691\/15<\/a>, \u00a7 69, 26 June 2018).<\/p>\n34.\u00a0\u00a0The Court reiterates that the application of investigative measures involving internment in a specialised medical facility shall be accompanied with safeguards against arbitrariness and abuse. Where proceedings for judicial authorisation of a person\u2019s placement in a psychiatric facility without consent are concerned, personal participation of the individual in the proceedings and the benefit of legal representation, where appropriate, constitute such important safeguards against arbitrariness (see Trutko, cited above, \u00a7\u00a7 39-40, with further references).<\/p>\n
35.\u00a0\u00a0In the present case, the applicant was not given advance notice of the hearing on the application for his committal. Knowing that the applicant would come to the court to hear the decision on the complaint about the investigator\u2019s past actions, the investigator took advantage of the applicant\u2019s presence in the court premises and escorted him directly to the room where the application for committalwas heard (see paragraph 24 above).<\/p>\n
36.\u00a0\u00a0The applicant did not have the benefit of legal representation in those proceedings. The investigator had restricted his access to defence counsel M., his previous representative, on the spurious ground that he had needed to question her as an eye-witness to the offence. The applicant refused the services of legal-aid lawyer S. but he was not given time to make alternative arrangements for his defence or retain another defence counsel. In these circumstances, the Court finds that the applicant was not afforded adequate time to study the materials or to prepare his defence.<\/p>\n
37.\u00a0\u00a0The Court reiterates that the issues of proportionality and fair balance between the importance in a democratic society of securing compliance with a lawful order of a court, and the importance of the right to liberty, assume particular significance in this type of cases (see Gatt v.\u00a0Malta, no. 28221\/08, \u00a7 40, ECHR 2010). However, as it happened, the District Court did not undertake an independent assessment of proportionality but essentially reiterated the contents of the investigator\u2019s application. It did not mention that the applicant was charged with non-violent offences or that he had not entered an insanity or diminished responsibility plea or claimed being unable to stand trial. Even though the court acknowledged that the applicant had submitted voluntarily to an outpatient psychiatric assessment which returned inconclusive findings, it did not hear the experts who had been in charge of that assessment or afford the applicant an opportunity to cross-examine those experts. Nor did it consider the effect of separation of the applicant from his elderly mother whose sole guardian he was or weigh the needs of the investigation against her well-being. The Court finds that the level of scrutiny applied by the District Court to the matter was manifestly inadequate.<\/p>\n
38.\u00a0\u00a0The Court notes that the committal order was enforced immediately, even in the absence of any indications of urgency; the applicant having been taken to the hospital directly from the court building.It is recalled that Article 5 \u00a7 1 (b) of the Convention requires that, before a person may be deprived of liberty for \u201cnon-compliance\u201d with a \u201clawful order of a court\u201d, that person must have had an opportunity to comply with such an order and have failed to do so (see Beiere v. Latvia, no. 30954\/05, \u00a7\u00a049, 29\u00a0November 2011). At the very least an individual may be considered to have had an opportunity to comply with an order when he was duly informed of it and either implicitly or explicitly refused to follow it (ibid., \u00a7\u00a7 49-50). In the present case nothing indicates that the applicant was given an opportunity to go to the hospital of his own free will before the order was enforced by the authorities.<\/p>\n
39.\u00a0\u00a0The Court finally notes that an appeal against the committal order was heard more than a month after the applicant\u2019s release (see paragraph 28 above). The appeal court did not scrutinise the applicant\u2019s arguments relating to the absence of defence counsel, the impact of his separation from his mother or other relevant matters.<\/p>\n
40.\u00a0\u00a0Having regard to the inadequate review of the matter by the domestic courts which was not attended with sufficient guarantees against arbitrariness, the Court finds that the proceedings leading to the applicant\u2019s seven-day internment in a psychiatric hospital did not meet the lawfulness requirement of Article 5 of the Convention rendering his detention arbitrary (compare Trutko, cited above, \u00a7\u00a044).<\/p>\n
41.\u00a0\u00a0There has therefore been a violation of Article 5 \u00a7 1 of the Convention.<\/p>\n
II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n
42.\u00a0\u00a0The applicant complained that the removal of counsel M. had undermined the fairness of the criminal proceedings against him and his right to defend himself guaranteed by Article 6 of the Convention which reads, in the relevant parts, as follows:<\/p>\n
\u201c1.\u00a0\u00a0In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing …<\/p>\n
…<\/p>\n
3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n
…<\/p>\n
(c)\u00a0\u00a0to defend himself in person or through legal assistance of his own choosing …\u201d<\/p>\n
43.\u00a0\u00a0The Government submitted that there had been no breach of the lawyer-client privilege because defence council M. had not been asked to disclose any confidential information. The investigator\u2019s decision to question her as an eye-witness had been justified and there had been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention.<\/p>\n
A.\u00a0\u00a0Admissibility<\/strong><\/p>\n44.\u00a0\u00a0The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n
B.\u00a0\u00a0Merits<\/strong><\/p>\n45.\u00a0\u00a0The Court has recently summarised the principles guiding its assessment of the fairness of a trial in case of removal of defence counsel of the defendant\u2019s choosing (see Dvorski v. Croatia [GC], no. 25703\/11, \u00a7\u00a7\u00a076-82, ECHR 2015). It has reiterated that the national authorities must have regard to the defendant\u2019s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice. Where such grounds are lacking, a restriction on the free choice of defence counsel would entail a violation of Article 6 \u00a7 1 together with paragraph 3 (c) if it adversely affected the applicant\u2019s defence, regard being had to the proceedings as a whole (ibid., \u00a7 79).<\/p>\n
46.\u00a0\u00a0On the first issue whether or not there were relevant and sufficient grounds for overriding the applicant\u2019s wish to be represented by defence counsel M., the Court refers to the findings of the domestic courts. They established that, since M. had refused to testify in the proceedings against the applicant, no conflict of interest could have arisen and there were no legal grounds to restrict the applicant\u2019s access to M. (see paragraph 23 above). It follows that the removal of counsel M. was not necessary in the interests of justice.<\/p>\n
47.\u00a0\u00a0On the second issue whether or not the fairness of the proceedings as a whole was prejudiced, the Court has little information on the progress of the investigation during the period in which M. was replaced with legal-aid lawyer S. It has found above that M.\u2019s absence from the proceedings relating to the applicant\u2019s committal to a psychiatric hospital was prejudicial for his right to liberty. However, that finding does not entail, on its own, a violation of the right to a fair trial as long as the evidence obtained in that way was not used against himat the trial. The forensic psychiatrists concluded to the applicant\u2019s sanity and he did not claim otherwise. It does not therefore appear that the expert report was in any way prejudicial for his line of defence. As noted above, the Court does not have information about any other investigative measures involving the applicant, such as interviews, which could have resulted in additional incriminating evidence being collected against him (compare Dudchenko v. Russia, no. 37717\/05, \u00a7 158, 7\u00a0November 2017).<\/p>\n
48.\u00a0\u00a0In the light of the above, the Court finds that M.\u2019s removal as defence counsel for the applicant did not irretrievably prejudice the applicant\u2019s defence rights or undermine the fairness of the proceedings as a whole.<\/p>\n
49.\u00a0\u00a0There has therefore been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention.<\/p>\n
III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1<\/p>\n
50.\u00a0\u00a0The applicant complained of the fact that the investigator had removed his electronic devices and rejected his request to make copies of his documents. He relied on Article 1 of Protocol No. 1 which reads as follows:<\/p>\n
\u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.<\/p>\n
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\u201d<\/p>\n
51.\u00a0\u00a0The Government submitted that Article 1 of Protocol No. 1 had not been breached.<\/p>\n
A.\u00a0\u00a0Admissibility<\/strong><\/p>\n52.\u00a0\u00a0The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n
B.\u00a0\u00a0Merits<\/strong><\/p>\n53.\u00a0\u00a0The Court has examined a similar situation in the case of Smirnov v.\u00a0Russia (no. 71362\/01, \u00a7\u00a7 50-59, 7 June 2007), in which it found a violation of Article 1 of Protocol No. 1 on account of an unjustified retention of Mr Smirnov\u2019s computer.<\/p>\n
54.\u00a0\u00a0The applicant in the present case was the lawful owner of the electronic devices which the investigator removed from his flat and kept as physical evidence in a criminal case. This situation falls to be examined from the standpoint of the right of a State to control the use of property (see Smirnov, cited above, \u00a7 54). The decision to retain the devices was based on the provisions of the Code of Criminal Procedure and could be considered necessary in the interests of proper administration of justice, which is a \u201clegitimate aim\u201d in the general interest of the community (ibid., \u00a7 57).<\/p>\n
55.\u00a0\u00a0As in Smirnov, the Court notes that the devices were not an object, instrument or product of any criminal offence. What was valuable and instrumental for the investigation was the information stored on them (ibid., \u00a7 58). After that information had been examined and copied by the investigator(see paragraph 13 above), there was no apparent reason for the continued retention of the devices. No such reason has been advanced in the domestic proceedings or before the Court. Nevertheless, the devices were kept by the domestic authorities for approximately three years until after the conviction in the criminal proceedings had become final. The Court also notes that the applicant used the computer and other devices for drafting legal documents in defence of his rights and lawful interests. The retention of the computer not only caused the applicant personal inconvenience but also undermined his ability to defend himself.<\/p>\n
56.\u00a0\u00a0Having regard to the above considerations, the Court finds that the Russian authorities failed to strike a \u201cfair balance\u201d between the demands of the general interest and the requirement of the protection of the applicant\u2019s right to peaceful enjoyment of his possessions. There has therefore been a violation of Article 1 of Protocol No. 1.<\/p>\n
IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4<\/p>\n
57.\u00a0\u00a0The applicant complained that the authorities had prohibited him from leaving Novosibirsk for the entire duration of criminal proceedings in breach of Article 2 of Protocol No. 4, which reads as follows:<\/p>\n
\u201c1.\u00a0\u00a0Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement …<\/p>\n
…<\/p>\n
3.\u00a0\u00a0No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.<\/p>\n
4.\u00a0\u00a0The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.\u201d<\/p>\n
58.\u00a0\u00a0The Government submitted that there had been no violation of Article 2 of Protocol No. 4.<\/p>\n
A.\u00a0\u00a0Admissibility<\/strong><\/p>\n59.\u00a0\u00a0The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n
B.\u00a0\u00a0Merits<\/strong><\/p>\n60.\u00a0\u00a0The Court reiterates that the prohibition on leaving a specific town, such as that imposed on the applicant, constituted an interference with his right to freedom of movement. The State may legitimately apply various preventive measures restricting the liberty of a defendant in criminal proceedings in order to ensure their efficient conduct, provided that such a measure, and in particular its duration, is in accordance with the law and proportionate to the aims sought (see Rosengren v. Romania, no.\u00a070786\/01, \u00a7 33, 24 April 2008, and Fedorov and Fedorova v. Russia, no. 31008\/02, \u00a7\u00a041, 13 October 2005).<\/p>\n
61.\u00a0\u00a0The applicant\u2019s freedom of movement was initially restricted in August 2007 in the framework of the first criminal case (see paragraph 8 above). The restriction may be assumed to have expired after the conclusion of the proceedings in that case in December 2010. By that time the second criminal investigation was already underway and an identical restriction was imposed in May 2011. It was eventually lifted after the end of the proceedings in the second criminal case in February 2013. The Court reiterates that, for the purposes of the Convention proceedings, the two periods must be considered cumulatively (see Ivanov v. Ukraine, no.\u00a015007\/02, \u00a7 93 in fine, 7 December 2006). It follows that the overall restriction period to be taken into consideration lasted approximately six years.<\/p>\n
62.\u00a0\u00a0The Court has previously accepted that an obligation not to leave the area of one\u2019s residence is the least intrusive measure involving a restriction on one\u2019s liberty (see Fedorov and Fedorova, cited above, \u00a7 41). However, its excessive duration could be sufficient, on its own, to reach the conclusion that it was disproportionate to the legitimate aim it sought to achieve (see Ivanov, cited above, \u00a7 96; Rosengren, cited above, \u00a7 38; Luordo v. Italy, no.\u00a032190\/96, \u00a7 96, ECHR 2003-IX; Goffi v. Italy, no.\u00a055984\/00, \u00a7 20, 24\u00a0March 2005; Bassani v. Italy, no. 47778\/99, \u00a7 24, 11\u00a0December 2003). The length of the impugned restriction in the instant case was longer than that in the cases in which it had not given rise, in combination with other elements particular to those cases, to the finding of a violation of Article 2 of Protocol No. 4 (see Antonenkov and Others v.\u00a0Ukraine, no. 14183\/02, \u00a7\u00a7\u00a059-67, 22\u00a0November 2005, and Fedorov and\u00a0Fedorova, cited above). However, the distinguishing feature of the present case is that the applicant lived in Moscow but he was required to stay in Novosibirsk where the offences had been allegedly committed. Novosibirsk is located more than 3,300 kilometres by road or approximately four hours by airplane from the area of the applicant\u2019s ordinary residence and he was not allowed to go back even for a short period of time (compare with Mia\u017cd\u017cyk v. Poland, no.\u00a023592\/07, \u00a7\u00a7 39 and 41, 24\u00a0January 2012, where the applicant was forced to stay more than five years outside his country of habitual residence). Being required to stay so long and so far from the place where he had previously lived must have considerably disrupted the applicant\u2019s life and exposed him to financial hardship, yet there is no indication that the domestic authorities had taken any account of that fact.<\/p>\n
63.\u00a0\u00a0The Court notes that the travel restriction was automatically applied for the entire duration of the proceedings (compare Fedorov and Fedorova, cited above, \u00a7 42). The Russian law did not require that the impugned measure be reviewed at regular intervals by the investigator or by the courts. The judicial challenges to the restriction that the applicant mounted were invariably dismissed by reference to the same facts that had justified the initial application of the measure (see paragraph 9 above). However, the Court reiterates that the necessity for maintaining the restriction will inevitably diminish with the passage of time, especially where no further evidence of the applicant\u2019s intention to abscond is uncovered during the course of the investigation (see Luordo, \u00a7 96, and Rosengren, \u00a7\u00a039, both cited above).<\/p>\n
64.\u00a0\u00a0The applicant actively sought to leave Novosibirsk and the permission to do so was refused on several occasions (compare Fedorov and\u00a0Fedorova, cited above, \u00a7\u00a7 44-46). When he asked for the restriction to be lifted and committed himself to attending all hearings and interviews, the Regional Court confined its analysis to the affirmation that the investigation would suffer if the applicant were to leave Novosibirsk, without explaining why it believed that his undertaking to appear was insufficient to guarantee his attendance (see paragraph 9 above). The applicant\u2019s arguments relating to the needs of his dependent mother were not addressed by the domestic courts in any form.<\/p>\n
65.\u00a0\u00a0In sum, the Court finds that the domestic authorities did not adduce sufficient reasons for maintaining the travel restriction for such a long time. The interference with the applicant\u2019s right to freedom of movement was not necessary in a democratic society.<\/p>\n
66.\u00a0\u00a0There has therefore been a violation of Article 2 of Protocol No.\u00a04.<\/p>\n
V.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n
67.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n
\u201cIf 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.\u201d<\/p>\n
68.\u00a0\u00a0The applicant claimed 50,000 euros (EUR) in respect of non\u2011pecuniary damage and EUR 18,900 in respect of legal costs, representing sixty-three hours of his representative\u2019s work at the hourly rate of EUR 300.<\/p>\n
69.\u00a0\u00a0The Government submitted that Article 41 was to be applied in accordance with the established case-law.<\/p>\n
70.\u00a0\u00a0The Court awards the applicant EUR 10,000 in respect of non\u2011pecuniary damage, plus any tax that may be chargeable. It also considers it reasonable to award the sum of EUR 2,400 for the proceedings before the Court, plus any tax that may be chargeable on the applicant, payable into the representative\u2019s bank account.<\/p>\n
71.\u00a0\u00a0The 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.<\/p>\n
FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n
2.\u00a0\u00a0Holdsthat there has been a violation of Article 5 \u00a7 1 of the Convention;<\/p>\n
3.\u00a0\u00a0Holdsthat there has been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention;<\/p>\n
4.\u00a0\u00a0Holdsthat there has been a violation of Article 1 of Protocol No. 1;<\/p>\n
5.\u00a0\u00a0Holdsthat there has been a violation of Article 2 of Protocol No. 4;<\/p>\n
6.\u00a0\u00a0Holds<\/p>\n
(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three monthsthe following amounts,to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:<\/p>\n
(i)\u00a0\u00a0EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n
(ii)\u00a0\u00a0EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, payable into the representative\u2019s bank account;<\/p>\n
(b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n
7.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n
Done in English, and notified in writing on 23 October 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n
Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Branko Lubarda
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n