CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 6 juin 2017

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RUSSIA   (Application no. 20489/07)             JUDGMENT         STRASBOURG   6 June 2017     This judgment is final but it may be subject to editorial revision. In the case of Urukov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Branko Lubarda, President,   Pere Pastor Vilanova,   Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 16 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20489/07) 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 Vladislav Nikolayevich Urukov (“the applicant”), on 10 April 2007. 2.     The applicant was represented by Ms O. Fisenko, a lawyer practising in Cheboksary. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by Mr   A.   Fedorov, Head of the Office of the Representative of the Russian Federation to the Court. 3.     The applicant alleged, in particular, that he had not been allowed to take part in the paternity proceedings, that the police had unlawfully entered his home and that he had been refused compensation for a period of unlawful detention. 4.     On 26 September 2012 the above complaints were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1959 and lives in Cheboksary. He is a former head of the civil law department in the Cheboksary State University. 6.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     Paternity dispute 7.     On 28 February 2004 baby V. was born. One month later her mother, H., sued the applicant to establish his paternity and to receive alimony. A genetic study confirmed the applicant’s paternity in respect of V.; however, a medical study concluded that the pregnancy “could not have occurred naturally”. 8.     On 7 December 2004 the Moskovskiy District Court in Cheboksary held a hearing with the participation of the applicant and Ms H. and rejected her claim. On 31 January 2005 the Supreme Court of the Chuvashiya Republic quashed the District Court’s judgment and remitted the matter for a new examination. 9 .     On 17 October 2005 the District Court gave judgment in favour of H. It was quashed on appeal by the Supreme Court on 14 December 2005 in particular on the ground that the parties had not been informed of the date and place of the hearing in which genetics experts had been cross-examined. 10.     In March 2007 the applicant was arrested on suspicion of large-scale bribery. He was detained in remand prison IZ-21/1 in Cheboksary. 11 .     On 15 March 2007 the District Court sent a letter of request ( судебное поручение ) to the director of the remand prison, asking him to clarify the applicant’s position on the merits of the dispute and to ascertain whether he agreed to having the matter examined in his absence or wished to appoint a representative. On 20 March the director interviewed the applicant who declared his wish to take part in the proceedings and to defend himself in person. The applicant also claimed that he possessed new evidence he wished to submit to the court. On 26 March the District Court refused the applicant leave to be present at the hearings on the ground that the Code of Civil Procedure made no provision for bringing detainees to courts. 12.     On 4 April 2007 the District Court held the hearing in the presence of Ms H., as well as Mr K. and Ms U. who represented the applicant. The judgment of the same date was given in Ms H.’s favour. It mentioned that the applicant was held in a remand prison, that he did not recognise the paternity and that he had “previously given similar testimony before the court”. 13 .     On 16 May 2007 the Supreme Court rejected the applicant’s appeal. It held that the applicant’s absence from the hearing did not entail a violation of his rights because he had been represented and had previously given testimony to the court. B.     Police entry into the applicant’s home and his new arrest 14.     On 9 June 2007 the applicant was released on bail. 15.     On 27 March 2008 the Moskovskiy District Court decided that he had breached the terms of the bail by exercising pressure on witnesses, issued a detention order and put the applicant’s name on the list of fugitives from justice. The applicant was not present at the hearing and could not be immediately re-arrested. 16.     At about 11 p.m. on 8 April 2008 three police officers showed up at the entrance of the applicant’s residence. They had been allegedly tipped off that the applicant was there. As it happened, the applicant received in-patient treatment at the infections centre but his daughter was inside. 17.     She did not open the door to the police immediately and told them that her father was in a hospital. According to her, the police began banging at the door and threatened her to break in. She was thus compelled to open the door. The police entered the flat, inspected all the rooms, opened closets and boxes, lifted the sofa and bed, and then left. 18.     On the following day the applicant was arrested and placed in custody. 19 .     On 24 April 2008 the Supreme Court found that the detention order of 27 March 2008 was not justified. In its view, the District Court had wrongly attached decisive weight to the statements by witnesses who had not mentioned any actual threats emanating from the applicant. The Supreme Court quashed the detention order and released the applicant. 20.     The applicant complained to a prosecutor about the unlawful actions of the police on 8 April 2008. On 16 May 2009 the prosecutor refused to institute criminal proceedings, finding that no criminal offence had been committed. 21.     The applicant then sued the Ministry of Finance for compensation in respect of an unauthorised search of his home carried out by the police. The District Court heard a number of witnesses. The applicant’s daughter insisted that the police officers’ presence in the flat had lasted as long as two and a half hours. The officer K. testified that he had entered the flat with the consent of the applicant’s daughter and that he had stayed inside no longer than two or three minutes. He had not searched the flat or opened closets. S., a relative who was present at the scene, stated that the police had entered the flat with the daughter’s consent, that they had “moved beds, looked under the carpets, displaced closets and paintings, gone into the basement”. 22.     By judgment of 29 October 2009, the Leninskiy District Court rejected the applicant’s claim. Citing section 11 of the Police Act and section 8 of the Operational-Search Activities Act, the District Court held that the officers had acted lawfully, on the basis of the detention order of 27   March 2008, and that they had the right to enter the applicant’s flat because they had information that he might have been at home. Since the Russian law only established the right to compensation in case of unlawful actions, the applicant’s claim was dismissed. 23.     On 9 December 2009 the Supreme Court upheld the District Court’s judgment on appeal. C.     Compensation for a stay in custody 24.     On 17 April 2009 the Moskovskiy District Court found the applicant guilty of forcing students to pay bribes into the account of his law firm in exchange of passing grades and gave him a custodial sentence. On 2 July 2009 the Supreme Court upheld the conviction on appeal. 25.     The applicant sued the Ministry of Finance for compensation in connection of his unlawful detention from 9 to 24 April 2008. 26 .     By judgment of 27 November 2009, the Leninskiy District Court rejected his claim, noting that the applicant had been ultimately convicted in the criminal proceedings and given a custodial sentence and that the Supreme Court had quashed the detention order as being “unjustified” rather than “unlawful”. In the latter case, no compensation was payable. 27.     On 11 January 2010 the Supreme Court rejected the applicant’s appeal. II.     RELEVANT DOMESTIC LAW 28 .     Section 11 of the Police Act (Law no. 1026-I of 18 April 1991, in force at the material time) codifies the powers of the police. In particular, paragraph 7 provides that the police may arrest the individuals whose placement in custody was ordered; paragraph 16 allows the police to carry out operational and search activities (see below), and paragraph   18 authorises them to enter private residences when pursuing suspected criminals, dealing with emergencies or if there are grounds to believe that a crime has been, or is being, committed there. 29 .     Inspection of premises is one of the forms of operational and search measures, as defined in section 6 § 8 of the Operational-Search Activities Act (Law no. 144-FZ of 12 August 1995). Pursuant to section 8, an interference with the citizen’s right to respect for his or her home is possible on the basis of a judicial decision provided that there exists information about a planned or committed criminal offence or about individuals who are planning or have committed an offence. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 30.     The applicant complained that his right to a fair hearing under Article   6   §   1 of the Convention had been breached on account of the courts’ refusal of his request to appear in person. Article   6 §   1 reads in the relevant part as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A.     Admissibility 31.     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. B.     Merits 32.     Citing the reasons given by the Supreme Court for rejecting the applicant’s appeal (see paragraph 13 above), the Government maintained that the applicant had not been placed at a disadvantage vis-à-vis the other party on account of his absence from the hearing in which he was represented. 33.     The applicant submitted that the right to take part in civil proceedings was an important aspect of a fair trial which could not be curtailed on account of his placement in custody. The letter of request which the District Court had sent to the director of the remand prison was an extrajudicial act which fell foul of the requirements of Russian law. 34.     The Court has recently summarised the principles applicable to the analysis of an alleged violation of the right to a fair trial on account of the absence of an incarcerated litigant from the civil proceedings (see Yevdokimov and Others v. Russia , nos. 27236/05 and 10 others, 16 February 2016): “36. It is ... incumbent on the domestic courts, once they have become aware of the fact that one of the litigants is in custody and unable to attend the hearings independent of his or her wishes, to verify, prior to embarking on the examination of the merits, whether the nature of the case is such as to require the incarcerated litigant’s personal testimony and whether he or she has expressed a wish to attend. If the domestic courts contemplate dispensing with the litigant’s presence, they must provide specific reasons why they believe that the absence of the party from the hearing will not be prejudicial for the fairness of the proceedings as a whole. It falls to them to examine all the arguments for and against holding hearings in the absence of one of the parties, taking into account, in particular, the Court’s case-law in similar cases and the nature of the contentious issues, and to apprise the incarcerated litigant in good time of their decision on the matter and the reasons for it ... 37. It is essentially on the basis of the reasons in the domestic decisions that the Court will determine whether or not the exclusion of an applicant undermined the fair-hearing principle. A lack or deficiency of reasons in the domestic decisions cannot be supplemented ex post facto in the proceedings before the Court, for the Court cannot take the place of the national courts that considered the issue of the litigant’s appearance before the court ... 38. The analysis that the Court expects to find in domestic decisions must go beyond a reference to deficiencies in the legal framework which rendered the attendance of the incarcerated litigant impossible. It must build on the concrete reasons for and against the litigant’s presence, interpreted in the light of the Convention requirements and all relevant factors, such as the nature of the dispute and the civil rights concerned.” 35.     In the instant case the applicant was a party to the proceedings in which his paternity was to be established. He was absent from the hearings before the District Court and the Supreme Court because at the material time he was detained on remand. The decisions of the domestic courts disclose no consideration of the issue whether the nature of the paternity dispute was such as to require the applicant’s attendance and whether his attendance could have been essential in order to ensure the overall fairness of the proceedings. 36.     The District Court refused the applicant leave to appear solely by reason of the absence of specific rules in the Code of Civil Procedure making provision for the exercise of the right to personal participation by incarcerated litigants (see paragraph 11 above). The Court has consistently rejected that approach by the Russian courts as being excessively formalistic, noting that the absence of legislation on prisoners’ attendance at hearings cannot be interpreted as sufficient grounds for depriving them of the right to appear. Invoking a technical ground without addressing the substantive issue whether the nature of the dispute is such as to require the party to appear in person is incompatible with genuine respect for the principle of a fair hearing, for an applicant cannot be expected to bear the brunt of the legislator’s failure to provide for the special situation of incarcerated parties to civil proceedings (see Yevdokimov and Others , cited above, §§ 31 and 50, with further references). 37.     It is true that by sending a letter of request the District Court attempted to put in place certain measures capable of diminishing the handicap which the applicant’s absence from the courtroom would have created. The questioning of the detainee outside the courtroom is consistent with the notion of a fair trial provided that the detainee is at all times aware of the arguments by the opposing party and able fully and properly to answer them (see Yevdokimov and Others , cited above, § 45). This was not the case here. The applicant had been interviewed just once, more than a week before the hearing which concluded with the court’s judgment against him. He was not given an opportunity to respond to the arguments of the other party or to challenge their evidence. The failure to secure his effective participation in the proceedings acquires greater importance in the light of the fact that a previous judgment by the District Court had been quashed because the applicant’s absence, while he had been at liberty, had deprived him of an opportunity to put questions to the expert in genetics (see paragraph 9 above). 38.     Finally, the Court notes that the applicant did not take part in the appellate proceedings and that the Supreme Court made no assessment of the effect that his absence may have had on the fairness of the proceedings (compare Barkov and Others v. Russia , nos. 38054/05 and 8 others, §§   18 ‑ 23, 19 July 2016). 39.     There has accordingly been a violation of Article 6 § 1 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 40.     The applicant complained of a violation of his right to respect for his home by reason of the police officers’ entry into his flat on 8 April 2008. He relied on Article 8 of the Convention which reads as follows: “1.     Everyone has the right to respect for ... his home ... 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.” A.     Admissibility 41.     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. B.     Merits 42.     The Government submitted that the police had entered the applicant’s residence on the basis of the detention order of 27 March 2008 with the purpose of locating a fugitive from justice. His daughter had consented to their entry. 43.     The applicant replied that the Operational-Search Activities Act required a judicial decision for entering private flats which would have been distinct from the detention order. The Police Act authorised officers to penetrate homes only in hot pursuit, in emergencies or in case of flagrante delicto , none of which was applicable in the instant case. His daughter had been prevailed upon to open the door but she was not a member of his immediate family and she had lived elsewhere in her own flat. 44.     The Court considers that the inspection of the applicant’s residence, regardless of its classification under domestic law and its actual duration, constituted an interference with the applicant’s right to respect for his home guaranteed by Article 8 of the Convention (see Zosymov v. Ukraine , no.   4322/06, § 59, 7 July 2016, and Belousov v. Ukraine , no. 4494/07, §   103, 7   November 2013). It is of no consequence to the question of interference that the measure was carried out in the applicant’s absence (see Lindstrand Partners Advokatbyrå AB v. Sweden , no. 18700/09, § 84, 20   December 2016). Accordingly, it falls to be determined whether the interference 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. 45.     Turning to the facts of the present case, the Court notes that the police visit complained of had not been subject to any prior judicial authorisation of the kind required by the Operational and Search Activities Act (see paragraph 29 above). Contrary to the Government’s claim, the detention order did not authorise the police to enter or search living premises. The police officers took it upon themselves to enter the applicant’s home to verify the tip they had allegedly received about the applicant’s presence in the premises. 46.     The Court further considers that the provisions of the Police Act cited as a legal basis for the inspection of the applicant’s home were formulated in vague and general terms and cannot serve as a sufficiently foreseeable legal basis for the interference in the present case (see Kilyen v.   Romania , no.   44817/04, § 35, 25 February 2014). In any event, none of the exceptions envisaged in the Police Act were applicable: it is apparent that, when entering the applicant’s home, the police officers were not pursuing a suspect or seeking to prevent an emergency or else possessed information about any crime having been committed in the flat (see paragraph 28 above). 47.     The Court finds that the interference with the applicant’s rights was not “lawful”. It is not necessary to examine whether the interference pursued a legitimate aim and was proportionate. 48.     There has therefore been a violation of Article 8 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 49.     The applicant further complained under Article 5 § 5 that he did not have an enforceable right to compensation for his detention from 9 to 24   April 2008. Article 5 § 5 reads as follows: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” 50.     The Government submitted that the applicant had no right to compensation in the situation where the criminal proceedings had ended with his conviction. 51.     The Court reiterates that the right to compensation set forth in Article 5 § 5 presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see N.C. v. Italy [GC], no.   24952/94, § 49, ECHR 2002‑X). 52.     In the instant case the Court is unable to examine whether the applicant’s detention in 2008 was compatible with the requirements of paragraphs 1, 2, 3 and 4 of Article 5 because he raised that matter on 31   May 2010, that is to say more than six months after the end of the impugned detention period (see Abashev v. Russia , no. 9096/09, §§ 26-27 and 35, 27   June 2013, and Rosengren v. Romania (dec.), no.   70786/01, §   5, 27   April 2004). In these circumstances, it will have to examine the findings of the domestic courts in respect of that period with a view to determining whether they established, expressly or implicitly, a breach of one of the four paragraphs of Article 5 (compare Shulgin v. Ukraine , no. 29912/05, §§   46 ‑ 47, 8   December 2011). 53.     It has been the Court’s constant case-law that a period of detention will in principle be lawful if it is carried out pursuant to a court order. Provided that the initial order had not been tainted with a gross and obvious irregularity, a subsequent finding that the court erred under domestic law in making the order will not retrospectively affect the validity of the intervening period of detention (see Mooren v. Germany [GC], no.   11364/03, §§ 72-75, 9 July 2009, and also, for a summary of recent case-law, Yefimenko v.   Russia , no. 152/04, §§ 102-07, 12 February 2013). 54.     In the instant case the applicant’s detention was imposed on 27   March 2008 pursuant to an order of a judge who was in principle competent to take the decision on the issue. The Supreme Court quashed the detention order because it disagreed with the assessment that the lower court had given to the statements by witnesses, but not because of any serious flaws or a procedural irregularity (see paragraph 19 above, compare with Vasiliy Vasilyev v. Russia , no. 16264/05, § 74, 19 February 2013; Roman Petrov v. Russia , no.   37311/08, § 45, 15 December 2015, and Kleyn v.   Russia , no.   44925/06, § 29, 5 January 2016). The civil court hearing the applicant’s compensation claim emphasised that the Supreme Court’s decision did not amount of a finding of unlawfulness of the detention order (see paragraph 26 above). The Court has no reason to find otherwise. 55.     It follows that there has been in the instant case no decision amounting to a finding of a breach of any of the first four paragraphs of Article 5. Accordingly, Article 5 § 5 finds no application and this complaint must be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §§   3 (a) and 4. IV.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 56.     Lastly, the applicant complained about his detention in 2007, inadequate medical assistance, interception of his phone calls, unfairness of the criminal proceedings against him and other matters. However, on the basis of the material in its possession and in so far as those complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. V.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 57.     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.” A.     Damage 58.     The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage. The Government considered the claim to be excessive. 59.     The Court awards the applicant EUR 2,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. B.     Costs and expenses 60.     The applicant also claimed EUR   870 for his representation at the detention hearing before the Supreme Court on 28 March 2008. The Government submitted that no supporting documents were enclosed. 61.     The Court notes that the issues relating to the applicant’s detention fall outside the scope of the present case. It therefore rejects the claim for costs and expenses. C.     Default interest 62.     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 complaints concerning the applicant’s absence from the paternity proceedings and the police’s entry into his residence admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds that there has been a violation of Article 8 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Branko Lubarda Deputy Registrar   President