Smirnova v Russia

Parties (including notable third parties)

Applicants: Yelena Pavlovna Smirnova (Y.S.) and Irina Pavlovna Smirnova (I.S.); Respondent: Russian State

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Summary of Facts

The case of Smirnova v. Russia involves two Russian nationals, twin sisters Yelena Pavlovna Smirnova (Y.S.) and Irina Pavlovna Smirnova (I.S.), who were accused of defrauding a Moscow bank to obtain a loan on the security of a flat which did not in fact belong to them.

The applicants alleged that their pre-trial detention and the investigation of the criminal case against them had been too long. The first applicant also complained about a withholding of her identity papers by investigating authorities.

The criminal proceedings against them began on 5 February 1993, and they were arrested multiple times over the years.

Criminal proceedings:

Y.S. was arrested on August 26, 1995, and held in custody and charged with large-scale fraud. I.S. was initially not charged but was later implicated.

Y.S. was kept in custody until December 9, 1997, when she was released conditionally due to health issues. I.S. was arrested and held in custody on 30 March 1999, as the case against her was resumed.

Both sisters were released and re-arrested multiple times between 1999 and 2002 as investigations and trials progressed, with varying periods of detention.

Withholding of Identity Papers:

Y.S.'s national identity paper – the “internal passport” - was seized during her arrest on 26 August 1995 and enclosed in the case file at the Tverskoy District Court and not returned until 6 October 1999. This caused significant difficulties in her daily life, including inability to obtain employment, free medical care, inability to have a telephone installed in Y.S.’s home, inability to obtain notarial services, inability to have her marriage registered and having to pay an administrative fine when she was unable to produce the passport after being stopped by a police patrol for an identity check.

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Legal Arguments

The case was brought to the European Court of Human Rights, which ultimately found several violations of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’).

Unjustified detention was an alleged violation of article 5 of the Convention (Right to Liberty and Security)

Applicants

The applicants alleged a violation of article 5 of the Convention arguing that there were no valid reasons to justify their repeated detention.

The State

The State argued that the authorities had to detain the applicants because they fled from justice and violated the conditions of bail in that they did not inform the investigating authorities of their moves. It was justified by the risk that the applicants may flee, for example, abroad.

Lengthy criminal proceedings were an alleged violation of article 6 of the Convention (Right to a Fair Trial):

Applicants

The applicants claimed that the criminal proceedings lasted unreasonably long (over nine years) which violated their right to a trial within a reasonable time.

The State

The State argued that the length of the proceedings was mainly caused by the applicants' unwillingness to submit themselves to justice.

The withholding of the Y.S.’s identity papers was an alleged violation of Article 8 of the Convention (Right to Respect for Private and Family Life, unless in accordance with law)

Applicants

Y.S. alleged that the withholding of her identity paper, a document essential for everyday living in the country, significantly impaired her daily life, affecting her ability to work, receive medical care, and engage in other essential activities:

• a Russian citizen holding no passport is   impaired in his rights to a degree amounting to an interference with his   private life. The law requires that a person who wishes to find employment,   receive free medical care, receive mail, marry, vote, use notarial services, install a telephone line, save money by buying foreign currency or travel by   train or aeroplane must be able to produce a passport, and
• the interference was not in accordance with   the law. The withholding of the passport did not serve the interests of   national security because the charges of fraud were not amongst crimes   undermining fundamental principles of    Constitutional system or State security.

The State

The State submitted that the District Court needed to keep the passport in the case file because the sisters had several times used their similar appearance to confuse the investigating authorities.

Outcome

Article 5 (Right to Liberty and Security):

The interpretation of Article 5 emphasizes the protection of individual liberty and the necessity for judicial scrutiny of detention practices to ensure compliance with human rights standards. Article 5 guarantees the right to liberty and security of person.

The Court found that there had been violations of Article 5 §§ 1 and 3 regarding the applicants' repeated remand in custody.

Article 6 (Right to a Fair Trial):

The interpretation of Article 6 emphasizes the importance of fairness, equality, and justice in legal proceedings, ensuring that individuals are treated with dignity and respect within the judicial system. Article 6 guarantees the right to a fair trial in the determination of civil rights and obligations or any criminal charge against an individual.

The Court determined that in all the circumstances, there had been a violation of Article 6 § 1 as the length of the proceedings failed to satisfy the “reasonable time” requirement in the article.

Article 8 (Right to Respect for Private and Family Life):

The Court found a violation of Article 8 in relation to the withholding of Y.S.'s passport, which lasted from her arrest in August 1995 until October 1999.

• Private life is a broad term not susceptible to exhaustive definition. “It has nevertheless been outlined that it protects the moral and physical integrity of the individual … including the right to live privately, away from unwanted attention. It also secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his personality” (paragraph 95).
• The Convention became effective in Russia on 5 May 1998 and the Court found it had temporal jurisdiction over Y.S.'s situation, from the period after 5 May 1998.
• The deprivation of the passport represented a continuing interference with the applicant's private life because it was established that in their everyday life Russian citizens must prove their identity unusually often, for crucial needs (e.g. receiving medical care) and even when performing mundane (e.g.  buying train tickets) .

The Court ruled that this interference with her private life was not in accordance with the law, as the authorities failed to demonstrate a legal basis for retaining the passport after her release from custody.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention for the Protection of Human Rights and Fundamental Freedoms 1953	5, 6, and 8
Domestic	Code of Criminal Procedure of 1960	11(1), 89(1), 92, 96, 97, 101, 223-1, 239
Domestic	Decree of Russian Government No.828 of 8 July 1997	1, 5, and 21
Domestic	Code of Administrative Offences of 1984	178
Domestic	Moscow Government Decree No.713 of 17 July 1995

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Stephane Bourgeon and Muriel Cauvin, ‘Judgments and Decisions Issued by International Courts and other International Bodies on Human Rights in 2003’ (2005) 3(1) Journal of International Criminal Justice 296

• The article discussed the four basic reasons that the Court in Smirnova found were acceptable for refusing to grant provisional release, namely: the risk that accused will fail to appear for trial; the risk that the accused, if released will take action to prejudice the administration of justice; to commit further offences; or to cause public disorder.

Namitasha Goring et al, ‘The Windrush Scandal: A Review of Citizenship, Belonging and Justice in the United Kingdom’ (2020) 22(3) European Journal of Law Reform

• The article points out that the UK Human Rights Act 1998 does not have a clear provision guaranteeing a person's right to a nationality. Instead, this right is buried in ECtHR  decisions in which the Court stretched the scope of Article 8 of the Convention  to extend to nationality.

Oksana Kaplina and Anush Tumanyants, ‘ECtHR Decisions That Influenced the Criminal Procedure of Ukraine’ [2021] 2021(1) Access to Justice in Eastern Europe 102

• The article refers to the ECHR case-law of the four basic acceptable reasons for refusing bail, which are defined in para. 59 of the judgment in Smirnova v Russia namely: a) the risk that the accused will fail to appear for trial, b) the risk that the accused, if released, would take action to prejudice the administration of justice, c) commit further offences or d) cause public disorder. The authors point out that these reasons are fully reproduced in Article 177 of the Criminal Procedure Code in the Ukraine.

Anna S. Slavko and Oleksii I.  Datsenko, ‘Definition and Content of Privacy Right Against Private and Family Life of an Individual’ [2018] 2018(48) Journal of Eastern European Law 92

• The article references Smirnova v Russia. According to the English abstract, the article considers issues relating to the  private life of a person and their regulation through international law. The article discusses case law of the European Court of Human Rights relating to violations of the right to private life by the state. The authors argue that the concepts of ‘personal life’ and ‘family life’ are considered by the Court to be manifestations of private life.

Vasiliki E. Christou, ‘The Council Decision of 12 June 2007 on the Establishment, Operation and Use of the Second Generation Schengen Information System (SIS II)’ (2008) 14(3) Columbia  Journal of European Law 649.

• The article references Smirnova v Russia in discussing that Article 8 of the Convention, incorporated into EU-Law by Article 6.2.EU, and the right to privacy. The authors point out that the European Court of Justice has expressly referred to Article 8 and the right to privacy in cases concerning data collection and data processing. The ECJ  has taken a strict approach to the determination of interference with this right by applying the principle of proportionality: ‘Interference with the right to privacy by the collection of data has to serve a pressing social need and the measure employed has to be necessary and proportionate to the legitimate aim pursued by the state’. (652)