CASE OF MANANNIKOV v. RUSSIA

1. The case originated in an application (no. 74253/17) 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 Aleksey Petrovich Manannikov (“the applicant”), on 17 April 2009.
2. The applicant was represented by Mr N. Zboroshenko, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.
3. On 7 November 2017 the complaints concerning the applicant ’ s involuntary internment, the removal of his counsel, the retention of his electronic devices and a restriction on his freedom of movement were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1956 and lives in Moscow.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Criminal charges against the applicant
6. On 14 April 2006 the applicant was charged with verbal insult of traffic police officers, an offence punishable with a fine or with up to one year ’ s correctional work (“the first criminal case”). On 2 July 2009 a justice of the peace of the Tsentralnyy Circuit in Novosibirsk found him guilty as charged and sentenced him to a fine. The applicant filed an appeal which was dismissed by the Tsentralnyy District Court in Novosibirsk on 27 September 2010. On 6 December 2010 the Novosibirsk Regional Court dismissed his cassation appeal.
7. On 8 October 2010 the applicant was charged with contempt of court and criminal libel of the judge who presided over the appeal proceedings in the first criminal case (“the second criminal case”). In his speech to the trial court and a blog post, he had accused her of misusing her office for political means. On 11 October 2012 the applicant was found guilty of contempt of court and sentenced to a fine. On 5 February 2013 the Supreme Court of the Russian Federation dismissed, in final instance, an appeal against the conviction.
B. Prohibition on leaving Novosibirsk
8. On 29 August 200 7 the investigator made the applicant sign an undertaking to stay in Novosibirsk for the duration of the proceedings in the first criminal case. He referred to the applicant ’ s alleged failures to appear for interviews.
9. In August 2008 the first criminal case was submitted for trial. As the sole guardian of his bed-ridden elderly mother, the applicant asked the trial judge to let him travel to Moscow to arrange her financial affairs. On 13 November 2008 his request was refused; the judge held that the application of the travel restriction was justified on account of the applicant ’ s previous failures to appear. Her decision was upheld on appeal by the District Court on 27 January 2009 and by the Regional Court on 16 March 2009. The Regional Court justified its decision in the following manner :
“Mr Manannikov stated at the hearing that, should the travel restriction be lifted, he would move freely in the Russian territory and also go abroad. Mr Manannikov also stated that he had always appeared at interviews with the investigator and court hearings and would continue to do so in the future.
His submissions confirm the fact that, if the travel restriction is lifted, Mr Manannikov could leave Novosibirsk which would hinder examination of the criminal case within a reasonable time. Accordingly, the appeal judgment ... is lawful, justified and well-reasoned; there are no grounds to set it aside.”
10. In February 2009 the applicant reiterated his request to be allowed to leave Novosibirsk. It was rejected by first the trial judge on 16 February 2009 and later by the District Court on 8 May 2009.
11. On 2 6 May 2011 an identical travel restriction was imposed on the applicant in the second criminal case, on the ground that he had allegedly missed an interview with the investigator earlier that month.
12. The travel restriction expired in 2013 after the proceedings in the second criminal case were terminated ( see paragraph 7 above ).
C. Removal and retention of electronic devices
13. On 12 October 2010 the applicant ’ s flat was searched in the framework of the second criminal case, allegedly to uncover evidence showing that he had written the blog post. The investigator located and removed his desktop and laptop computers, a memory stick, two CDs and a DVD. He examined the devices, copied the relevant contents onto a disk and put them sealed in the storage.
14. On 18 November 2010 the investigator refused the applicant ’ s request to make a copy of his application to this Court and supporting documents which were stored on his computer. He stated that “the investigation had no grounds to unseal physical evidence”.
15. The applicant applied for judicial review. On 23 December 2010 the Tsentralnyi District Court dismissed his application, holding that he would be able to make copies of any materials, including physical evidence, after the investigation had been completed.
16. On 21 February 2011 the Novosibirsk Regional Court upheld the District Court ’ s decision on appeal.
17. The electronics were returned to the applicant in 2013 after the conviction in the second criminal case had become final (see paragraph 7 above ).
18. The applicant retained counsel M. to represent him in the first and second criminal cases.
19. On 22 October 2010 the investigator decided to interview M. as an eye-witness to the offence of contempt of court that the applicant was charged with. M. refused to testify on the ground that she was the applicant ’ s lawyer. The investigator issued the decision to remove M. as the applicant ’ s counsel, relying on the legal provision that prevented witnesses from representing defendants in the same criminal case.
20. The applicant ’ s request for a judicial review of the investigator ’ s decision was unsuccessful. His complaint was rejected by the District Court on 11 February 2011 at first instance and on appeal by the Regional Court on 6 April 2011.
21. Legal-aid lawyer S. was appointed to represent the applicant. The applicant objected to his participation and insisted that M. should be allowed to represent him.
22. After the case was submitted for trial, the applicant complained to the trial court about a breach of his right to be defended by a lawyer of his own choosing. At the preliminary hearing on 1 July 2011, the Novosibirsk Regional Court accepted that the rights of the defence had been undermined by reason of the investigator ’ s failure to address the applicant ’ s objections to the participation of the legal-aid lawyer. The Regional Court returned the case to the prosecutor with the instruction to remedy the violation.
23. The prosecutor appealed. On 22 August 2011 the Criminal Panel of the Regional Court rejected the appeal. The Criminal Panel established that the investigator ’ s order had not been lawful or justified. As counsel M. had refused to testify, no conflict between the interests of the defendant and those of his representative could have arisen, and the investigator had not had any legal grounds to exclude her from the proceedings.
E. In-patient psychiatric assessment
24. On 23 December 2010 the applicant showed up at the District Court to hear the decision on his complaint about the retention of electronic devices (see paragraph 15 above ). Towards the end of the pronouncement hearing, the investigator entered the room, accompanied by two bailiffs. They told the applicant that he would be taken to another judge of the same court who would decide on the investigator ’ s application for his placement for an in-patient psychiatric assessment in the framework of the second criminal case.
25. The applicant insisted that his lawyer M. should be present. Instead, legal-aid lawyer S. was called in to represent him (see paragraph 21 above ). The applicant refused the services of the lawyer S. but the court did not rule on his challenge. Moreover, the applicant objected to the prosecutor ’ s request, in particular, on the ground that he was the sole guardian of his ailing mother who would be left to her own devices in his absence.
26. One hour later the District Court granted the application. It noted that the applicant did not have any known mental issues and had submitted himself to an outpatient psychiatric assessment. The experts observed that the applicant was “ egocentric ”, had an “exceedingly positive self-image” and “a passion for reform”. However, they were unable to determine the extent to which those character traits were pronounced or to provide responses to the investigator ’ s questions. Accordingly, the court considered necessary to commit the applicant for an in-patient assessment lasting no longer than thirty days with a view to determining what his mental state had been at the time the imputed offence of libel had been committed. The court further ordered that the custody of the applicant ’ s mother be transferred to the guardianship authority in the Oktyabrskiy District in Novosibirsk.
27. The applicant was taken to the hospital where he went on a hunger strike in protest against his involuntary placement. He also filed grounds of appeals, complaining in particular about a breach of his right to defend himself through legal assistance of his choosing. On 30 December 2010 the applicant was released, the medical experts were satisfied as to his sanity.
28. On 9 February 2011 the Novosibirsk Regional Court dismissed his appeal in a summary fashion.
29. Article 196(3) of the Code of Criminal Procedure establishes that a forensic psychiatric assessment is required for determining the mental state of the defendant if there are doubts as to his sanity or his capacity to defend himself in the criminal proceedings.
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
30. The applicant complained that his involuntary placement in a hospital for the purpose of conducting a psychiatric assessment had breached the requirements of Article 5 of the Convention. The relevant parts of this provision read:
“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
31. The Government submitted that the applicant ’ s confinement had been justified and had not breached the requirements of Article 5 § 1 of the Convention.
32. The Court considers 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.
33. The applicant was confined to a psychiatric hospital for a seven-day period lasting from 23 to 30 December 2010 pursuant a court order requiring him to undergo an in-patient psychiatric assessment. The Court has previously accepted that a deprivation of liberty for the purpose of conducting a court-ordered psychiatric assessment falls to be examined under subparagraph (b) of Article 5 § 1 of the Convention (see Trutko v. Russia, no. 40979/04, § § 33 -35, 6 December 2016, and D.R. v. Lithuania, no. 691/15, § 69, 26 June 2018).
34. The Court reiterates that the application of investigative measures involving internment in a specialised medical facility shall be accompanied with safeguards against arbitrariness and abuse. Where proceedings for judicial authorisation of a person ’ s placement in a psychiatric facility without consent are concerned, personal participation of the individual in the proceedings and the benefit of legal representation, where appropriate, constitute such important safeguards against arbitrariness (see Trutko, cited above, §§ 39-40, with further references).
35. In the present case, the applicant was not given advance notice of the hearing on the application for his committal. Knowing that the applicant would come to the court to hear the decision on the complaint about the investigator ’ s past actions, the investigator took advantage of the applicant ’ s presence in the court premises and escorted him directly to the room where the application for committal was heard (see paragraph 24 above ).
36. The applicant did not have the benefit of legal representation in those proceedings. The investigator had restricted his access to defence counsel M., his previous representative, on the spurious ground that he had needed to question her as an eye-witness to the offence. The applicant refused the services of legal-aid lawyer S. but he was not given time to make alternative arrangements for his defence or retain another defence counsel. In these circumstances, the Court finds that the applicant was not afforded adequate time to study the materials or to prepare his defence.
37. The Court reiterates that the issues of proportionality and fair balance between the importance in a democratic society of securing compliance with a lawful order of a court, and the importance of the right to liberty, assume particular significance in this type of cases (see Gatt v. Malta, no. 28221/08, § 40, ECHR 2010). However, as it happened, the District Court did not undertake an independent assessment of proportionality but essentially reiterated the contents of the investigator ’ s application. It did not mention that the applicant was charged with non-violent offences or that he had not entered an insanity or diminished responsibility plea or claimed being unable to stand trial. Even though the court acknowledged that the applicant had submitted voluntarily to an outpatient psychiatric assessment which returned inconclusive findings, it did not hear the experts who had been in charge of that assessment or afford the applicant an opportunity to cross-examine those experts. Nor did it consider the effect of separation of the applicant from his elderly mother whose sole guardian he was or weigh the needs of the investigation against her well-being. The Court finds that the level of scrutiny applied by the District Court to the matter was manifestly inadequate.
38. The Court notes that the committal order was enforced immediately, even in the absence of any indications of urgency; the applicant having been taken to the hospital directly from the court building. It is recalled that Article 5 § 1 (b) of the Convention requires that, before a person may be deprived of liberty for “non-compliance” with a “lawful order of a court”, that person must have had an opportunity to comply with such an order and have failed to do so (see Beiere v. Latvia, no. 30954/05, § 49, 29 November 2011). At the very least an individual may be considered to have had an opportunity to comply with an order when he was duly informed of it and either implicitly or explicitly refused to follow it (ibid., §§ 49-50). In the present case nothing indicates that the applicant was given an opportunity to go to the hospital of his own free will before the order was enforced by the authorities.
39. The Court finally notes that an appeal against the committal order was heard more than a month after the applicant ’ s release (see paragraph 28 above). The appeal court did not scrutinise the applicant ’ s arguments relating to the absence of defence counsel, the impact of his separation from his mother or other relevant matters.
40. Having regard to the inadequate review of the matter by the domestic courts which was not attended with sufficient guarantees against arbitrariness, the Court finds that the proceedings leading to the applicant ’ s seven-day internment in a psychiatric hospital did not meet the lawfulness requirement of Article 5 of the Convention rendering his detention arbitrary (compare Trutko, cited above, § 44).
41. There has therefore been a violation of Article 5 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
42. The applicant complained that the removal of counsel M. had undermined the fairness of the criminal proceedings against him and his right to defend himself guaranteed by Article 6 of the Convention which reads, in the relevant parts, as follows :
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing ... ”
43. The Government submitted that there had been no breach of the lawyer-client privilege because defence council M. had not been asked to disclose any confidential information. The investigator ’ s decision to question her as an eye-witness had been justified and there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention.
44. The Court considers 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.
45. The Court has recently summarised the principles guiding its assessment of the fairness of a trial in case of removal of defence counsel of the defendant ’ s choosing (see Dvorski v. Croatia [GC], no. 25703/11, §§ 76-82, ECHR 2015). It has reiterated that the national authorities must have regard to the defendant ’ s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice. Where such grounds are lacking, a restriction on the free choice of defence counsel would entail a violation of Article 6 § 1 together with paragraph 3 (c) if it adversely affected the applicant ’ s defence, regard being had to the proceedings as a whole (ibid., § 79).
46. On the first issue whether or not there were relevant and sufficient grounds for overriding the applicant ’ s wish to be represented by defence counsel M., the Court refers to the findings of the domestic courts. They established that, since M. had refused to testify in the proceedings against the applicant, no conflict of interest could have arisen and there were no legal grounds to restrict the applicant ’ s access to M. (see paragraph 23 above). It follows that the removal of counsel M. was not necessary in the interests of justice.
47. On the second issue whether or not the fairness of the proceedings as a whole was prejudiced, the Court has little information on the progress of the investigation during the period in which M. was replaced with legal-aid lawyer S. It has found above that M. ’ s absence from the proceedings relating to the applicant ’ s committal to a psychiatric hospital was prejudicial for his right to liberty. However, that finding does not entail, on its own, a violation of the right to a fair trial as long as the evidence obtained in that way was not used against him at the trial. The forensic psychiatrists concluded to the applicant ’ s sanity and he did not claim otherwise. It does not therefore appear that the expert report was in any way prejudicial for his line of defence. As noted above, the Court does not have information about any other investigative measures involving the applicant, such as interviews, which could have resulted in additional incriminating evidence being collected against him (compare Dudchenko v. Russia, no. 37717/05, § 158, 7 November 2017).
48. In the light of the above, the Court finds that M. ’ s removal as defence counsel for the applicant did not irretrievably prejudice the applicant ’ s defence rights or undermine the fairness of the proceedings as a whole.
49. There has therefore been no violation of Article 6 §§ 1 and 3 (c) of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
50. The applicant complained of the fact that the investigator had removed his electronic devices and rejected his request to make copies of his documents. He relied on Article 1 of Protocol No. 1 which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
51. The Government submitted that Article 1 of Protocol No. 1 had not been breached.
52. The Court considers 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.
53. The Court has examined a similar situation in the case of Smirnov v. Russia (no. 71362/01, §§ 50-59, 7 June 2007), in which it found a violation of Article 1 of Protocol No. 1 on account of an unjustified retention of Mr Smirnov ’ s computer.
54. The applicant in the present case was the lawful owner of the electronic devices which the investigator removed from his flat and kept as physical evidence in a criminal case. This situation falls to be examined from the standpoint of the right of a State to control the use of property (see Smirnov, cited above, § 54). The decision to retain the devices was based on the provisions of the Code of Criminal Procedure and could be considered necessary in the interests of proper administration of justice, which is a “legitimate aim” in the general interest of the community (ibid., § 57).
55. As in Smirnov, the Court notes that the devices were not an object, instrument or product of any criminal offence. What was valuable and instrumental for the investigation was the information stored on them (ibid., § 58). After that information had been examined and copied by the investigator (see paragraph 13 above), there was no apparent reason for the continued retention of the devices. No such reason has been advanced in the domestic proceedings or before the Court. Nevertheless, the devices were kept by the domestic authorities for approximately three years until after the conviction in the criminal proceedings had become final. The Court also notes that the applicant used the computer and other devices for drafting legal documents in defence of his rights and lawful interests. The retention of the computer not only caused the applicant personal inconvenience but also undermined his ability to defend himself.
56. Having regard to the above considerations, the Court finds that the Russian authorities failed to strike a “fair balance” between the demands of the general interest and the requirement of the protection of the applicant ’ s right to peaceful enjoyment of his possessions. There has therefore been a violation of Article 1 of Protocol No. 1.
IV. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4
57. The applicant complained that the authorities had prohibited him from leaving Novosibirsk for the entire duration of criminal proceedings in breach of Article 2 of Protocol No. 4, which reads as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement ...
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
58. The Government submitted that there had been no violation of Article 2 of Protocol No. 4.
59. The Court considers 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.
60. The Court reiterates that the prohibition on leaving a specific town, such as that imposed on the applicant, constituted an interference with his right to freedom of movement. The State may legitimately apply various preventive measures restricting the liberty of a defendant in criminal proceedings in order to ensure their efficient conduct, provided that such a measure, and in particular its duration, is in accordance with the law and proportionate to the aims sought (see Rosengren v. Romania, no. 70786/01, § 33, 24 April 2008, and Fedorov and Fedorova v. Russia, no. 31008/02, § 41, 13 October 2005).
61. The applicant ’ s freedom of movement was initially restricted in August 2007 in the framework of the first criminal case (see paragraph 8 above). The restriction may be assumed to have expired after the conclusion of the proceedings in that case in December 2010. By that time the second criminal investigation was already underway and an identical restriction was imposed in May 2011. It was eventually lifted after the end of the proceedings in the second criminal case in February 2013. The Court reiterates that, for the purposes of the Convention proceedings, the two periods must be considered cumulatively (see Ivanov v. Ukraine, no. 15007/02, § 93 in fine, 7 December 2006). It follows that the overall restriction period to be taken into consideration lasted approximately six years.
62. The Court has previously accepted that an obligation not to leave the area of one ’ s residence is the least intrusive measure involving a restriction on one ’ s liberty (see Fedorov and Fedorova, cited above, § 41). However, its excessive duration could be sufficient, on its own, to reach the conclusion that it was disproportionate to the legitimate aim it sought to achieve (see Ivanov, cited above, § 96; Rosengren, cited above, § 38; Luordo v. Italy, no. 32190/96, § 96, ECHR 2003-IX; Goffi v. Italy, no. 55984/00, § 20, 24 March 2005; Bassani v. Italy, no. 47778/99, § 24, 11 December 2003). The length of the impugned restriction in the instant case was longer than that in the cases in which it had not given rise, in combination with other elements particular to those cases, to the finding of a violation of Article 2 of Protocol No. 4 (see Antonenkov and Others v. Ukraine, no. 14183/02, §§ 59-67, 22 November 2005, and Fedorov and Fedorova, cited above). However, the distinguishing feature of the present case is that the applicant lived in Moscow but he was required to stay in Novosibirsk where the offences had been allegedly committed. Novosibirsk is located more than 3,300 kilometres by road or approximately four hours by airplane from the area of the applicant ’ s ordinary residence and he was not allowed to go back even for a short period of time (compare with Miażdżyk v. Poland, no. 23592/07, §§ 39 and 41, 24 January 2012, where the applicant was forced to stay more than five years outside his country of habitual residence). Being required to stay so long and so far from the place where he had previously lived must have considerably disrupted the applicant ’ s life and exposed him to financial hardship, yet there is no indication that the domestic authorities had taken any account of that fact.
63. The Court notes that the travel restriction was automatically applied for the entire duration of the proceedings (compare Fedorov and Fedorova, cited above, § 42). The Russian law did not require that the impugned measure be reviewed at regular intervals by the investigator or by the courts. The judicial challenges to the restriction that the applicant mounted were invariably dismissed by reference to the same facts that had justified the initial application of the measure (see paragraph 9 above). However, the Court reiterates that the necessity for maintaining the restriction will inevitably diminish with the passage of time, especially where no further evidence of the applicant ’ s intention to abscond is uncovered during the course of the investigation (see Luordo, § 96, and Rosengren, § 39, both cited above).
64. The applicant actively sought to leave Novosibirsk and the permission to do so was refused on several occasions (compare Fedorov and Fedorova, cited above, §§ 44-46). When he asked for the restriction to be lifted and committed himself to attending all hearings and interviews, the Regional Court confined its analysis to the affirmation that the investigation would suffer if the applicant were to leave Novosibirsk, without explaining why it believed that his undertaking to appear was insufficient to guarantee his attendance (see paragraph 9 above). The applicant ’ s arguments relating to the needs of his dependent mother were not addressed by the domestic courts in any form.
65. In sum, the Court finds that the domestic authorities did not adduce sufficient reasons for maintaining the travel restriction for such a long time. The interference with the applicant ’ s right to freedom of movement was not necessary in a democratic society.
66. There has therefore been a violation of Article 2 of Protocol No. 4.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
67. 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.”
68. The applicant claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage and EUR 18,900 in respect of legal costs, representing sixty-three hours of his representative ’ s work at the hourly rate of EUR 300.
69. The Government submitted that Article 41 was to be applied in accordance with the established case-law.
70. The Court awards the applicant EUR 10,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. It also considers it reasonable to award the sum of EUR 2,400 for the proceedings before the Court, plus any tax that may be chargeable on the applicant, payable into the representative ’ s bank account.
71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;