CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 janvier 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .s76CF415B { page-break-before:always; clear:both } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     Communicated on 29 January 2014   FIRST SECTION Application no. 926/08 Mikhail Yuryevich KARELIN against Russia lodged on 19 November 2007 STATEMENT OF FACTS   The applicant, Mr Mikhail Yuryevich Karelin, is a Russian national, who was born in 1970 and lives in the town of Naberezhniye Chelny in the Tatarstan Republic (Russia). A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Case A On 20 February 2006 the police arrested the applicant (a practicing advocate) and took him to the police station on accusation of disorderly behaviour consisting of using coarse language in public (Article 20.1 of the Code of Administrative Offences, CAO). The applicant remained in police custody until 21 February 2006 when the chief officer of the police department found him guilty of the offence and imposed a fine of 500   Russian roubles (RUB). The applicant challenged this decision before the Naberezhniye Chelny Town Court of the Tatarstan Republic. On 28   March 2006 the Town Court considered that there had been insufficient evidence against the applicant, and discontinued the case for lack of a corpus delicti . After this judgment had become final, the applicant brought civil proceedings against the State seeking compensation in respect of non-pecuniary damage caused by his prosecution, including his arrest and detention on 20 and 21 February 2006. By a judgment of 8 October 2007 the Town Court dismissed his claims. The court held that Russian law did not provide for compensation in such circumstances and that, in any event, the applicant’s arrest was in compliance with Articles 27.1, 27.3 and 27.5 of the CAO. On 15 November 2007 the Supreme Court of the Tatarstan Republic (“Supreme Court”) upheld the judgment. 2.     Case B At 7 p.m. on 11 April 2006 the police arrested the applicant and took him to the police station on accusation of disorderly behaviour in a public place (Article 20.1 of the CAO). The applicant remained in police custody until 12 April 2006 when a justice of the peace found him guilty of the offence and imposed a fine of RUB 500. On 12 May 2006 the Town Court upheld the judgment. On 3 August 2007 the deputy President of the Supreme Court of the Tatarstan Republic considered that the evidence against the applicant was insufficient. Noting the expiry of the time-limit for prosecution and as required by the domestic law, the deputy President preferred discontinuation of the proceedings instead of remitting the case to the lower courts. The applicant sought compensation in respect of non-pecuniary damage, allegedly caused by the unlawful prosecution, including his arrest and detention on 11 and 12 April 2006. The applicant argued, inter alia , that Russian law authorised arrest only in “exceptional circumstances” and that no such circumstances obtained in his case. By a judgment of 26 September 2007 the Town Court dismissed his claims. The court held that Russian law did not provide for compensation in such circumstances and that, in any event, the applicant’s arrest was in compliance with Articles 27.1, 27.3 and 27.5 of the CAO. On 8 November 2007 the regional Supreme Court upheld the judgment. The appeal court specified that the applicant’s arrest had been aimed at putting an end to the administrative offence, at establishing the applicant’s identity and at ensuring a possibility for a “correct” examination of the administrative offence case. Subsequently, the applicant lodged a complaint before the Constitutional Court of Russia. Referring to the above court decisions and similar decisions of 8 October and 15 November 2007 (“Case A” above), he argued that the CAO and the Civil Code should be interpreted in the way requiring a possibility to claim compensation for unlawful arrest, which was carried out under the CAO. By ruling no. 9-P of 16 June 2009, the Constitutional Court held that an administrative arrest up to forty-eight hours should be limited to cases disclosing sufficient grounds to consider that such arrest is necessary and proportionate for the purpose of conducting administrative offence proceedings. The Court also held that the ensuing discontinuation of these proceedings for lack of offence or corpus delicti did not bar judicial review of the arrest measure. Furthermore, the Court considered that the CAO and the Civil Code should be interpreted in the way opening a possibility to claim compensation in respect of damage or loss caused by unlawful administrative arrest, irrespective of the fault on the part of the public authorities or public officials. Lastly, the Court required that the “relevant decisions” in respect of the applicant should be re-examined, in so far as they contradicted the ruling of 16 June 2009. On an unspecified date, the court decisions of 26 September and 8   November 2007 (see above) were quashed. Having re-examined the applicant’s civil case relating to his arrest on 11   April 2006, by a judgment of 27 April 2010 the Town Court awarded RUB 2,500 to the applicant whereas he had claimed RUB   80,000. The applicant did not appeal and did not challenge the sum awarded. The respondents appealed. On 1   July 2010 the regional Supreme Court upheld the judgment. 3.     Case C At 5.30 p.m. on 18 February 2010 the police arrested the applicant and took him to the police station on accusation of disorderly behaviour in a bar consisting of using coarse language in public (Article 20.1 of the CAO). It appears that the applicant had no identity document during the arrest. Such document was presented later on by the applicant’s next of kin. The applicant was released at 9 or 10 a.m. on 19 February 2010. By a judgment of 1   March 2010 the justice of the peace discontinued the administrative case against the applicant for lack of a corpus delicti . After this judgment had become final, the applicant brought civil proceedings against the State seeking compensation in respect of non-pecuniary damage caused by his prosecution, including his allegedly unlawful arrest and detention on 18 and 19 February 2006. By a judgment of 14 July 2010 the Town Court dismissed his claims. The court found it established that during the arrest the applicant had had no passport or another identity document; the applicant had resisted thereby putting the police officers in the situation of “extreme necessity” calling for carrying out the applicant’s arrest. Thus, the court considered that the statutory requirement of “exceptional circumstances” for arrest had been complied with, and that the arrest was carried out for the relevant statutory purpose. The court also noted that the applicant had not brought any separate proceedings challenging his arrest. Referring to the constitutional ruling of 16 June 2009, the court concluded that the applicant’s arrest had been lawful because there had been a reasonable suspicion against him, in particular based on a complaint of disorderly behaviour against him. In the absence of any unlawfulness, the compensation claim failed. On 26 August 2010 the Supreme Court upheld the judgment. 4.     Case D On 4 March 2012 the applicant was arrested by police officer Z. and was accused of disorderly behaviour in a public place (Article 20.1 of the CAO). He was facing a fine or up to fifteen days of administrative detention for this offence. On the same day, the officer compiled the offence record ( протокол об административном правонарушении ). Thereafter, he submitted it to the chief police officer who decided that the case should be submitted to a court for prosecution. The applicant was released on 4 or 5 March 2012. On an unspecified date, the case was submitted to the peace justice of the 21 st district in Naberezhniye Cherny. On 29 March 2012 the peace justice held a hearing. The applicant made a written statement that he had been apprised of his procedural rights. He pleaded not guilty and, apparently, made oral submissions on the charge against him. Officer Z. was heard as a witness. The court also heard eyewitnesses N. and K. By a judgment of 29 March 2012 the justice of the peace found the applicant guilty and imposed a fine of RUB 500 (approximately 13 euros). The court considered that the applicant’s guilt was established on the strength of the evidence against him, including the offence record and N.’s testimony. The applicant appealed to the Naberezhniye Cherny Town Court. On 16 April 2012 the Town Court held a hearing. Having heard the applicant, the court upheld the judgment of 29 March 2012. On that date, this judgment became final. The applicant sought review before the deputy President of the Supreme Court of the Tatarstan Republic. Having examined the file, by a decision of 15 June 2012 the deputy President confirmed the court decisions of 29   March and 16 April 2012. 5.     Other proceedings The applicant sought renewal of his driving licence. Apparently, the competent public authority refused to process his file because he had not paid the requisite public fee. The applicant brought court proceedings seeking a judicial declaration of unlawfulness in respect of the authority’s decision. On 14 June 2007 the Town Court decided not to process his case in the absence of a written document containing the authority’s refusal to process the file. On 16 July 2007 the Supreme Court upheld the Town Court’s decision. In July 2007 the supervising authority acknowledged that the file should have been processed. Soon thereafter, the applicant obtained his driving licence. In unrelated proceedings, on 26 July 2012 the civil court took the final decision rejecting the applicant’s claim for compensation on account of the absence of breakfast following his overnight detention from 4 to 5 March 2012. The courts refused to order disclosure of the logbook with the names of co-detainees (eventually to be called as witnesses on his behalf). Instead, the courts examined some other logbooks and relied on written statements by three officers and one co-detainee who stated that the applicant had refused breakfast. Lastly, the applicant unsuccessfully sought institution of criminal proceedings, alleging that a shopping mall guard had punched him. An investigator heard the interested parties, witnesses and ordered several medical reports. B.     Relevant domestic law and practice 1.     Equality of arms and adversarial proceedings under the Code of Administrative Offences (CAO) Article 1.5 of the CAO provides for the presumption of innocence. The official or court dealing with the administrative offence case should establish whether the person concerned is guilty or innocent (ruling no. 5 of 24   March 2005 by the Plenary Supreme Court of Russia). The Constitutional Court stated that Articles 118 § 2 and 123 § 3 of the Russian Constitution provided that equality of arms and adversarial procedure should apply in court proceedings, including under the CAO. While the above constitutional guarantees apply in cases examined (directly) by courts, they do not apply in cases examined by non-judicial authorities or officials (decision no. 630-O of 23 April 2013 by the Russian Constitutional Court). However, the person concerned may seek judicial review of their decisions; such review proceedings should provide for equality of arms and adversarial procedure (ibid.). Article 25.1 § 4 of the CAO provides that the person prosecuted under the CAO is entitled to study the case file materials, to make representations, to adduce evidence, to lodge motions and challenges, and to have legal assistance. The Constitutional Court considered that the above guarantees enable the person concerned to refute, in the course of court proceedings, the information contained in the case file, for instance in the offence record ( протокол об административном правонарушении ), thereby exercising his or her right to judicial protection based on the principle of adversarial procedure (decision no. 925-O-O of 17 June 2010). The Constitutional Court held, in relation to the Code of Criminal Procedure, that requiring or allowing a court to take over the functions normally attributed to a prosecuting authority contradicted Article 123 of the Constitution and impeded independent and impartial administration of justice (see, among others, ruling no. 16-P of 2 July 2013). 2.     Code of Commercial Procedure In certain circumstances, administrative offence cases should be examined following the procedure under the Code of Commercial Procedure. Articles 8 and 9 of the Code provide for equality of arms and adversarial procedure. Article 65 of the Code provides that each party to the proceedings should prove the circumstances to which he or she refers to, as a basis for his or her claims. Article 205 of the Code requires the authority which compiled the administrative offence record to prove the related factual and legal circumstances. The person prosecuted for an administrative offence does not bear the burden of proof in this respect. COMPLAINTS The applicant complains under Article 6 of the Convention that the proceedings against him in case D were unfair, were tainted by various procedural violations and were conducted in such a way (in particular, on account of the absence of any prosecuting authority) as to violate the requirement of impartiality, the principle of equality of arms and adversarial procedure.   QUESTIONS TO THE PARTIES   Was there a violation of Article 6 of the Convention as regards case   D? In particular:   -     Was the impartiality requirement respected in this case, in particular on account of the absence of any prosecuting authority and the role of the judge in these circumstances (see, by way of comparison, Ozerov v. Russia , no.   64962/01, §§ 52-57, 18 May 2010, and Blum v. Austria , no.   31655/02, §§ 36-38, 3 February 2005)? Did the same situation obtain on appeal?   -     Were the principle of equality of arms and the requirement of adversarial procedure applicable and actually respected in the present case? If yes, in which manner? What was the procedural role of the authority and public official who had compiled the administrative offence record under the CAO (cf. Articles 8, 9 and 205 of the Code of Commercial Procedure)?