Моя жалоба, коммуницированная Европейским Судом по правам человека, о незаконных задержаниях, обыске и вмешательстве в частную жизнь по ст. 5 п.п. 1, 4, ст. 8 Конвенции о защите прав человека и основных свобод (копия вопросов Суда к Правительству РФ)

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CONSEIL * * COUNCIL

DE UEUROPE * ^ * OF EUROPE

COUR EUROPEENNE DES DROITS DE L''HOMME

EUROPEAN COURT OF HUMAN RIGHTS

14 January 2009

FIRST SECTION

AppUcation no. 38898/04

by Yevgeniy ROZHKOV

against Russia

lodged on 28 November 2002

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Yevgeniy Ivanovich Rozhkov, is a Russian national

who was bom in 1966 and lives in Belgorod.

The facts of the case, as submitted by the applicant, may be summarised

as follows.

A. Circumstances of the case

1. Criminal proceedings against the applicant

The applicant is a lawyer practising in a private office in the town of

Belgorod.

In June 2005 criminal proceedings were instituted against the applicant

on suspicion of forgery. It appears that on an unspecified date he moved

from his flat to reside in his mother''s flat in the same town. He notified the

residence registration office about that change.

2. First arrest

On 25 January 2006 at around 10.30 a.m. the police arrived at the

applicant''s office. He was informed that a search warrant had been issued

against him and that he should follow them in order to be brought before the

investigator. Despite his request, the applicant 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 at the police station to be brought before the investigator. The

latter explained that she was not in possession of the file for the time being

and thus ordered the applicant to make a written undertaking to appear ROZHKOV V. RUSSIA - STATEMENT OF FACTS AND QUESTIONS

before her on 6 February 2006. It does not appear that he was questioned in

relation to the criminal case or that any investigative measures were taken

on that date. The applicant left the investigations department at around

1 p.m. The applicant brought proceedings under Article 125 of the Code of

Criminal Procedure (CCrP) complaining about his arrest on 25 January

2006 and also about the search warrant and the related suspension of the

criminal proceedings against him in 2005. By a judgment of 21 August

2006, the Sverdlovskiy District Court of Belgorod rejected his claim. The

court indicated the applicant had not been formally "arrested" within the

meaning given to this term by the CCrP. Thus, the requirements of drawing

an arrest record or appointment of counsel were not applicable. The

applicant was kept at the disposal of the authorities for less than three hours

and no preventive measure was applied to him. On 4 October 2006 the

Belgorod Regional Court upheld the judgment.

3. Second arrest

On 22 December 2006 the chief officer of the Belgorod Investigations

Department issued an order indicating that the applicant had failed on

several occasions without a valid excuse to attend interviews with the

investigator. Thus, he ordered that the applicant be brought before the chief

officer of the Investigations Department.

On 25 December 2006 the police arrived at the applicant''s office at

around 2.45 p.m. and compelled him to follow him to the police station

instead of the Investigations department 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. It does not appear that he was questioned in

relation to the criminal case or that any investigative measures were taken

on that date. The applicant lefl the police station at around 5 p.m. 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 but compelled to appear before the

investigator. The court also indicated that it was possible to challenge the

police actions under Article 125 of the Code. On 21 February 2007 the

Regional Court upheld the judgment.

4. Search in the applicant''s office

The investigator issued a search warrant authorising a search in the

applicant''s office in order to seize handwritten samples by the applicant and

an authority form issued to the applicant by a private company. The

applicant''s office was situated on the premises of a law firm (adeoKamcKoe

6iopd). According to the applicant, on 13 October 2006 several officers

carried out a search in the presence of attesting witnesses and looked into

the applicant''s medical file and asked him questions about the information

contained there.

On 29 November 2006 the Regional Court took the final decision

upholding the search. It held that the applicant''s office could not assimilated

to "abode" within the meaning given to this term by the Criminal Code and ROZHKOV V. RUSSIA-STATEMENT OF FACTS AND QUESTIONS

thus no judicial authorisation was required for a search. It also found that

the applicant raised a representation matter only at the closure of the search

and was able at any moment to contact counsel. Lastly, the court indicated

that the procedure under Article 125 of the CCrP did not require

examination of witnesses.

B. Relevant domestic law and practice

1. Search in residential premises and advocates'' offices

Under the Code of Criminal Procedure (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 in an abode (Articles 38, 164 and 182).

Private information should not be divulged during the search (Article 182

§7).

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.

In its ruling of 8 November 2005 (no. 439-0) the Constitutional Court

held that the CCrP should be interpreted as requiring a prior judicial

authorisation for a search at an advocate''s office or on the premises of a law

firm (adeoKamcKoe odpasoeanue), despite the absence of any express

provision to this effect in the Code.

2. Preventive measures

According to Article 111 of the CCrP, the 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.

Pursuant to Article 113 of the Code, if the suspect or accused has

defaulted without a valid reason he or she may be compelled to appear

before the relevant authority or officer.

The order to be brought should be notified to the person concerned

before the execution of that order.

In its decision no. 63-0-0 issued on 24 January 2008 the Constitutional

Court indicated that it was up to a court in each individual case to decide

whether a particular action by the 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. ROZHKOV V. RUSSIA - STATEMENT OF FACTS AND QUESTIONS

COMPLAINTS

The applicant complains under Articles 5, 6, 13 and 14 of the Convention

that his arrests on 25 January and 25 December 2006 were unlawful and

arbitrary and that the Russian court failed to provide him with an adequate

review procedure.

The applicant also raises a number of complaints in relation to various

proceedings which ended with final decisions taken by the Regional Court

on 21 January and 4 March 2003, 19 April, 12 October and 15 November

2005, 12 January, 22 and 29 November, 24 May, 6 and 21 June 2006. In

particular, the applicant complains under Articles 6 and 8 of the Convention

that no judicial authorisation was obtained for the search in his office; the

documents to be seized were either already available or unrelated to the

charges against him; he was not provided with legal-aid counsel during the

search; the scope of judicial review proceedings was confined to the manner

in which the search was carried out while the applicant also alleged that the

search warrant itself was unlawful; confidential information pertaining to

his medical record was divulged during the search; the courts refused to

hear attesting witnesses who would confirm this complaint.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty on 25 January and

25 December 2006 in breach of Article 5 § 1 of the Convention? In

particular, did the deprivation of liberty fall within paragraphs (b) or (c) of

this provision (cf. Iliya Stefanov v. Bulgaria, no. 65755/01, §§ 70-76,

22 May 2008)? If yes, was there a violation of Article 5 § 1?

2. Did the applicant have at his disposal an effective procedure by which

he could challenge the lawfulness of his arrest/detention on the above dates,

as required by Article 5 § 4 of the Convention? Was the procedure by which

the applicant sougjit to challenge the lawfulness of his arrest/detention in

conformity with Article 5 § 4 of the Convention?

3. Was there a violation of Article 8 of the Convention on account of the

search carried out in the applicant''s office on 13 October 2006? In

particular, was this search attended by appropriate procedural guarantees

(compare Stefanov, cited above, § 38; Wieser and Bicos Beteiligungen

GmbHv. Austria, no. 74336/01, §§ 57-67, ECHR 2007-...; Societe Colas

Est and Others v. France, no. 37971/97, §§ 46-49, ECHR 2002-III, and

Niemietz v. Germany, 16 December 1992, § 37, Series A no. 251-B)?