A.K. v. Russian Federation

The author of the communication is A.K., a national of the Russian Federation born in 1977. He claims that the State Party has violated his rights under articles 2, 7, 9, 10, 14 (1) and 26 of the Covenant. The Optional Protocol entered into force for the State Party on 1 January 1992. The author is not represented by counsel.

The author, a police officer, was arrested on 10 December 2009 by the Investigations Department of the South Administrative District in Moscow on suspicion of committing a crime. He was detained and his pretrial detention was prolonged several times by the Moscow City Court. On 3 December 2010, the Moscow City Court extended the period of detention until 19 March 2011, which was a total of 15 months and nine days, on the grounds that the author was charged under the “especially grave” category of crimes. The author appealed that decision to the Supreme Court.

On 7 December 2010, the investigator excluded the charges under the “especially grave” category and replaced them with charges under the “average gravity” category. Under article 109 of the Criminal Procedure Code, the maximum period of pretrial detention for persons accused of crimes in this category is 12 months. As at 9 December 2010, the author had spent 12 months in pretrial detention.

On 15 December 2010, the author submitted a request to the investigator in charge of his case to release him in view of the expiration of the maximum detention period of 12 months, as set out in article 109 of the Criminal Procedure Code. On 30 December 2010, the Investigations Department of the South Administrative District in Moscow rejected his request, referring to a decision of the Moscow City Court in which the author’s detention had been authorized until 19 March 2011.

The author complained to the Simonovsky District Court in Moscow with regard to the inaction of the investigator under article 125 of the Criminal Procedure Code.³ According to the author, while the Moscow City Court decision was lawful at the moment of its adoption on 3 December 2010, the circumstances changed on 7 December 2010, when his charges were modified. The investigator failed to release him; therefore, the author was detained unlawfully. On 19 January 2011, the Simonovsky District Court rejected the complaint. The Court found that the actions of the investigator and the Investigations Department had been timely and taken in accordance with the law and that their decisions had been communicated to the author; they did not violate the author’s constitutional rights and freedoms or obstruct his access to justice. On 27 April 2011, the Moscow City Court upheld the decision of the Simonovsky District Court. It clarified that the author’s claims of unlawful detention under article 109 were regulated by a different criminal appeals procedure and could not be considered under article 125 of the Criminal Procedure Code. The author’s supervisory review appeal to the Supreme Court was rejected on 20 January 2012.

3. Article 125 (1) of the Criminal Procedure Code reads as follows: The resolutions of the inquirer, the investigator and the public prosecutor on the refusal for the institution of a criminal case or in the termination of the criminal case and their other decisions and actions (lack of action), which may inflict damage upon the constitutional rights and freedoms of the participants in the criminal court proceedings or may interfere with the citizens' access to the administration of justice, may be appealed with the district court at the place of conducting the preliminary inquiry. ↩

The author contested the decision of 3 December 2010 of the Moscow City Court to extend his detention until 19 March 2011. On 19 January 2011, the Supreme Court repealed the Moscow City Court decision on the ground that, at the material time, the charges against the author did not fall into the “especially grave” category and sent the case back to the first instance court. The Supreme Court, nevertheless, maintained the author’s pretrial detention until 7 February 2011. On 31 January 2011, the investigator reclassified the author’s charges as “especially grave”. On 31 January 2011, the Moscow City Court confirmed the extension of the author’s detention until 19 March 2011. The author did not appeal that decision.

On 5 March 2017, the author submitted a new complaint.⁴ In the second quarter of 2011, he complained to the Investigations Department of the South-East Administrative District in Moscow about the falsification of his signature on the case file review record by the investigator. According to the preliminary inquiry findings, the author, who was then held in detention facility No. 6 in Moscow, had not received any visitors on the days marked on the respective records. The preliminary inquiry, however, did not establish elements of crime in the actions of the police officer who had been assigned to deliver the case materials to the author in detention. The Investigations Department decided not to open a criminal case (the date of the decision is not specified). The author’s allegations that the investigator in his criminal case might have been involved in the falsification were rejected as groundless assumption.

4. Both complaints were registered as one communication. ↩

Between the second quarter of 2011 and the date of submission of the communication to the Committee, there were 30 enquiries by national authorities into the author’s allegations. Numerous decisions not to open a criminal case were repealed by the prosecutor’s office and sent for further enquiry. On an unspecified date, the author submitted a complaint under article 125 of the Criminal Procedure Code against the Investigations Department decision not to open a criminal case dated 19 December 2014 and against the refusal to register his complaint against the investigator in his criminal case, to the Lublinsky District Court in Moscow. On 26 December 2014, the court rejected his complaint concerning the Investigations Department’s refusal to open a criminal case because the said decision had already been repealed by the Lublinsky Interdistrict Prosecutor’s Office in Moscow on 19 December 2014. The court rejected the complaint in relation to the refusal to register the author’s complaint by the Investigations Department, stating that it was within the prerogative of the Investigative Department to decide whether to register such a complaint and that the courts were not authorized under article 125 to revise such a decision. The author’s appeal to the Moscow City Court was dated 2 February 2015.⁵

5. There is no information on whether the appeal was answered. ↩

The author contends that, from 7 December 2010 to 31 January 2011, namely for 52 days, he was detained unlawfully, in violation of article 9 of the Covenant.

The author claims that the ineffective and protracted investigation into his complaint regarding the falsification of his signature on the case file review record violated his rights under articles 2 and 14 of the Covenant. He claims that, when the preliminary inquiries on his claims were carried out, he had already been sentenced by a court and that, as a sentenced person, benefited from reduced protection in the eyes of the authorities. He claims a violation of articles 10 and 26 in this respect. He claims a violation of article 26 because police officers, like himself, are treated differently from investigators, who are protected by the system.

The author also claims that his rights under article 7 of the Covenant were violated.

On 27 August 2018, the State Party submitted its observations on the admissibility and merits of the communication. The State Party submits that the author did not explain how his rights under articles 7, 14 and 26 had been violated and considers them unsubstantiated under article 2 of the Optional Protocol.

Regarding the author’s claims of a lack of investigation into the alleged falsification of his signature, the State Party submits that complaints concerning decisions and actions (or inactions) of officials during pretrial investigation can be considered by the trial court during the consideration of the criminal case, by the appeal and cassation courts. The author does not claim to have raised the relevant complaints before the Nagatisnky District Court in Moscow during his trial. Nor did he raise such claims in 2015, during the cassation appeal against his criminal sentence to the Supreme Court. His cassation appeal was rejected by the Supreme Court judge on 16 April 2015. The author did not submit further cassation or supervisory review appeals. The State Party submits that the author failed to exhaust domestic remedies on this part of his claims.

Regarding the author’s claims concerning unlawful detention under article 9 of the Covenant, the State Party claims that the complaint was submitted more than five years after the exhaustion of domestic remedies, namely the decisions of the Supreme Court dated 3 March 2011 and 20 January 2012. The State Party considers that this part of the communication constitutes an abuse of submission under rule 99 (c) of the Committee’s rules of procedure. On the merits of the claim, the State Party submits that the reclassification of criminal charges by itself does not render void a court decision on the extension of pretrial detention. The only remedy in the author’s case would be counting the detention period from 7 December 2010 to 27 January 2011 towards the total prison sentence. This was effectively done by the Nagatisnky District Court in Moscow when it delivered the sentence in the author’s criminal case on 30 June 2011. The State Party submits that there was no violation of the author’s rights.

In a submission dated 16 November 2018, the author contests the State Party’s response that his claims under articles 7, 14 and 26 are unsubstantiated. He submits that there were numerous violations during the preliminary investigation in his criminal case and states that he was beaten by an investigator on 3 March 2010 and that his injuries were recorded by the doctor in detention facility No. 6. Those claims were examined by the trial court and the evidence was still found admissible. The author insists that the claims are admissible.

The author contests the information submitted by the State Party that he failed to complain about the falsification of his signature in the trial court. The author claims that, on 17 March 2010, he informed the judge of the trial court at the preliminary hearing that he was not familiar with the criminal file and that he repeated this claim at all hearings. However, the trial court granted time to the author to read his criminal file only on 27 June 2010.

The author claims that the first and second instance courts can be considered as effective domestic remedies. They consider the facts of the case. The higher appeal instances can only consider procedural issues and are not an effective remedy.

On the State Party’s response regarding the delay in the submission of his claims of unlawful detention to the Committee, the author submits that the delay was caused by the failure of the authorities to provide him with the copies of all decisions. He argues that unlawful detention claims should not be subject to time limitations. As to the remedies mentioned by the State Party, he explains that time spent in pretrial detention is normally counted as part of the total prison sentence. He requests that a criminal investigation be carried out against the investigator who failed to release him and that the Supreme Court decision to extend his pretrial detention until 7 February 2011 be repealed.

On 3 February 2020, the State Party submitted that the author did not complain to the domestic courts about the authorities’ failure to provide him with copies of the decisions that he claims he did not receive. Despite the author’s claim that he did not receive some procedural documents regarding the refusal to revise his detention, according to the information available to the State Party, all decisions were sent by the respective authorities to the author. Therefore, the State Party notes that the author could have submitted his complaint within five years with the documents that he sent with his original submission. Furthermore, the author was represented during the preliminary investigation and in the court by lawyers, who could have assisted him in obtaining the necessary documents.

On the desirable remedies under the author’s claims under article 9, the State Party indicates that the author did not submit a criminal complaint. Besides, there are other remedies, of a non-criminal nature, available in such cases. The State Party refers to articles 151 and 1070 (1) of the Civil Code, under which compensation for moral damages and unlawful detention is possible.⁶ The author had an effective remedy for obtaining compensation, which he did not use. He also had lawyers who could have helped him to submit a claim. The author has, therefore, failed to exhaust domestic remedies on his claims.

6. Article 151, entitled “Compensation of the moral damage”, reads as follows: “If the citizen has been inflicted a moral damage (the physical or moral sufferings) by the actions, violating his personal non-property rights or infringing upon non-material values in his possession, and also in the other law-stipulated cases, the court may impose upon the culprit the duty to pay out the monetary compensation for the said damage” (see https://www.wto.org/english/thewto_e/acc_e/rus_e/wtaccrus58_leg_360.pdf). Article 1070 (1), entitled “Liability for the injury inflicted by the illegal actions of the bodies of inquest, preliminary investigation, the procurator’s office and the court of law”, reads as follows: “The injury inflicted on an individual as a result of illegal conviction, illegal institution of proceedings on criminal charges, illegal application of remand in custody as a measure of suppression or of a written understanding not to leave one’s place of residence, of illegally taking to administrative responsibility in the form of administrative arrest, as well as the damage inflicted upon a legal entity as a result of illegally taking to administrative responsibility in the form of an administrative suspension of the activity shall be redressed in full at the expense of the state treasury of the Russian Federation and in cases, stipulated by law, at the expense of the state treasury of the respective subject of the Russian Federation ….” (see https://www.wto.org/english/thewto_e/acc_e/rus_e/wtaccrus58_leg_360.pdf). ↩

In response to the State Party’s additional observations, on 25 April 2020, the author reiterated that he had not received many of the procedural documents, despite his numerous complaints in that regard. He notes that he did submit a request for a criminal investigation against the investigator regarding his detention claims to Department No. 2 of the City Investigating Department in Moscow. The decision was taken not to open a criminal investigation. The author appealed the said decision to the Moscow City Prosecutor’s Office without success.⁷

7. The author does not provide any dates or copies of the requests and decisions mentioned. ↩

The author submits that compensation under the Civil Code, mentioned by the State Party, can only be paid if the offence was established through a guilty verdict against an official in question.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the State Party’s argument that the author failed to substantiate his claims under articles 7, 14 and 26 of the Covenant. The Committee notes that the author has not provided any information and documents in support of his claims under article 7. The Committee notes that the author’s claims under articles 10 and 26 are insufficiently substantiated for the purposes of admissibility. The Committee finds the author’s claims under articles 7, 10 and 26 inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s claim that articles 2 and 14 (1) were violated by the protracted investigation into his allegations of the falsification of his signature on the case file review record. The Committee notes from the documents on file that, on 27 June 2011, at the author’s request, the trial was postponed to provide the author and his lawyer with the possibility to read the criminal file. Thereafter, the author signed a statement confirming that he was familiar with the file. In this light, and in the absence of relevant information from the author, it is unclear how the opening of a criminal investigation into the alleged falsification of the author’s signature would have affected the outcome of his trial. The author’s claim, as presented, although related to the criminal investigation in his criminal case in general terms, stands alone and is unconnected to the consideration of criminal charges against him in the meaning of article 14 (1). Article 14 confers protection to a defendant in a criminal case; it does not contain any provisions that would guarantee the prosecution of a third party. The Committee thus finds that the author’s claims under articles 2 and 14 (1) of the Covenant are inadmissible ratione materiae under article 3 of the Optional Protocol.

Regarding the author’s claims under article 9, the Committee notes that the author narrowly missed the period of submission, limited to five years after the exhaustion of domestic remedies, as established in rule 99 (c) of the Committee’s rules of procedure. The Committee takes into account the author’s claim that he only received the documents annexed to his original complaint three years after they were adopted, following numerous requests to the Simonovsky District Court. It is unclear which decisions the author refers to, since, in the Committee’s understanding, he appealed each decision shortly after they were made by the courts. The Committee notes that, even if some decisions were obtained only three years later, the author still had sufficient time before the expiration of the five-year deadline for submission. In the circumstances of the present case, the Committee finds that the author has missed the deadline for submission without having convincingly explained the reasons for the delay, and finds the part of his claims under article 9 of the Covenant inadmissible under article 3 of the Optional Protocol.

In view of the above, the Committee considers that it is not necessary to examine other grounds of admissibility.

The Committee therefore decides: (a) That the communication is inadmissible under articles 2 and 3 of the Optional Protocol;