Last Updated on September 2, 2020 by LawEuro
THIRD SECTION
CASE OF KAZANTSEV AND OTHERS v. RUSSIA
(Application no. 61978/08)
JUDGMENT
STRASBOURG
16 June 2020
This judgment is final but it may be subject to editorial revision.
In the case of Kazantsev and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helen Keller, President,
María Elósegui,
Ana Maria Guerra Martins, judges,
and Olga Chernishova, Deputy Section Registrar,
Having deliberated in private on 26 May 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 61978/08) 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 three Russian nationals, Mr Aleksandr Mikhaylovich Kazantsev (“the first applicant”), Ms Nataliya Vladimirovna Kazantseva (“the second applicant”), Ms Olga Dmitriyevna Tsepilova (“the third applicant”).
2. The applicants were represented by lawyers of the EHRAC/Memorial Human Rights Centre, NGOs with offices in Moscow and London. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, 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 11 March 2011 the Government were given notice of the application.
4. The Government did not object to the examination of the application by the Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1955, 1954 and 1958, respectively. They live in St Petersburg. The first and the second applicants are spouses.
A. The events of 15 April 2007
6. On 15 April 2007 in St Petersburg a coalition of opposition groups organised an anti-government rally to campaign before the forthcoming parliamentary elections (as a part of a series of protest demonstrations called a “March of Dissenters”). The city administration authorised the rally in the form of a meeting to be held between noon and 2 p.m. at Pionerskaya Square.
7. The site of the rally was cordoned off by metal railings and several rows of police officers. The Government submitted that 6,100 police officers were deployed, including 400 officers from the Special Purpose Squad (ОМОН, hereinafter – “the riot police”).
8. The applicants attended the rally. According to them, when the rally ended the police directed all the protesters to the nearby Pushkinskaya metro station, having closed all neighbouring quarters to traffic and pedestrians. The applicants saw the riot police running towards them and indiscriminately hitting all those around them. The metro station was closed. They tried to escape via Zagorodnyy Prospect, but were blocked in between the police cordons. The police pushed the civilians into a small park. Some persons entered it via the gate while others had to climb over the fence.
9. As submitted by the Government, at the end of the rally a group of approximately 60 persons under the flags of the National Bolshevik Party attempted to break through the police cordon and to lead an unauthorised march via Zagorodnyy Prospect towards Moskovskiy Prospect. According to the Government, persons in that group shouted slogans and threw bottles and other objects at the police officers.
10. According to the Government’s version of events, the riot police had to use force in order to disperse that particular group of protesters and restore public order.
11. During these events, the first applicant was approached and severely beaten by a riot police officer. The officer hit him on the chest, ribs and shoulders and left him lying unconscious. Other protesters and the second applicant carried the first applicant to the ambulance van. He was later taken to the Mariinskiy Hospital. At the hospital the first applicant was diagnosed with “a closed fracture of the seventh rib, traumatic pneumothorax, a closed craniocerebral injury, brain concussion”.
12. During the same period, the third applicant was hit by a riot police officer with a rubber truncheon to the face. She started falling unconscious, but she was helped by other protesters. The third applicant was subsequently diagnosed with “a craniocerebral injury [sustained] on 15 April 2007, concussion, closed fractures of the nose bones and the right cheek bone”. The first and the third applicants remained in the hospital for several days before being released for outpatient treatment.
B. The investigation into the events of 15 April 2007
13. On 15 April 2007 the emergency doctors and the hospital informed the prosecution authorities that the first and the third applicants had applied for medical assistance.
14. In April 2007 the applicants submitted their complaints to the St Petersburg prosecution authorities about the police brutality. They submitted additional complaints in May 2007.
15. On 21 June 2007 a criminal case was opened.
16. On 27 August 2007 the third applicant was granted the status of a victim in the criminal case.
17. On 8 October 2007 the third applicant submitted, inter alia, that the police officer who had attacked her wore a helmet and had no identification markings.
18. On 15 June 2007 and 15 November 2007 the domestic courts found that the prosecution authorities had failed to comply with the time-limits established for examination of individual complaints, had unlawfully denied the applicants access to the case-file of the enquiry and had failed to ensure their procedural rights during the criminal investigation.
19. On 30 November 2007 the first and the second applicants were granted the status of victims in the criminal case.
20. On 4 December 2007 the first applicant gave to the investigator the photographs from newspapers depicting the officer who looked like the police officer who had attacked him. The officer had a number indicated on his helmet. It was later established that the photo was made in another city one day before the rally. The investigator attempted to identify the officer by the available number. He got a reply from the police that the helmet with that number had not been used on the day of the events.
21. Between December 2007 and June 2009 the criminal investigation was suspended seven times due to failure to identify the police officers who had attacked the applicants.
22. On 25 June 2009 the criminal proceedings were stayed as the perpetrators could not be identified. The first applicant challenged the decision to stay the proceedings arguing that the investigator had not taken all the necessary steps to identify the police officers involved in the attacks.
23. On 29 April 2011 the Oktyabrskiy District Court of St Petersburg found the decision of 25 June 2009 lawful. The court noted that during the investigation it was established that on 15 April 2007 some unidentified police officers had exceeded their official powers and beaten a number of protesters. The court further noted that the victims and witnesses could not identify the police officers due to the fact that the officers were wearing helmets and had no identification markings. The photographs provided by one of the witnesses did not reveal any relevant information for the investigation. The court acknowledged that in the first applicant’s case there had been an attempt to identify the police officer concerned by the number on his helmet (seen on the photos provided by the applicant himself). The court finally observed that during the criminal investigation some police officers deployed during the rally had been questioned and video and photo materials had been analysed. However, none of the above measures allowed to identify the perpetrators. The court, therefore, rejected the applicant’s complaint.
24. On 21 June 2011 the St Petersburg City Court upheld the decision of 29 April 2011.
25. It appears that the criminal proceedings are still pending.
II. RELEVANT DOMESTIC LAW
26. For a summary of the relevant domestic law provisions governing use of force by the police see Annenkov and Others v. Russia (no. 31475/10, §§ 68 and 69, 25 July 2017).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
27. The first and the third applicants complained under Articles 3 and 13 of the Convention that they had been ill-treated by the riot police on 15 April 2007 and that there had been no effective investigation into the events. This complaint falls to be examined under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
28. 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.
B. Merits
1. The parties’ submissions
29. The first and the third applicants argued that the injuries inflicted upon them by the police officers constituted inhuman treatment. They further argued that the investigation was inadequate as it had been opened with a delay; it lacked requisite promptness and had not been thorough. The applicants claimed, in particular, that the authorities had not taken the necessary steps to find out the unit and/or the names of the policemen in charge of dispersing the rally. They further submitted that their procedural rights were not guaranteed during the investigation. They maintained that Article 3 was violated in its substantive and procedural limb.
30. The Government acknowledged that on 15 April 2007 certain police officers inflicted injuries on the two applicants concerned. They argued, however, that the investigation into those events was effective. According to the Government, the fact that there existed an objective obstacle to identifying the perpetrators (absence of any identification markings on the policemen’s uniforms) did not deem the investigation ineffective. They finally submitted that since a final decision in the criminal case had not been adopted the applicants could not claim that they had no effective remedy at their disposal.
2. The Court’s assessment
(a) The ill-treatment of the first and the third applicant
31. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).
32. Turning to the present case, the Court observes that it was not in dispute between the parties that the applicants concerned were beaten by some unidentified police officers on the day of the rally. Neither was it questioned that the inflicted injuries were sufficiently serious to reach the “minimum level of severity” required under Article 3 of the Convention. The Court also notes the authorities’ conclusion that on 15 April 2007 some police officers exceeded their powers and inflicted bodily harm to a number of protesters (see paragraph 23 above).
33. In these circumstances the Court concludes that the violent acts of the police in respect of the first and the third applicants amounted to inhuman and degrading treatment.
34. There has accordingly been a violation of Article 3 under its substantive limb as regards the first and the third applicants.
(b) Alleged lack of an effective investigation
35. The Court reiterates that, where an individual raises an arguable claim that he has been seriously ill-treated by agents of the State in breach of Article 3 of the Convention, there should be a thorough and effective investigation (see, among others, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, and Gäfgen v. Germany [GC], no. 22978/05, § 117, 1 June 2010).
36. While not every investigation should necessarily come to a conclusion which coincides with a claimant’s account of events, any investigation should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002‑II).
37. The investigation into credible allegations of ill-treatment must be thorough. This means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others, cited above, §§ 103-106). They must take all reasonable steps available to them to secure evidence concerning the incident, including eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 104-11, ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). In addition, the Court has often assessed whether authorities reacted promptly to complaints at the relevant time, consideration being given to the date investigations began, delays in taking statements, and the length of time taken to complete the investigation Labita v. Italy [GC], no. 26772/95, §§ 133-36, ECHR 2000‑IV, and Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001). Any deficiency in an investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the applicable standard.
38. Turning to the present case, the Court notes that the applicants raised their “arguable” allegations of ill-treatment by the police officers shortly after 15 April 2007. Their complaints were supported by relevant medical evidence, indicating various degrees of injuries sustained as a result of the alleged ill-treatment. Nevertheless, it took the authorities two months to open a criminal investigation. It took the authorities another two and five months in order to grant the first and the third applicant respectively the official victim status in the criminal proceedings. The Court has not been provided with any plausible explanation for these delays.
39. The Court observes that as a result of four years of criminal investigation the authorities did not manage to identify the officers responsible for the ill-treatment. As an “objective obstacle” to such identification the authorities cited the fact that the police officers concerned were wearing helmets and had no identification markings on their uniform. The Court accepts that the wearing of helmets and a lack of identification markings on the police officers had complicated the identification of the perpetrators. It also observes that during the investigation the third applicant and the eye-witnesses involved in the case submitted that they could not identify the police officers responsible for the attacks as the officers had been wearing closed helmets and their uniforms had had no identification markings. At the same time, the first applicant and a witness provided photos featuring policemen that could be possible perpetrators. The investigator checked the version suggested by the first applicant, while the materials submitted by the witness were considered irrelevant. It further appears from the decision of 29 April 2011 that the investigators questioned some police officers responsible for cordoning during the rally and examined other photo and video materials (see paragraph 23 above). However, the file contains no details concerning those officers (their identities, location and role at the time of the ill-treatment) or their submissions. Neither does it contain a description or analysis of the video and photo materials referred to in the decision of 29 April 2011. It does not follow from the case-file that the investigating authorities took any steps apart from the mentioned above in order to establish the identities of the police officers responsible for the attacks, or that the applicants were duly informed of the substance of the investigation (see Chitayev v. Russia, no. 59334/00, §§ 163-66, 18 January 2007). The material before the Court, therefore, does not indicate that the investigation was thorough or public.
40. The foregoing considerations are sufficient to enable the Court to conclude that the investigation fell short of the Convention requirements.
41. There has accordingly been a violation of Article 3 of the Convention in its procedural limb as regards the first and the third applicants.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
42. The applicants complained about disruptive and violent behaviour by the police in respect of the protestors. They relied on Article 11 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
43. The Government contested that argument. They submitted that after the rally of 15 April 2007 a group of its participants attempted to lead an unauthorised march (see paragraph 9 above). They argued that the persons in that group were shouting provocative slogans and threw bottles at the police officers. The Government further argued that the police used force in respect of those persons in order to restore public order.
44. The applicants argued in reply that the police intervention had constituted an interference with their rights under Article 11 of the Convention. They submitted that they were not among those acting aggressively or resisting the police orders. They further submitted that they were attacked on their way to Pushkinskaya metro station, in the opposite direction from Moskovskiy Prospect where the group of the alleged provocateurs headed. In their view, the police acts were intended to dissuade people from participating in public assemblies.
45. The Court refers to the principles established in its case-law regarding the right to freedom of peaceful assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and the principles concerning the proportionality of interference with that right (see Oya Ataman v. Turkey, no. 74552/01, ECHR 2006‑XIV, and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009).
46. The Court reiterates that the interference does not need to amount to an outright ban, legal or de facto, but can consist in various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an assembly and those, such as punitive measures, taken afterwards (see Ezelin v. France, 26 April 1991, § 39, Series A no. 202).
47. An individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour (see Ezelin, cited above, § 53; Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004; and Primov and Others v. Russia, no. 17391/06, § 155, 12 June 2014). Even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not as such fall outside the scope of Article 11 § 1 of the Convention, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that Article (see Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 103, ECHR 2011).
48. Turning to the present case, the Court notes that it is not disputed between the parties that the applicants participated in the rally of 15 April 2007 and that their conduct was peaceful. It has not been alleged that they were among those who had, according to the Government, disturbed the public order during the assembly (see paragraphs 9-10 above).
49. The Court further notes that it has found a violation of Article 3 of the Convention on account of the first and the third applicants’ ill-treatment by police during the public assembly (see paragraph 34 above). It also observes that the domestic courts established that the police had exceeded their powers during the operation on 15 April 2007 (see paragraph 23 above). The Court, therefore, considers that the intervention by the police and the ill-treatment constituted an interference with the applicants’ right under Article 11 of the Convention (İzci v. Turkey, no. 42606/05, § 82, 23 July 2013).
50. The Court is ready to accept that in the present case the use of force by police was “prescribed by law” and pursued the legitimate aim of prevention of disorder and crime. However, given its above findings as regards the ill-treatment in respect of the first and the third applicants, and the findings of the domestic courts as regards the excessive use of power by police during the public assembly on 15 April 2007, the Court considers that the intervention of the police and the force applied were disproportionate and not necessary within the meaning of Article 11 § 2 of the Convention. In the Court’s view, the use of force by police could have had a chilling effect and discouraged the applicants and others from taking part in similar meetings.
51. These complaints are therefore admissible and disclose a breach of Article 11 of the Convention.
52. There has accordingly been a violation of Article 11 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
53. 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.”
A. Damage
54. The applicants claimed non-pecuniary damage for violation of their rights under Article 3 and Article 11 of the Convention. They left the determination of the amount at the Court’s discretion. The first and the second applicants further claimed 125,558 Russian roubles (RUB) and RUB 2,250, respectively, in respect of pecuniary damage. They submitted copies of their medical bills in support of these claims.
55. The Government accepted that the first and the second applicants’ claims for pecuniary damage were not ill-founded.
56. The Court takes note of the Government’s agreement with the claims for pecuniary damage and awards the first and the second applicants 3,020 euros (EUR) and EUR 54, respectively, under this head. The Court also awards the first and the third applicants EUR 19,500 each and the second applicant EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
57. The applicants also claimed EUR 4,020 and 310 pounds sterling (GBP) for the costs and expenses. They requested that the payment be made in GBP directly to the representative’s bank account in the United Kingdom.
58. The Government contested these claims as unsubstantiated and unnecessary.
59. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 2,500 in respect of costs and expenses.
C. Default interest
60. 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 3 of the Convention in its substantive and procedural aspects in respect of Mr Kazantsev and Ms Tsepilova;
3. Holds that there has been a violation of Article 11 of the Convention in respect of each applicant;
4. Holds
(a) that the respondent State is to pay the applicants, within three months the following amounts, to be converted into the currency of the respondent State, except for the payment of costs and expenses, at the rate applicable at the date of settlement:
(i) in respect of non-pecuniary damage: EUR 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable, to Mr Kazantsev; EUR 4,000 (four thousand euros), plus any tax that may be chargeable, to Ms Kazantseva; EUR 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable, to Ms Tsepilova;
(ii) in respect of pecuniary damage: EUR 3,020 (three thousand twenty euros), plus any tax that may be chargeable, to Mr Kazantsev and EUR 54 (fifty four euros), plus any tax that may be chargeable, to Ms Kazantseva;
(iii) in respect of costs and expenses: EUR 2,500 (two thousand five hundred euros) to the applicants, plus any tax that may be chargeable, to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid directly into the representative’s bank account in the United Kingdom;
(b) that 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;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 16 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Helen Keller
Deputy Registrar President
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