FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5140/02 
by Igor FEDOTOV 
against Russia

The European Court of Human Rights (Fourth Section), sitting on 23 November 2004 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr A. Kovler
 Mr R. Maruste
 Mr S. Pavlovschi, 
 Mr L. Garlicki, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 18 December 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Igor Leonidovich Fedotov, is a Russian national who was born in 1957 and lives in the town of Borovichi of the Novgorod Region. He is represented before the Court by Ms L. Stakhieva, a lawyer practising in Lipetsk. The respondent Government are represented by Mr P. Laptev, 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.  Background of the case

On 25 March 1996 a meeting of forced migrants residing in the town of Borovichi and in the Borovichi District founded the Borovichi local non-governmental association of forced migrants “Feniks” (“Phoenix” or “the association”) and adopted its Articles of Association. The meeting also elected three members of the board and Mr A. as president of the association. The applicant was one of the founders.

On 30 July 1997 the board convened to terminate the powers of Mr A. and elected the applicant as the acting president of the association.

On 2 February 1998 a conference of members elected Ms K. as a board member.

On 12 October 1998 the board composed of Ms K. and the applicant passed a decision to amend the Articles of Association. In particular, the Articles were amended to read that the applicant, Ms K. and Mr B. had been the founders of the association.

2.  Civil proceedings against the applicant

On 14 September 1999 an acting prosecutor of the Borovichi District lodged a civil claim against the applicant for the protection of the interests of the association members. He submitted that the board had not been competent to remove Mr A. from his office on 30 July 1997, such removal being in the exclusive competence of a general assembly; that the conference of 2 February 1998 had not been convened in accordance with the law and the Articles of Association and had not ratified the applicant's election as the acting president; and, finally, that in making the decision of 12 October 1998 to amend the Articles the board had acted ultra vires. The prosecutor sought annulment of the decisions of 30 July 1997 and 2 February and 12 October 1998 and a declaration that the applicant was not the president of the association.

It appears that the applicant did not attend the court hearings. On 4 July 2000 the Borovichi Town Court ordered that the applicant should be located. At the applicant's appeal, on 9 August 2000 the Novgorod Regional Court quashed the search order of 4 July 2000 on procedural grounds.

On an unspecified date the applicant lodged a counterclaim against the association and four of its members. He sought, in particular, a court declaration to the effect that all decisions and contracts made by the new president and board in 1999-2000 had been void.

On 10 October 2000 the Borovichi Town Court granted the prosecutor's claim. The applicant was not present at the hearing. On 6 December 2000 the Novgorod Regional Court quashed the judgment on procedural grounds and remitted the case.

On unspecified dates in early 2001 the applicant sent several complaints to the Novgorod Regional Court and the Judges' Qualifications Board of the Novgorod Region. He complained, in particular, about delays in the examination of the claim against him, and the judge's failures to entertain his counterclaims and to notify him of court hearings on a regular basis.

On 2 April 2001 the applicant filed with the Town Court a written request (dated 30 March 2001) to adjourn the proceedings for the period of his participation in a fundraising seminar in Moscow between 9 April and 9 May 2001. It is unclear whether he received any response to this request.

On 7 May 2001 the Borovichi Town Court delivered a new judgment. The applicant was not present at the hearing. The court noted that a summons had been sent to the applicant's last known address, which had been the address of the association, and that the applicant had never advised the court of his new address. The court granted the claim in full and annulled the contested decisions of the association.

The applicant appealed against the judgment.

On 18 July 2001 the Novgorod Regional Court upheld the judgment of 7 May 2001 on the merits. The Regional Court also thoroughly examined the applicant's complaints about the first instance court's alleged failures to summon him to hearings. The court traced all court summons and noted, with reference to specific pages of the case-file, that from 15 October 2000 onwards the summons addressed to the applicant's name and address had been returned with the postman's remarks “[he is] not at home” or “[he] does not live here”. The Regional Court considered that under such circumstances the first instance court was entitled to proceed in the applicant's absence, under Article 111 of the RSFSR Code of Civil Procedure.

On 14 August 2001 the acting president of the Novgorod Regional Court refused the applicant's request for supervisory-review.

3.  Criminal proceedings against the applicant

(a)  Criminal charge against the applicant

On 7 May 1999 the prosecutor's office of the Borovichi District opened  criminal case no. 2091 against the applicant under Article 201 of the Criminal Code (“Abuse of position”). The applicant was suspected of having used his position as the president of the association for his personal gain. It was alleged, in particular, that he had used a grant of USD 5,000 to purchase computer equipment which he kept at his home or (in the alternative) unlawfully gave to a local law office.

On 8 August 1999 the prosecution terminated the criminal case for lack of indications of a criminal offence. On 10 August 1999 this decision was reversed and the investigation resumed.

On 13 October 1999 the applicant was charged under Article 201 § 1 of the Criminal Code. The applicant was absent from the prosecutor's office and he did not countersign the charge sheet. On the same date the prosecutor issued a warrant for the applicant's arrest. As the applicant's whereabouts were apparently unknown, a decision was made to suspend the proceedings until such time as the applicant could be located.

On 21 November and 30 December 1999 and other unspecified dates the applicant lodged several complaints with the Novgorod Region prosecutor's office and the Prosecutor General's office. He disputed the legal characterisation of the facts that had given rise to the charge against him and submitted that he had never received a notice to appear at the investigator's office and therefore there was no valid reason to charge him in his absence and to issue the arrest warrant.

On 1 February 2000 a supervising prosecutor of the Novgorod Region prosecutor's office quashed the decisions of 13 October 1999 to charge the applicant and to suspend the proceedings and lifted the arrest warrant. She found that the investigation had been incomplete because pertinent facts had not been sufficiently examined.

On 9 February 2000 the Borovichi criminal police put the applicant's name on the federal list of wanted persons.

On 20 March 2000 the applicant was charged again under the same provision of the Criminal Code. The applicant renewed his complaints to the Prosecutor General's office.

On 10 April 2000 a senior investigator of the Investigations Division of the Novgorod Region police discontinued the criminal proceedings against the applicant because no indications of a criminal offence had been established.

On 4 May 2000 the decision of 10 April was notified to the applicant's lawyer.

(b)  Applicant's detention in Moscow

i.  Detention on 14-15 June 2000

On 14 June 2000 at 9.50 p.m. the applicant was detained in Moscow in the Izmaylovo Hotel. His detention was effected on the basis of the arrest warrant of 13 October 1999 because his name was still on the federal list of wanted persons. The applicant remained at the police station for twelve hours, until 10 a.m. on 15 June 2000. He was allegedly questioned, searched and verbally assaulted by police officers. He was released after the lifting of the arrest warrant had been confirmed by a faxed communication of the Novgorod Region police. A deputy head of the police station Mr Biryukov refused to issue the applicant with a document confirming his detention for twelve hours.

ii.  Detention on 6-7 July 2000

On 6 July 2000 at 8.30 p.m. the applicant was detained in Moscow again, on the basis of the same arrest warrant. He was escorted to the “Rostokino” police station of the North-Western Administrative District of Moscow. The applicant alleges that he was verbally assaulted by three police officers, one of them hit him in the chest. The applicant's requests to make a phone call and to meet the head of the police station were ignored. The applicant was not released until 6.15 p.m. on 7 July 2000, following the confirmation of annulment of the warrant. During the entire time of his detention the applicant allegedly received no water or food and had no access to the toilet facilities.

(c)  Disciplinary proceedings against the investigators

On 18 June 2000 the applicant complained about his detention on 14-15 June to the head of the Moscow police and to the Izmaylovskiy District prosecutor's office that had territorial competence to supervise the police station where the applicant had been detained. On 5 July 2000 the applicant complained to the Moscow City prosecutor about his unlawful detention and the District prosecutor's failure to respond to his earlier complaints. On 15 August 2000 the applicant complained to the Prosecutor General about his unlawful detention in July 2000.

On 17 August 2000 a deputy head of the Operative Investigations Division of the Moscow police informed the applicant that he had been lawfully detained on 14 June 2000 for being on the federal list of wanted persons. As the applicant had not had any documents showing that the proceedings against him had been terminated, police officers “had undertaken all appropriate measures to confirm or refute [the applicant's] statement about the unlawfulness of [his] detention”. Mr Bychkov wrote that, according to the available information, the arrest warrant had been lifted on 3 July 2000.

On 18 September 2000 a deputy head of the Public Security Division of the Moscow police confirmed to the applicant that he had been detained on 14 June and 6 July 2000 because his name had been on the federal list of wanted persons. He maintained that Moscow police officers had acted lawfully and both detention episodes had occurred because the Novgorod Region police had failed to update in a prompt manner the database of wanted persons of the Russian Ministry of the Interior.

On 4 September 2000 the head of the Operative Investigations Division of the Moscow police advised the applicant that placement of a person's name on the wanted persons' list and its striking off the list was the responsibility of the Borovichi police department.

On 25 September 2000 a deputy prosecutor of the Izmaylovskiy District of Moscow wrote to the applicant that the blame for his detention was attributable to the Novgorod Region police officers who had failed to strike the applicant's name off the wanted persons' list, while the Moscow police had acted lawfully on the basis of available information.

On 31 October 2000 a deputy prosecutor of the Novgorod Region informed the applicant that his name had been deleted from the wanted persons' list on 5 May 2000 and on 16 May 2000 a notice thereof had been sent to the central database of the Ministry of the Interior. However, he also established that the prosecutor Romanova had failed to notify the Borovichi police department that the arrest warrant had been lifted on 1 February 2000, which led to the applicant's detentions in Moscow and Lipetsk and violations of his constitutional rights. The deputy prosecutor requested the head of the Investigations Department of the Novgorod Region police to examine the matter and to discipline those responsible for the violations of the applicant's rights.

On 20 October 2000 a deputy head of the Internal Investigations Department of the Novgorod Region police wrote to the applicant that disciplinary proceedings were pending against the investigator Zaytsev who had failed to notify in time the lifting of the arrest warrant. However, the deputy head continued, the investigator's omissions had not entailed a violation of the applicant's rights because the notification in question had been sent on 16 May 2000. The applicant was advised to apply to a civil court for compensation for the damage caused.

On 7 December 2000 an acting prosecutor of the Novgorod Region informed the applicant that the prosecutor Romanova had been reprimanded for unspecified violations of the laws of criminal procedure during the investigation of the applicant's case.

After the application had been communicated to the respondent Government, the Ostankinskiy interdistrict prosecutor's office carried out an inquiry into the applicant's complaints of 2000. On 29 March 2004 it issued a decision not to initiate criminal proceedings in connection with allegations of ill-treatment because no indication of a criminal offence could be established in the actions of the police officers.

On 20 April 2004 the Moscow city prosecutor quashed the decision of 29 March 2004 and ordered resumption of the inquiry. A copy of the city prosecutor's decision has not been made available to the applicant or to the Court.

(d)  Civil action for damages

On an unspecified date in early 2001 the applicant sued the Ministry of Finance, the Prosecutor General's office and the Ministry of the Interior. He claimed compensation for pecuniary and non-pecuniary damage in connection with the unlawful criminal proceedings against him and his unlawful detention.

On 29 August 2001 Judge Karpushkina of the Basmanniy District Court of Moscow requested the “Rostokino” police station to provide the materials concerning the applicant's detention on 6-7 July 2000, including the arrest record, a body search record and an extract from the detainees' registration book. It is not clear whether the requested documents were provided.

On 18 September 2001 the Basmanniy District Court of Moscow gave its judgment. The court established that the criminal proceedings against the applicant had been unlawful because they had been eventually discontinued for lack of indication of a criminal offence. Having regard to the fact that “[the applicant] had been under an undertaking not to leave the town and he had not been actually placed in custody”, the court awarded him 3,000 Russian roubles (RUR) as compensation for non-pecuniary damage. The court also awarded the applicant RUR 14,976 for legal costs incurred in connection with the criminal proceedings and RUR 462.14 for costs in the civil proceedings. The total amount was RUR 18,438.14 (approximately EUR 675). The remainder of the applicant's claims was dismissed.

The full text of the judgment was not made available to the applicant until 2 December 2001.

The applicant appealed against the judgment. He complained, in particular, that the court had deliberately given an incomplete account of the circumstances of the case and that his claims for compensation for unlawful detention in June and July 2000 had been left out of the judgment. The applicant further contended that the court had incorrectly determined the amount of non-pecuniary damage without regard to the materials produced by the applicant. Finally, he submitted that the prosecutor Chugunov had taken part in the hearing before the first instance court as a representative of the defendant, i.e. the Prosecutor General's office, rather than as a supervising prosecutor as it was indicated in the text of the judgment.

On 16 January 2002 the Civil Section of the Moscow City Court upheld the judgment of 18 September 2001. The appeal court held that the applicant had not advanced any new arguments other than those that had been already examined by the first-instance court.

(e)  Enforcement of the judgment of 18 September 2001

On 20 January 2002 the applicant asked the Basmanniy District Court to issue him with a writ of execution. Having received no reply, on 7 March, 15 May and 19 June 2002 the applicant complained to the president of the court and to the Moscow city prosecutor about unjustified delays.

On 27 May 2002 the president of the Basmanniy District Court responded to the applicant, claiming that on 18 March 2002 the writ had been submitted to the court bailiffs for enforcement.

On 19 June 2002 the applicant received a writ of execution for RUR 17,976. On 26 and 27 June 2002 the applicant complained to the president of the Basmanniy District Court and to the president of the Moscow City Court that the amount in the writ had been smaller than one awarded in the judgment.

On 26 June 2002 the applicant asked the president of the Basmanniy District Court to correct the arithmetical error in the writ. On the following day he also complained about the district court's negligence to the Moscow City Court. On 29 July 2002 the applicant unsuccessfully repeated his request and on 2 September 2002 he sent yet another complaint to the Moscow City Court.

On 16 July 2002 the applicant submitted the writ for RUR 17,976 to the court bailiffs.

By a letter of 24 September 2002, the president of the Basmanniy District Court confirmed that on 18 March 2002 the writ had been submitted to the court bailiffs.

On 22 November 2002 the court bailiffs' service of interdistrict office no. 2 of the Central Administrative District of Moscow returned the writ for RUR 17,976 to the applicant, advising him to submit it directly to the Ministry of Finance. No information about the writ which had allegedly been submitted to that service on 18 March 2002 by the Basmanniy District Court was given.

Having received no response to his requests about correction of the arithmetical error for more than a year, on 19 September 2003 the applicant filed with the Basmanniy District Court yet another request to the same effect and returned the erroneous writ for RUR 17,976.

On 9 February and 3 and 20 March 2004 the applicant complained to the president of the Supreme Court of the Russian Federation about the Basmanniy District Court's persistent refusal to issue a correct writ and to respond to his lawful requests. On 10 and 15 February 2004 he sent similar complaints to the Moscow city prosecutor and the Basmanniy district prosecutor.

On 11 March 2004 the applicant's representative met the president of the Basmanniy District Court in person and asked her to issue a writ for the correct amount.

On 10 April 2004 the applicant received by mail a writ of execution for RUR 18,446.54, dated 30 March 2004. On 16 April 2004 he submitted it to the Ministry of Finance for execution.

By a letter of 14 April 2004 from the Supreme Court of the Russian Federation, the applicant was informed that on 15 October 2003 a correct writ of execution had been sent to the court bailiffs' service.

By a letter of 6 May 2004 from the Moscow Main Directorate of the Ministry of Justice, the applicant was advised that since 1 January 2002 the bailiffs' service has not received a writ of execution for RUR 18,446.54.

B.  Relevant domestic law

The RSFSR Code of Civil Procedure of 11 June 1964 (in force at the material time):

Article 41. Participation of a prosecutor in the proceedings

“A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens.

The participation of a prosecutor in civil proceedings is mandatory in the cases where the law so provides or where the necessity of his participation in a specific case was recognised by the court.

The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge motions, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law. The prosecutor's abandoning of a claim lodged for the protection of interests of another person does not impair that person's right to have his case examined on the merits.”

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was handcuffed while being detained on 14 June and 6 July 2000. Under this provision he also complains about degrading conditions of the detention on 6-7 July 2000.

The applicant complains under Article 5 §§ 1 (c), 2, 3, 4 and 5 of the Convention about his detention in Moscow in June and July 2000. He complains that his detention was not sanctioned by a court and he was not brought promptly before a judge, that his request to be granted legal assistance was refused and that he did not receive compensation for the unlawful detention.

The applicant makes a number of complaints under Article 6 of the Convention. In respect of the civil proceedings leading up to the decision of the Novgorod Regional Court of 18 July 2001, the applicant submits that he was not informed of the civil action lodged against him by the prosecutor's office until the court ordered, on 4 July 2000, that he be searched for and the full text of the statement of claim was not made available to him until December 2000. Furthermore, he complains that the judgment of 7 May 2001 was made in his absence, despite his written request of 30 March 2001 for an adjournment of the proceedings on valid grounds, and for this reason he lost the opportunity to state his case and challenge the evidence before the court. Under this head the applicant complains that his counterclaims have never been judicially determined.

As to the civil proceedings concerning his right to compensation for unlawful criminal prosecution, the applicant complains that the domestic courts did not pronounce on his arguments and submissions in respect of his unlawful detention in June and July 2000, that the courts refused to examine additional witnesses on his behalf and to provide assistance to collect evidence, that the courts did not accept in evidence his medical certificates showing the extent of his distress, and, finally, that the amount of the award for non-pecuniary damage was determined without regard to his suffering.

The applicant complains under Article 11 of the Convention that the decisions of the domestic courts concerning his right to hold the position of the president of the association violated his right to freedom of association.

THE LAW

1.  The applicant complained that his detention on 14 June and 6-7 July 2000 was not compatible with Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government have declined to comment, claiming that the Prosecutor General's office has launched an additional inquiry into the circumstances of the applicant's detention on 14-15 June and 6-7 July 2000.

The applicant interprets the Government's stance as an admission that, four years after the events in question, they are not in possession of any factual information on his detention, even though between 18 June and 23 November 2000 he had lodged no fewer than nine complaints concerning these events to various authorities, including the Moscow city prosecutor, the Minister of the Interior, the Prosecutor General and the head of the Moscow department of the interior. However, these complaints did not prompt any effective investigation or punishment of those responsible. No criminal case was opened and no inquiry was carried out. Moreover, in the subsequent civil proceedings for compensation, the domestic courts refused his requests to obtain information concerning his detention and to interview witnesses. The applicant considers that an investigation that has been started after a significant lapse of time, only after the communication of his application by the Court, cannot be effective and produce any tangible results.

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.

2.  The applicant complained that his detention on 6-7 June and 14-15 July 2000 was incompatible with Articles 5 §§ 1 (c), 2, 3 and 4 which provide as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government make no comments on the admissibility and merits of this complaint, claiming that the Moscow city prosecutor is now conducting an additional inquiry into the lawfulness of the applicant's detention.

The applicant submits that his detention had no legal basis whatsoever because on 1 February 2000 the arrest warrant had been lifted and his placement on the federal list of wanted persons on 9 February 2000 had been unlawful from the first day. He points out that the Government did not explain why it had taken the Novgorod police 36 days (from 10 April 2000 when the criminal proceedings were terminated until 16 May 2000) to notify the discontinuation of the proceedings to the federal police, why it had taken the federal police two weeks to update the list of wanted persons and why it had taken the federal police 39 days (29 May 2000 to 7 July 2000) to ensure the definitive termination of criminal prosecution of the applicant. What is more, despite the applicant's complaint of 18 June 2000 about his unlawful detention on 14-15 June 2000 to the Izmaylovskiy prosecutor's office, no measures were taken and his name was not struck out of the wanted persons' list. As a consequence thereof, he was unlawfully re-detained in July 2000. Finally, the applicant submits that no State official was disciplined or found responsible for the two episodes of his unlawful detention.

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 applicant complained under Articles 5 § 5 and 6 of the Convention that the domestic courts had failed to address the part of his claim concerning compensation for unlawful detention and that they had made arbitrary decisions as to the admissibility and assessment of evidence. The Court has considered that this complaint falls to be examined under Article 5 § 5 of the Convention, being the lex specialis in case of proceedings for compensation for unlawful detention, which 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.”

The Government assert that the applicant's statement of claim to the Basmanniy District Court did not include a claim for compensation for the damage caused by his detention in June and July 2000. They consider therefore that he has not exhausted domestic remedies.

The applicant challenges the Government's assertions as factually inaccurate. He filed a precise claim for compensation “for non-pecuniary damage in connection with unlawful actions and omissions to act of the police, prosecution and investigation officials”, which included, in particular, the claim for unlawful prosecution in 1999-2000 and unlawful detention in 2000. His statement of claim referred explicitly to two episodes of his placement in custody in June and July 2000. Both he and his representatives, Ms Stakhieva and Mr Stepanov, made oral submissions to the first-instance court to the same effect. Furthermore, in his statement of claim he sought the court's assistance to obtain the records of his detention in June and July 2000 and asked the court to summon and to interview the eye-witnesses of his apprehension. These requests were not addressed by the court. In his grounds of appeal to the Moscow City Court the applicant complained, in particular, about the first-instance court's failure to examine his claim for compensation in respect of unlawful detention and the same issue was raised by Ms Stakhieva and Mr Stepanov in their oral submissions to the appeal court. Moreover, the appeal court examined and added to the case-file the police record of the applicant's arrest on 6-7 July 2000. The applicant submits that he has used all available venues and that the domestic courts deliberately avoided the examination of the issues related to his unlawful detention in June and July 2000.

The Court finds that the Government's objection is unsustainable on the materials in its possession. It observes that the applicant submitted copies of his statements of claim of 16 November 2000 (in respect of non-pecuniary damage) and 24 April 2001 (in respect of pecuniary damage) and a copy of his grounds of appeal. The Government have not contested the authenticity of these documents. It transpires from the statement of claim of 16 November 2000 that the applicant sought compensation for non-pecuniary damage in connection with, among other grounds, “repeated unlawful violations of [his] right to liberty and personal immunity, including, in particular, after the closure of the criminal case” and requested the court to obtain the records of his arrests in June and July 2000 from respective police departments. The Court further observes that on 29 August 2001 the judge hearing the applicant's claim ordered the police department to provide the records pertaining to the applicant's detention in July 2000. In his grounds of appeal the applicant also complained that the first-instance court “substantially misrepresented the factual circumstances and [his] points of claim”, in that it did not address, in particular, his unlawful detention in June and July 2000.

Having regard to the foregoing, the Court is satisfied that the applicant raised the claim concerning his unlawful detention before the domestic authorities. It rejects therefore the Government's objection as to non-exhaustion of domestic remedies. It further 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.

4.  The applicant complained under Article 6 of the Convention about a number of procedural defects that had allegedly blemished the proceedings leading up to the judgment of the Novgorod Regional Court of 18 July 2001. Article 6 § 1 provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal...”

The Court must examine at the outset whether Article 6 § 1 of the Convention was applicable to the proceedings which concerned the validity of the applicant's election as the president of the non-governmental association. The Court reiterates that in order for Article 6 to apply there must have been a dispute over a right which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play. Lastly, the right must be a civil one (see, for example, Le Compte, Van Leuven and De Meyere v. Belgium of 23 June 1981, Series A no. 43, § 47; Z and Others v. the United Kingdom [GC], no. 29392/95, § 87, ECHR 2001-V; Gutfreund v. France, no. 45681/99, § 38, ECHR 2003-VII). In the examination of the question whether a “right” was at stake the Court relies on analysis of domestic law and practice. A relevant issue is whether the contested decision was delivered in the exercise of discretionary powers or affected a clear entitlement arising out of the fulfilment of particular conditions set out by law (see Bozhilov v. Bulgaria (dec.), no. 41978/98, 22 November 2001, with further references).

In the present case, the Court notes that Russian law does not contain a right for an association member to be elected or appointed as its president or director. It was disputed whether the association president was to be nominated and removed by the board or by a general assembly, but it was uncontested that such nomination or removal is a result of the exercise of a discretionary power of the competent association body. In any event, the “right” to be elected or appointed to the president of the association cannot be described as a right which is “civil” in nature (see Novotny v. the Czech Republic, no. 36542/97, Commission decision of 1 July 1998). Furthermore, the applicant did not claim that the proceedings in question were decisive for his pecuniary rights, such as the right to remuneration or fringe benefits (cf. Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 108, ECHR 2000-XI).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

5.  The applicant complained under Article 11 of the Convention about the domestic courts' judgments to annul the decisions appointing him to the president of the association. Article 11 reads as follows:

1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others...

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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...”

The Court observes that even though the right to be nominated or elected to the president of an association derives from the status of the association member, a failure to be elected or nominated to that position does not affect this status in any way (see, mutatis mutandis, Novotny v. the Czech Republic, cited above). The applicant's membership of the association was neither terminated nor restricted. In the Court's opinion, the right to freedom of association cannot be construed as comprising the right to hold a specific office within an association.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

6.  The Court raised, of its own motion, the issue of lengthy non-enforcement of the judgment of the Basmanniy District Court of 18 September 2001, under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 which read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submit that, pursuant to Article 340 of the Russian Code on Civil Procedure, a writ of execution can be either given to the creditor or submitted for enforcement by the court itself. The law does not provide for the sending of a writ by mail, as the applicant requested. Once the applicant came to the Basmanniy District Court in person on 19 June 2002, the writ was immediately handed over to him. On 30 September 2003 he was given a new writ where the arithmetical error was corrected. The Government claim that so far the applicant has not submitted it to the Ministry of Finance for execution and therefore the lengthy non-enforcement of the judgment is due to the applicant's own conduct.

The applicant retorts that the delays in the enforcement are entirely attributable to the Russian authorities. Thus, the Basmanniy District Court did not make available a writ of execution for the correct amount until 10 April 2004, i.e. more than two years and six months after the judgment had been made. Moreover, it gave misleading information about the status of enforcement, alleging that the writ had been submitted to the bailiffs for enforcement. As it transpires from the bailiffs' service's letter of 6 May 2004, this information was false and the bailiffs never received a correct writ from the district court. Furthermore, the judgment is still unenforced, notwithstanding the fact that the required documents were submitted to the Ministry of Finance in April 2004.

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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints under Articles 3 and 5 of the Convention concerning his detention in Moscow on 14-15 June and 6-7 July 2000 and the subsequent proceedings for compensation, as well as the complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 about lengthy non-enforcement of the judgment of 18 September 2001;

Declares inadmissible the remainder of the application.

Michael O'Boyle Nicolas Bratza 
 Registrar President

FEDOTOV v. RUSSIA DECISION


FEDOTOV v. RUSSIA DECISION