The European Court of Human Rights has today notified in writing a judgment[fn1] in the cases of Smirnova v. Russia (application nos. 46133/99 and 48183/99). The Court held unanimously that there had been

• a violation of Article 5 §§ 1 and 3 (right to liberty and security) of the European Convention on Human Rights in respect of both applicants;

• a violation of Article 6 § 1 (right to a fair trial within a reasonable time) in respect of both applicants; and
• a violation of Article 8 (right to respect for private life) in respect of the first applicant.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the first applicant 3,500 euros (EUR) and the second applicant EUR 2,000 for non-pecuniary damage and both of them EUR 1,000 jointly for costs and expenses.

(The judgment is available only in English.)

The case concerns applications brought by two Russian nationals, Yelena Pavlovna Smirnova and Irina Pavlovna Smirnova, who are twin sisters born in 1967 and living in Moscow.

On 5 February 1993 criminal proceedings were brought against them on suspicion of having defrauded a Moscow bank by obtaining a loan on false pretences. On 9 January 2002 they were convicted of large-scale fraud and sentenced to eight years’ and six years’ imprisonment respectively, and to confiscation of their property. They were both remanded in custody four times during the criminal investigations. On 9 April 2002 Moscow City Court set aside their conviction and discharged them from serving their sentence because the time-limit for establishing their criminal liability had expired.

Yelena Smirnova’s national identity paper ("internal passport") was taken away from her when she was arrested on 26 August 1995 and withheld until 6 October 1999. In December 1997 and April 1998 the Moscow Social Security Service and a law firm had both refused to employ her because she did not have an internal passport. In December 1997 a Moscow clinic had informed her that free medical care could only be provided if she presented an insurance certificate and her internal passport. For the same reason, in April 1998 the Moscow Telephone Company had refused to install a telephone line in her home. On 2 June 1998 the Moscow City Notary Office had notified her that she needed to prove her identity, for example with an internal passport, if she wished to obtain notarial deeds. On 10 December 1998 she had been refused the registration of her marriage. On 19 March 1999 she had been stopped by a police patrol for an identity check. As she had been unable to produce the passport, she had been taken to a police station and had had to pay an administrative fine.

Yelena Smirnova lodged her application with the European Court of Human Rights on 9 November 1998. Irina Smirnova had lodged hers on 31 October 1998. Both were declared admissible on 3 October 2002.

Judgment was given by a Chamber of 7 judges, composed as follows:

Georg Ress (German), President,
Ireneu Cabral Barreto (Portuguese),
Riza Türmen (Turkish),
Boštjan Zupančič (Slovenian),
Margarita Tsatsa-Nikolovska (Macedonian),
Kristaq Traja (Albanian),
Anatoli Kovler (Russian), judges,

and also Vincent Berger, Section Registrar.

3.  Summary of the judgment [fn2]

Yelena Smirnova and Irina Smirnova complained, under Article 5 of the Convention, that their repeated detention on remand had been unjustified and unlawful. They also complained of a breach of Article 6 § 1.

Yelena Smirnova complained, in particular, under Article 8, about the withholding of her internal passport, which was an essential item for everyday life in Russia.

Yelena Smirnova had been detained for a total period of 4 years, 3 months and 29 days. Since the Convention had not come into force in respect of Russia until 5 May 1998, only 2 years and 15 days of that period fell within the period that could be considered by the Court. The period to be considered in respect of her sister, Irina Smirnova, was 1 year, 6 months and 16 days. The Court not only had to examine whether the total period of detention had been reasonable, but also whether the repetitiveness of it had complied with Article 5. The reasons given by the domestic authorities were remarkably terse and failed to describe the sisters’ situation in detail. The repeated detention in the course of one criminal investigation – on the basis of insufficiently argued reasons – amounted to a violation of Article 5 §§ 1 and 3.

The Court determined the period of the proceedings that it could take into consideration as 9 years, 2 months and 4 days in respect of Yelena Smirnova and 2 years, 5 months and 27 days in respect of Irina Smirnova. It considered that the charges had not been particularly complex and that the investigation should not have taken years. In all the circumstances of the case, the length of the proceedings failed to satisfy the "reasonable time" requirement.

The Court noted that the interference with Yelena Smirnova’s private life was peculiar in that it allegedly flowed not from an instantaneous act, but from a number of everyday inconveniences taken in their entirety, which had lasted until October 1999. In that respect the interference fell within the Court’s temporal jurisdiction. The Court found it established that in everyday life Russian citizens often had to prove their identity, even when performing certain mundane tasks. Moreover, the internal passport was required for more crucial needs such as finding employment and obtaining medical care. There had therefore been a continuing interference with Yelena Smirnova’s private life.

Domestic law provided that the passport had to be returned when an individual was released from detention on remand. The Government had not shown that the failure to return it on Yelena Smirnova’s release had had any basis in law. There had accordingly been a violation of Article 8.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.

[fn1]  Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[fn2]  This summary by the Registry does not bind the Court.