Information Note on the Court’s case-law 216
Aleksandr Aleksandrov v. Russia – 14431/06
Judgment 27.3.2018 [Section III]
Refusal, as a result of applicant’s place of residence, to impose non-custodial sentence: violation
Facts – In 2005 a district Court in Moscow found the applicant guilty of kicking a police officer while intoxicated and sentenced him to one year’s imprisonment. When deciding on the appropriate sentence, the court 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, which was not the region of the applicant’s habitual residence but the region where the offence had been committed and the sentence had been pronounced. The applicant’s appeal was dismissed.
Law – Article 14 taken in conjunction with Article 5: In so far as the applicant’s place of residence had been explicitly mentioned as a factor in the sentencing decision, it had 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. The difference in treatment did not seem to follow from domestic law. The Criminal Code provided for the possibility for a person serving a suspended sentence to change his place of residence under certain conditions.
In deciding whether or not a non-custodial sentence would be appropriate to attain the objectives of criminal justice, domestic courts could 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 would require a justification that was capable of passing for an objective and reasonable one.
While acknowledging the existence of strong social links in the applicant’s home town, the district court had not justified 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 had neither addressed the discrimination argument made by the applicant’s lawyer nor offered any justification for the difference in treatment.
Accordingly, it had not been shown that the difference in treatment had pursued a legitimate aim or had an objective and reasonable justification.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
(See also Paraskeva Todorova v. Bulgaria, 37193/07, 25 March 2010, Information Note 128; and more generally: Moldovan and Others v. Romania (no. 2), 41138/98 and 64320/01, 12 July 2005, Information Note 77; Carson and Others v. the United Kingdom [GC], 42184/05, 16 March 2010, Information Note 128; Khamtokhu and Aksenchik v. Russia [GC], 60367/08 and 961/11, 24 January 2017, Information Note 203; and Carvalho Pinto de Sousa Morais v. Portugal, 17484/15, 25 July 2017, Information Note 209)