search and seizure. The Court considers that the circumstances of the case fell within the scope of Article 8 of the Convention.
107. The Court concludes that there has been an interference with the applicant ’ s right to respect for his “private life” and “correspondence”. Consequently, the Court finds it unnecessary to determine whether there has also been an interference with the applicant ’ s right to respect for his “home” as guaranteed by Article 8 § 1.
108. Lastly, the Court notes that this complaint 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.
109. It has to be determined whether the interference, as specified above, was justified under paragraph 2 of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question.
110. The applicant maintained that the search had not been in accordance with domestic law because it had not been ordered by a court. The Government submitted that the search had been ordered by an investigator on the basis of Articles 38 and 182 of the CCrP.
111. The Court reiterates that an “ interference ” cannot be regarded as “in accordance with the law” unless it has a basis in domestic law. The Court also reiterates that its power to review compliance with domestic law is limited, it being in the first place for the national authorities, notably the courts, to interpret and apply that law (see Buck v. Germany, no. 41604/98, § 37, ECHR 2005 ‑ IV ).
112. In the instant case, the Court notes that an investigator was empowered under the CCrP to order a search of non-residential premises. It observes that the domestic courts considered the search order to be lawful in terms of the said domestic law. There was no evidence that the premises could be classified under Russian law as an “abode”, thus requiring a court order for a search. The Court sees no reason to arrive at a different conclusion.
113. Furthermore, the applicant has not put forward any serious arguments relating to the essential aspects of legality in respect of the other aspects of the interference, specifically in relation to the manner in which the search and seizure were carried out.
114. Consequently, the interference was “in accordance with the law”.
115. The applicant also maintained that the search - and - seizure order had not pursued any legitimate aim because the documents seized had been readily available from other sources. According to the Government, the search had served the legitimate aim of identifying and collecting evidence in the criminal case. The Court is ready to proceed on the assumption that the order was issued with a view to finding and seizing documents that could be used for a handwriting assessment; this pursued an aim which was consistent with the Convention, namely the prevention of crime.
(c) Justification of the interference
116. Under the Court ’ s case-law, the notion of “ necessity ” implies that the specific “interference” corresponds to a “pressing social need” and, in particular, that this “interference” is proportionate to the legitimate aim pursued (see, among other authorities, Camenzind v. Switzerland, 16 December 1997, § 44, Reports 1997 ‑ VIII ).
117. In determining whether the interference is “necessary in a democratic society” the national authorities, and ultimately the Court, will take into account the margin of appreciation which is left to the Contracting States in a specific context. The exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly, and the need for them in a given case must be convincingly established (see Rotaru v. Romania [GC], no. 28341/95, § 47, ECHR 2000 ‑ V, and Funke v. France, 25 February 1993, § 55, Series A no. 256 ‑ A ). When taking measures to prevent disorder or crime or to protect the rights of others, the national authorities may consider it pertinent and opportune to resort to a search and seizure in order to obtain evidence of offences in certain circumstances, for instance, when it is otherwise impossible to identify the person guilty of the offence (see Buck, cited above, § 52).
118. The Court will assess whether the reasons adduced to justify such measures were relevant and sufficient and whether the proportionality principle was adhered to (see Funke, cited above, §§ 55-57, and Crémieux v. France, 25 February 1993, §§ 36-38, Series A no. 256 ‑ B ). As regards the latter point, the Court must first ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse. Secondly, the Court must consider the specific circumstances of each case in order to determine whether, in the particular case, the interference in question was proportionate to the aim pursued (see Camenzind, cited above, § 45). The criteria the Court has taken into consideration in determining this latter issue have been, inter alia : the severity of the offence in connection with which the search and seizure was effected; the manner and circumstances in which the order was issued, in particular with regard to the evidence available at that time; the content and scope of the order, having particular regard to the nature of the premises searched and the safeguards taken in order to confine the impact of the measure to reasonable bounds; and the extent of possible repercussions on the reputation of the person affected by the search (see Funke, § 57, and Camenzind, § 46, both cited above).
119. The Court notes the applicant ’ s arguments arising from the fact that the search was carried out in the office from which he provided legal services. It is noted in this connection that he had a law degree but was not a lawyer who enjoyed the protection of the Advocates Act and other pertinent legislation. The applicant has not substantiated his submission that under Russian law there was some form of confidentiality protection of the relationship between an individual who has not been admitted to the Bar (an “advocate” under Russian law, “ адвокат ” ) but provides legal advice and his or her client. In any event, it is doubtful that this factor can serve as a workable criterion for the purposes of delimiting the scope of the protection afforded by Article 8: virtually all professional and business activities may involve, to a greater or lesser degree, matters that are confidential, with the result that, if that criterion were adopted, disputes would frequently arise as to where the line should be drawn (see Niemietz, cited above, § 28). However, in the present case, it is not necessary to determine whether the principles concerning the legal profession and, specifically, “advocates” (see Michaud v. France, no. 12323/11, § 117, ECHR 2012) or those concerning a search of non-residential, business or similar premises should be applied. In the Court ’ s view, under either approach there has been a violation of Article 8 of the Convention for the following reasons.
120. As regards the proportionality of the measure, the applicant argued that the search of his business premises, which should have been regarded as a measure of last resort, had not been necessary to obtain samples of his handwriting and further the seizure of the original authority form had had no bearing on the determination of the criminal charge against him.
121. With regard to the safeguards against abuse provided by Russian legislation and practice in the case of searches like the one in the present case, the Court notes that such measures are not ordinarily ordered by a judge, except when they concern residential premises.
122. The Court has previously held that in the absence of a requirement of prior judicial authorisation, resulting in the investigating authorities having unfettered discretion to assess the expediency and scope of the search, the absence of a prior judicial warrant could, to a certain extent, be counterbalanced by the availability of an ex post facto judicial review dealing with issues relating to both the legality and proportionality of the measure and the manner in which it had been implemented (see DELTA PEKÁRNY a.s. v. the Czech Republic, no. 97/11, § 87, 2 October 2014 ). In addition, the domestic remedies should be capable of providing adequate redress, regard being had to the fact that the impugned interference has already occurred (ibid.).
123. In the present case, the Court is not satisfied that the judicial review adequately assessed the factual and legal elements pertaining to the proportionality assessment of the measure (see, by way of comparison, Abashev v. Russia, no. 9096/09, §§ 40-42, 27 June 2013, and Alim v. Russia, no. 39417/07, § 95, 27 September 2011). The court confined its assessment to the recognition of the investigator ’ s statutory prerogative to determine whether a search was “ opportune ” in the light of the interests of the investigation. Not having sufficient material at its disposal, the Court cannot determine whether the deficiency of review was the consequence of some defects in the legislation, as interpreted and applied by the courts at the material time, or merely arose on the facts of the case.
124. For its part, assessing the proportionality of the search and seizure to the legitimate aim pursued in the circumstances of the case, the Court observes that the applicant was a suspect in the criminal investigation, that the search was carried out in the context of this investigation, and that it was related to the offence of forgery of an administrative offence record. This was a minor criminal offence under Russian law (see paragraph 62 above; see, for comparison, Buck, cited above, § 47, which concerned a minor contravention of a road traffic rule).
125. Considering the content and scope of the search order, the Court finds that the decision was worded in clear terms. The scope of the order was limited to what was indispensable in the circumstances of the case. The Court has no reason to doubt that the authorities had a legitimate reason to consider that the relevant material could be found in the office where the applicant worked.
126. Whether or not the applicant was given an opportunity to present the relevant samples voluntarily and thus to avoid the search, it is reasonable to assume that the investigator might have reasons not to highlight his interest in evidence before being able to seize it. However, the fact remains that some handwritten documents were already available in the case file (see paragraphs 20 and 29 above).
127. As regards the original of the authority form, it does not appear that the applicant was ordered but refused to surrender this document to his client or the authorities dealing with the criminal case. Moreover, the Court sees no probative value that the original of the authority form might have had in relation to the allegation of forgery of the administrative offence record. It was not contested in the domestic proceedings that the applicant had been issued with an authority form to represent his client in court proceedings. Therefore, it has not been shown that the search in this respect achieved, in a proportionate manner, the presumably legitimate aim pertaining to the criminal investigation (see paragraph 115 above).
128. In sum, the Court considers that the search was carried out without sufficient grounds and was not shown to be “necessary in a democratic society”. There has therefore been a violation of Article 8 of the Convention.
129. In view of the above findings, the Court finds it unnecessary to examine the applicant ’ s remaining arguments relating to the manner in which the search was carried out.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
130. Lastly, the applicant also raised a number of complaints in relation to various domestic proceedings.
131. The Court has examined these complaints as submitted by the applicant. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
132. 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.”
133. The applicant claimed 500,000 euros (EUR) in respect of non-pecuniary damage.
134. The Government contested the claim.
135. Having regard to the nature of the violations found, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.
136. The applicant also claimed EUR 500 for the postal expenses incurred in the proceedings before the domestic authorities and the Court.
137. The Government contested the claim.
138. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards EUR 100 covering the costs under all heads.