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Case of Aleksandr Aleksandrov v/s Russia

    Application No. 14431 of 06

    Decided On, 27 March 2018

    At, European Court of Human Rights

    By, THE HONOURABLE MR. PRESIDENT HELENA JÄDERBLOM
    By, THE HONOURABLE MR. JUSTICE BRANKO LUBARDA
    By, THE HONOURABLE MR. JUSTICE LUIS LÓPEZ GUERRA
    By, THE HONOURABLE MR. JUSTICE DMITRY DEDOV
    By, THE HONOURABLE MR. JUSTICE PERE PASTOR VILANOVA
    By, THE HONOURABLE MR. JUSTICE ALENA POLÁČKOVÁ & THE HONOURABLE MR. JUSTICE JOLIEN SCHUKKING

    For the Appearing Parties: -----------



Judgment Text

PROCEDURE

1. The case originated in an application (no. 14431/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Aleksandr Valeryevich Aleksandrov ("the applicant"), on 10 February 2006.

2. The applicant was represented by Mr M. Moshkin, a lawyer practising in Podolsk, Moscow Region. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 6 July 2015 the complaint concerning the allegedly discriminatory nature of the applicant's sentence was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 3 of the Rules of Court. The parties submitted written observations on the admissibility and merits.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1983 and lives in Cheboksary.

5. On 19 July 2005 the Chertanovskiy District Court in Moscow found the applicant guilty of kicking a police officer while intoxicated, an offence under Article 318(1) of the Criminal Code, and sentenced him to one year's imprisonment. The District Court explained the decision to impose a custodial sentence in the following manner:

"When sentencing the defendant, Mr Aleksandrov, the court takes into account the nature and degree of the social danger of the offence, all the circumstances of the case, and the information regarding the defendant's personality: [he] has never incurred any criminal or administrative liability, he is not registered [as a drug addict or as a person suffering from psychotic disorders], he was given positive refer

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ences by his neighbours and employers, [and] his military registration has been annulled because of a kidney disease. The court accepts the above-mentioned circumstances as mitigating the defendant's guilt; however, it does not find any grounds for sentencing [him] to probation or imposing a fine on him, given the particular circumstances in which the offence was committed and the fact that [he] does not have a permanent place of residence in Moscow or in the Moscow Region".

6. The applicant appealed, claiming in particular that he had been discriminated against by the trial court's refusal to impose a non-custodial sentence on the grounds that he did not have a permanent residence in Moscow or in the Moscow Region, even though there had existed circumstances calling for the mitigation of his sentence.

7. On 29 August 2005 the Moscow City Court dismissed the appeal. It held, in a summary fashion, that the trial court had complied with every legal requirement and had issued a reasoned judgment, having sentenced the applicant to a term of imprisonment.

II. RELEVANT DOMESTIC LAW

8. Article 73 of the Criminal Code (as worded at the relevant time) provided that a suspended sentence could be imposed when the actual sentence did not exceed eight years' imprisonment and when the sentencing court was satisfied that the defendant could be rehabilitated without being incarcerated. When deciding whether to impose a suspended sentence, the court had to take into account the nature and degree of the social danger of the offence, the personality of the offender, and any mitigating and aggravating circumstances, as listed in Articles 61 and 63 of the Criminal Code.

9. When imposing a suspended sentence, a court ought to take into consideration the defendant's age, state of health and ability to work and to be satisfied that the defendant would be able to comply with additional restrictions, such as the requirement not to change his or her place of permanent residence, employment or study without first notifying the probation authorities, not to be present in certain places or at certain events, or to undergo treatment against drug or alcohol addiction.

10. Article 63 provided an exhaustive list of aggravating circumstances. Residence outside the region where the offence was committed or where the trial was held was not listed among them.

11. Article 318 established that the use of violence against a State official that did not endanger that official's life or health was punishable by a fine or by up to five years' imprisonment.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 5

12. The applicant complained under Article 14 of the Convention that the trial court had given him a custodial sentence for the sole reason that he had not had a permanent place of residence in the region in which he had been tried. Article 14 of the Convention reads:

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

13. Being master of the characterisation to be given in law to the facts of the case (see Bouyid v. Belgium [GC], no. 23380/09, 55, ECHR 2015) the Court will examine the applicants' allegations under Article 14 of the Convention, taken in conjunction with Article 5.

A. The parties' submissions

14. The Government claimed that the applicant had been convicted by a competent court and that his sentence had been determined in full accordance with the provisions of domestic law. They further argued that matters of fairness of criminal proceedings and of appropriate sentencing fell within the ambit of Article 6 of the Convention and, in accordance with the principle of subsidiarity, lay outside the Court's competence. In the Government's view, the sentencing court had duly considered the nature of the offence and the applicant's personality. A lack of permanent residence in Moscow or the Moscow Region had been taken into account but it had been neither the sole nor the decisive ground for deciding not to impose a suspended sentence. The applicant's conviction and sentence had been subsequently upheld on appeal. The Government lastly submitted that the applicant had not put forward any proof of bias on the part of the domestic courts or examples of analogous cases where suspended sentences had been given.

15. The applicant maintained his complaints.

B. The Court's assessment

1. Admissibility

16. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) General principles

17. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence, since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. However, the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, and to this extent it is autonomous. A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may, however, infringe it when read in conjunction with Article 14, for the reason that it is of a discriminatory nature. Accordingly, for Article 14 to become applicable, it suffices that the facts of the case fall "within the ambit" of another substantive provision of the Convention or its Protocols (see Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, 53, ECHR 2017, with further references).

18. In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, 175, ECHR 2007-IV). However, only differences in treatment based on a personal characteristic (or "status") by which persons or groups of persons are distinguishable from each other are capable of triggering the application of Article 14. The words "other status" in the text of this provision have generally been given a wide meaning, and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Khamtokhu and Aksenchik, cited above, 61, and Carson and Others v. the United Kingdom [GC], no. 42184/05, 70, ECHR 2010).

19. The Court reiterates that a differential treatment of persons in analogous or relevantly similar situations will only be deemed discriminatory if it has no objective and reasonable justification - in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, 76, ECHR 2013 (extracts)). As a general rule, the Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.

20. As to the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has demonstrated a difference in treatment, it is for the Government to show that it was justified (see D.H. and Others, cited above, 177).

(b) Application of the principles to the instant case

21. In the present case, the trial court found the applicant guilty of a drunken assault on a police officer involving the use of violence that had not put the officer's health or life in danger. When deciding on the appropriate sentence, it listed a number of mitigating circumstances which made the applicant prima facie eligible for a non-custodial sentence, such as probation or a fine. It held, however, that two elements extinguished the applicant's entitlement to a more lenient sentence, the first being "the particular circumstances in which the offence had been committed", and the second being his lack of a permanent place of residence within the Moscow Region (see paragraph 5 above).

22. The Court reiterates that matters of appropriate sentencing fall in principle outside the scope of the Convention and it is not its role to decide what the appropriate term of detention applicable to a particular offence is. However, where a sentencing policy or decision affects individuals in a discriminatory manner - for example, where the custodial sentence determined pursuant to domestic legal provisions differentiates between offenders on account of their age or gender - the Court has accepted that an arguable claim of a violation of Article 14 of the Convention, taken together with Article 5 1 (a), may arise (see Khamtokhu and Aksenchik, cited above, 55-59; Gerger v. Turkey [GC], no. 24919/94, 69, 8 July 1999; and Nelson v. the United Kingdom, no. 11077/84, Commission decision of 13 October 1986). The Court has no evidence of an established sentencing policy. Accordingly, the present case must be taken to concern an individual decision which, according to the applicant, introduced a difference in treatment based on his place of residence. The Court must therefore examine whether the respondent State put forward an objective and reasonable justification for the alleged difference in treatment (see Paraskeva Todorova v. Bulgaria, no. 37193/07, 37, 25 March 2010, and Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, 53, ECHR 2017).

23. The applicant was deprived of his liberty after being convicted by a competent court, an eventuality that is explicitly covered by Article 5 1 (a) of the Convention. The Court is satisfied that the facts of the case fall "within the ambit" of Article 5 of the Convention. Therefore, Article 14 of the Convention is applicable in the present case.

24. Turning next to the two grounds on which the trial court refused the applicant the benefit of a non-custodial sentence, the Court observes that the first of them, a reference to the "particular circumstances" of the offence, could be taken as an analysis of the de facto situation. Even though the trial court did not explain, even in a summary fashion, what in the manner in which the offence had been committed called for a harsher punishment of the applicant, this ground was not discriminatory on the face of it.

25. By contrast, the second ground relied upon by the trial court - the applicant's lack of permanent residence within the Moscow Region - calls for a different approach. The Court has previously recognised that the "place of residence constitutes an aspect of personal status for the purposes of Article 14" (see Carson and Others, cited above, 70-71) and can trigger the protection of that Article. In so far as the applicant's place of residence was explicitly mentioned as a factor in the sentencing decision, it introduced a difference of treatment based on this ground between the applicant and other offenders convicted of similar offences and eligible for a sentence of probation or a fine (see Paraskeva Todorova, cited above, 37-44, and Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, 139, ECHR 2005-VII (extracts)). The Court also notes that the difference in treatment introduced by the Chertanovskiy District Court and upheld on appeal by the Moscow City Court does not seem to follow from domestic law (see paragraph 10 above) and that the Criminal Code provides for the possibility for a person serving a suspended sentence to change his place of residence under certain conditions (see paragraph 9 above).

26. In the Court's view, it is not necessary to establish to what extent each of these two grounds affected the sentencing measure which the applicant complained about. The Court reiterates that in discrimination cases where more than one ground forms part of an overall assessment of the applicant's situation, grounds should not be considered alternatively, but concurrently. Consequently, the illegitimacy of one of the grounds has the effect of contaminating the entire decision (see E.B. v. France [GC], no. 43546/02, 80, 22 January 2008). The Court therefore has to examine whether the decision introducing a distinction based on the applicant's place of residence was objectively and reasonably justified.

27. The Court acknowledges that in deciding whether or not a non-custodial sentence would be appropriate to attain the objectives of criminal justice, domestic courts may be called upon to consider the impact of the offender's personal circumstances on the manner of its enforcement. Nevertheless, reliance on any ground protected under Article 14 of the Convention would require a justification that is capable of passing for an objective and reasonable one.

28. In the present case the trial court simply indicated that the applicant had no permanent residence within the Moscow Region, which was not the region of the applicant's habitual residence (see paragraph 4 above) but the region where the offence had been committed and the sentence pronounced. It did not explain in any form the relevance of this fact to the decision to impose a custodial sentence. While acknowledging the existence of strong social links in the applicant's home town of Cheboksary, where he had good references from his neighbours and work colleagues, the district court did not justify why the benefit of a non-custodial sentence should have been conditional on the applicant's ability to have a permanent residence outside his home region and near the place where he had been tried and sentenced. The appellate court, for its part, did not address the discrimination argument made by the applicant's lawyer and offered no justification for the difference in treatment (see paragraph 7 above).

29. The Court notes that the Government failed to indicate in their observations what legitimate aim the difference in treatment pursued and how it was capable of being objectively and reasonably justified. The factors they highlighted were simply explanations of the mechanisms which led to the difference in treatment complained of (see, for a similar line of reasoning, Paraskeva Todorova, cited above, 45). In any event, it is not for the Court to speculate on the reasons underlying the decisions by the domestic courts when those reasons are not apparent from the courts' decisions (see Pichugin v. Russia, no. 38623/03, 138, 23 October 2012; Mamedova v. Russia, no. 7064/05, 79, 1 June 2006).

30. Accordingly, it has not been shown that the difference in treatment pursued a legitimate aim or had an objective and reasonable justification. There has therefore been a violation of Article 14 of the Convention, taken in conjunction with Article 5.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

31. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

32. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

33. The Government left the matter of the award to the Court's discretion.

34. The Court awards the applicant the amount claimed in respect of non-pecuniary damage, plus any tax that may be chargeable.

35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 14 of the Convention, taken in conjunction with Article 5;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points.

Done in English, and notified in writing on 27 March 2018, pursuant to Rule 77 2 and 3 of the Rules of Court.

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