AS TO THE ADMISSIBILITY OF
Application no. 31008/02
by Nikolay Fedorovich FEDOROV and Beviya Andreyevna FEDOROVA
The European Court of Human Rights (First Section),
14 December 2004 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 25 July 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Mr Nikolay Fedorovich Fedorov and Mrs Beviya Andreyevna Fedorova, are Russian nationals, who were born in 1961 and 1962 respectively and live in Kargasok Village, Tomsk Region. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings against the applicants
The applicants, a married couple, worked as veterinarians. The first applicant held a position of the Head Veterinarian of the district.
On 26 September 1996 criminal proceedings for fraud were instituted against the first applicant and an obligation not to leave the place of his residence without permission was imposed on him as a measure of restraint.
On 22 October 1996 by an order of the investigator the first applicant was suspended from his job.
In February 1998 criminal proceedings for fraud were instituted against the second applicant and an obligation not to leave the place of her residence without permission was imposed on her as a measure of restraint.
On 17 August 1998 criminal proceedings against both applicants were joined. The applicants were accused of submitting false reports on business trips in order to obtain unlawfully cash from the veterinarian station where the first applicant worked.
On 17 July 2000 the applicants asked for the obligation not to leave their place of residence without permission to be cancelled. It appears that the application was not considered.
During six years the criminal case was several times remitted by the courts for additional investigation: in May 1997, 5 February 1998, 21 September 1999, 31 May 2000 and 31 October 2000.
On 13 August 2002 the Parabelskiy District Court of the Tomsk Region acquitted the applicants and cancelled the obligation not to leave their place of residence without permission.
On 16 December 2002, on appeal, the Tomsk Regional Court quashed the judgment and remitted the case for a fresh examination by a different composition of judges.
It appears that on an unspecified date the obligation not to leave their place of residence without permission was again imposed on the applicants.
On 8 May 2003 the Parabelskiy District Court of the Tomsk Region terminated criminal proceedings against the applicants for lack of indication of a crime having been committed.
On 30 June 2003, on appeal, the Tomsk Regional Court quashed the ruling and remitted the case for a fresh examination to Molchanovskiy District Court of the Tomsk Region.
On 31 December 2003 the Molchanovskiy District Court convicted the first applicant of misappropriation of entrusted property and sentenced him to one year's imprisonment. He was released from serving the sentence pursuant to the statutory time-bar. The second applicant was fully acquitted. The court also ordered to lift the obligation not to leave their place of residence without permission in respect of both applicants.
On 15 April 2004, on appeal, the Tomsk Regional Court reversed the judgment in the part relating to the conviction of the first applicant and remitted the case for a fresh examination. The court ruled not to apply any measures of restraint in respect of the applicant.
The proceedings in the first instance court are still pending.
2. Civil proceedings concerning the second applicant
On 2 August 2001 the second applicant was dismissed for unjustified absence from work. She instituted proceedings for reinstatement at work and damages.
On 2 April 2002 the Kargasokskiy District Court of the Tomsk Region dismissed the claim.
On 31 May 2002 the Tomsk Regional Court upheld the judgment.
B. Relevant domestic law
Code of Criminal Procedure of 1960 in force until 1 July 2002.
Article 89 (1). Application of measures of restraint
“When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to secure the execution of a sentence, the inquirer, the investigator, the prosecutor or the court may apply one of the following measures of restraint in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or taking into custody. [...]”
Article 90. Application of a measure of restraint to a suspect
“In exceptional instances, a measure of restraint may be applied to a suspect who has not been charged. In such a case, charges must be brought against the suspect within ten days after a measure of restraint is applied. If no charges are brought within the period specified, the measure of restraint shall be cancelled.”
Article 91. Circumstances to be considered in applying a measure of restraint
“When the need for application of a measure of restraint is considered and the type of the measure is chosen... the circumstances to be taken into account shall include... the gravity of the charges brought and the personality of the suspect or the accused, occupation, age, health, family status and other circumstances.”
Article 92. Order and ruling on the application of a measure of restraint
“A measure of restraint shall be applied under an order rendered by an inquirer, an investigator, a prosecutor, or a reasoned ruling rendered by a court, which shall specify the offence of which the person is suspected or accused and the grounds for application of the measure of restraint. The person concerned shall be informed of the order or ruling and at the same time the person shall be provided with explanations concerning the procedure for bringing complaint against the measure of restraint applied.
A copy of the order or the ruling on the application of the measure of restraint shall be immediately handed to the person concerned.”
Article 93. A written undertaking not to leave a specified place
“A written undertaking not to leave a specified place consists in obtaining from the suspect or the accused an obligation not to leave the place of residence or of temporary stay without a permission of a person conducting an inquiry, an investigator, a prosecutor, a court. In the event of breach by the suspect or the accused of the written undertaking given by him, a stricter measure of restraint may be applied about which he should be informed when the undertaking is withdrawn.”
1. The applicants complain about the length of the criminal proceedings against them invoking Articles 6 and 13 of the Convention.
2. They complain under Article 2 of Protocol No. 4 about the obligation not to leave their place of residence without permission imposed on them.
3. The second applicant complains about the courts' findings of facts and law concerning her civil claim and invokes Articles 6 and 13 of the Convention.
1. The applicants complain that the criminal proceedings against them have been lasting unreasonably long. They rely on Articles 6 and 13 of the Convention. The criminal proceedings against the first applicant began on 26 September 1996 and are still pending. The criminal proceedings against the second applicant began in February 1998 and ended on 15 April 2004 with a final judgment of the Tomsk Regional Court to acquit her. They have therefore until now lasted over 8 years in respect of the first applicant and approximately 6 years and 2 months in respect of the second applicant.
The Court will examine the complaint under Article 6 § 1 of the Convention, which reads, insofar as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
The Government submit that they are not in a position to comment on this complaint because the proceedings against the first applicant are still pending.
The applicants maintain that the length of the criminal proceedings against them was in breach of the “reasonable time” requirement enshrined in Article 6 § 1.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicants' conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicants complain under Article 2 of Protocol No. 4 about having been subjected to an obligation not to leave their place of residence without permission.
Article 2 of Protocol No. 4 reads, insofar as relevant, as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
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.”
The Government submit that the obligation not to leave their place of residence without permission imposed on the applicants was a lawful measure, which constituted a minimum restriction of their right of freedom of movement and it was purposed to ensure their presence at the place of investigative actions and at court hearings. The Government further contend that the first applicant twice applied to the courts for permission to leave the Kargasok District and his applications were granted. The Government conclude that in such circumstances there was no breach of Article 2 of Protocol No. 4.
The applicants argue that the obligation not to leave their place of residence without permission, which remained imposed on them over a period of seven years, constituted a disproportionate limitation of their right to freedom of movement. They admit that the domestic courts twice granted the first applicant's applications to leave the Kargasok District in order to appear in the appeal hearings. They contend, however, that a number of their applications to leave the place of residence for medical and other personal reasons were refused. The applicants maintain that the imposed restriction also prevented them from choosing their home and finding employment in other regions of Russia.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
3. The second applicant complained under Articles 6 and 13 of the Convention that the courts erred in findings of facts and law in respect of her claim for reinstatement.
The Court notes, however, that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court's task is to ascertain whether the proceedings as a whole were fair (see, inter alia, Bernard v. France, judgment of 23 April 1998, no. 22885/93, § 37, ECHR 1998-II). The Court finds that in the present case the domestic courts at two levels of jurisdiction carefully examined the materials in their possession and reached reasoned conclusions as to the merits of the applicant's claim. The applicant had ample opportunities to state her case. There is no evidence of any unfairness within the meaning of Article 6 in this respect. Likewise, the complaint does not give rise to issues under Article 13, as it applies only in respect of an arguable claim of a violation of a substantive Convention right (see, for instance, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicants' complaints under Article 6 § 1 about the length of the criminal proceedings and under Article 2 of Protocol No. 4 about the obligation not to leave their place of residence without permission imposed on them;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
FEDOROV AND FEDOROVA v. RUSSIA DECISION
FEDOROV AND FEDOROVA v. RUSSIA DECISION