CEDH · CASELAW;CLIN;ENG — 7 mai 2019

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Russia - 11436/06 and 22912/06 Judgment 7.5.2019 [Section III] Article 8 Article 8-1 Respect for private life Newspaper article disseminating photograph of suspect along with statement accusing him of criminal conduct: no violation Article 5 Article 5-1 Lawful arrest or detention Pre-trial detention in absence of court order: violation Facts – The applicants, co-defendants in criminal proceedings, complained, inter alia , that certain periods of their pre-trial detention had been unlawful. The first applicant also argued that the contents of a newspaper article, which included a photograph of him and a statement accusing him of criminal conduct, had constituted a disproportionate interference with his private life. Law – Article 5 § 1 (a)     Admissibility – In respect of the periods of detention in question, the respective applicants had pursued a remedy which they had not been required to pursue in order to exhaust domestic remedies and they had obtained a first decision from the domestic courts that the detention in question had been lawful. There had been no suggestion, and there was no indication, that the proceedings had had no prospects of success or could not afford redress. Thus, in the particular circumstances of the case they should be taken into account as regards the applicants’ compliance with the six-month rule under Article   35 §   1 of the Convention. (b)     Merits – The first applicant’s detention had been extended until 19   February 2004. On 18   February 2004 the prosecuting authorities had completed their pre-trial investigation and had submitted the case for trial. It was only on 10   March 2004 that the town court had taken a fresh decision extending the applicant’s detention. As to the second applicant’s complaint about his detention from 20   February until 29   April 2004, following the expiry of a detention order on 19   February 2004, it did not follow from the available material that his detention had been lawfully extended until at least 21   April 2004 when the town court had authorised his detention pending investigation. Having regard to its case-law on the matter the Court concluded that there had been a violation of Article   5 §   1 as regards those periods of detention. Conclusion : violation (six votes to one). Article 8: The dissemination of the first applicant’s photograph together with a statement accusing him of criminal conduct and ascribing to him a pattern of related criminal activities had attained the requisite level of seriousness to bring Article   8 into play and had been carried out in a manner causing prejudice to the personal enjoyment of the right to respect for private life. The matter relating to the dissemination of the applicant’s photograph in the newspaper article had been subject to regulation at the domestic level. The national courts had justified the publication of the photograph by citing the exception to the statutory rule of consent, stating that it had been in the public interest for the photograph to be disseminated. The courts had stated that the dissemination of the photograph could have served to aid the gathering of further information and prompt eyewitnesses to the crimes being investigated (or to further crimes) to come forward. The Court had no reason to doubt that this had been a plausible eventuality in view of the nature and scale of the alleged criminal activities. As at the date of the publication, the applicant, who was a convict serving a prison term for an unrelated criminal offence, had not been formally charged with the offence of being a member of a criminal community. The impugned article had reported on a matter of public interest, namely on pending investigations relating to a criminal community; as mentioned in the article, it was the first time that such a large-scale investigation on such a charge had been pursued in the region. It was uncontested that the impugned article had contributed to “a debate of general interest”. As regards the form of the article at issue, the language used had been neither offensive nor provocative. Moreover, the claimant had not been the focus of the article; rather, the focus had been on other people who had been recently arrested. The Court could not therefore find that the disclosure of the claimant’s identity had amounted to “trial by media”. The Court considered that the wording of the phrase relating to treating the applicant as a “member of a gang” might raise a concern, in particular given the fact that he was being accused of a related crime. However, the Court observed that the contested statement was preceded by a paragraph explaining that the recently arrested people were “accused” of a criminal offence. The article also had an introductory phrase mentioning that the persons in question were “accused” of running a criminal community. At one point the article mentioned that the arrestees were suspects. Reading the article as a whole it could be reasonably understood that the applicant was at the time merely suspected of a criminal offence relating to membership of a criminal gang and its arguably unlawful activities. Lastly, the Court agreed with the domestic courts that the journalist had relied in good faith on the official source in so far as the article was based on the content of official information. Conclusion : no violation (six votes to one). The Court also held, by six votes to one, that there had been violations of Article   5 §§   3, 4 and   5. The Court also held, unanimously, that there had been violations of Article   6 §   1 in respect of each of the two sets of proceedings instituted by the second applicant, noting certain essential factual and legal similarities with the matters examined in detail by the Court in the case of Yevdokimov and Others v.   Russia (27236/05 et al., 16   February 2016, Information Note 193 ). Article 41: EUR 12,700 to each applicant in respect of non-pecuniary damage; claims in respect of pecuniary damage dismissed. (See also Khudoyorov v.   Russia , 6847/02 , 8   November 2005)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes