CASE OF SOZAYEV AND OTHERS v. RUSSIA (European Court of Human Rights)

THIRD SECTION
CASE OF SOZAYEV AND OTHERS v. RUSSIA
(Applications nos. 67685/14 and 35199/15)
JUDGMENT
STRASBOURG
13 October 2020

This judgment is final but it may be subject to editorial revision.

In the case of Sozayev 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 regard to:

the applications (nos. 67685/14 and 35199/15) 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 five Russian nationals (“the applicants”), on the dates indicated in the Appendix;

the decision to give notice to the Russian Government (“the Government”) of the applications;

the parties’ observations;

Having deliberated in private on 22 September 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. On 11 June 2013 the applicants participated in a public assembly in front of the State Duma in Moscow in response to the legislative ban on the ‘promotion of non-traditional sexual relations among minors’. They were arrested and convicted of an administrative offence.

THE FACTS

2. The applicants’ details are set out in the appended table. The applicants in application no. 67685/14 were represented by Ms T. S. Glushkova and the applicant in application no. 35199/15 was represented by Mr K. N. Koroteyev, lawyers of the Memorial Human Rights Centre.

3. 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.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

I. public assembly on 11 june 2013

5. On 6 June 2013 the mass media announced that the second and third readings of the bill banning the ‘promotion of non-traditional sexual relations among minors’ were to take place on 11 June 2013 in the State Duma.

6. On 11 June 2013 at around noon a group of opponents of the bill, including the applicants, came to the entrance of the State Duma building facing Georgiyevskiy Lane in Moscow. Journalists were present there, as well as a group of conservative Orthodox Christian activists who were supporting the bill. Riot officers from the Moscow Police Department stood between the opponents of the bill and the Christian activists. Christian activists chanted “Moscow is not Sodom!” The bill opponents chanted “Moscow is not Iran” and “Fascism shall not pass”.

II. the applicants’ arrest and conviction for administrative offences

7. At around 12.15 p.m. the police officers surrounded the anti-bill protesters and pushed them into police buses. According to the applicants, none of the activists supporting the bill were apprehended in this way. According to the Government, during the assembly the police also apprehended several supporters of the bill.

8. The applicants were transferred to various police stations in Moscow where the relevant administrative records were drawn up. The administrative offence records were based on the reports and explanations of the police officers who had arrested the applicants. On the same day, once the administrative records were finalised the applicants were released.

9. On various dates the domestic courts convicted the applicants under Article 20.2 § 5 of the Code of Administrative Offences (the CAO) and sentenced them to administrative fines (see the appended table).

10. Relying on the administrative records and reports and explanations of the police officers, the domestic courts found the applicants liable for violating the established procedure for the conduct of a public assembly on account of their participation in the unauthorised gathering. In particular, the courts considered unlawful that some of the applicants shouted slogans and/or failed to verify whether the gathering was legitimate.

RELEVANT LEGAL FRAMEWORK

11. Article 20.2 § 5 of the Code of Administrative Offences provides that violation by a participant in a public event of the established procedure for conducting a public event is punishable by a fine of 10,000 to 20,000 Russian roubles or up to forty hours of community work.

12. For a summary of other relevant domestic provisions see Navalnyy v. Russia [GC] (nos. 29580/12 and 4 others, §§ 46-47, 15 November 2018), and Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 223 and 226, 7 February 2017).

13. The domestic legal provisions governing administrative transfer (escorting) and detention are also set out in the case of Butkevich v. Russia (no. 5865/07, §§ 33-36, 13 February 2018).

14. According to Article 31.9 of the Code of Administrative Offences, if a decision imposing an administrative punishment is not enforced within two years from its entry into force, it can no longer be executed. The time when the enforcement of such a decision is suspended or stayed is excluded from the aforementioned period.

THE LAW

I. JOINDER OF THE APPLICATIONS

15. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

16. The applicants complained of disproportionate measures taken against them as participants of a peaceful public assembly, namely their arrest followed by their conviction for an administrative offence. They relied, expressly or in substance, on Article 11 of the Convention. Some applicants also invoked Article 10 of the Convention; however, this falls to be examined under Article 11, 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.”

17. The Court considers that in the present case the applicants’ intentions and conduct were covered by the notion of peaceful assembly. It finds that the applicants’ arrests, transfer to the police station and the ensuing sanctions constituted an interference with the right to freedom of peaceful assembly under Article 11 § 2.

18. The Government submitted that the gathering in the present case had not been a spontaneous one because the bill was introduced in March 2012. According to them, the applicants could organise a demonstration to express their disagreement with the bill without violating the procedure for a public event. They pointed out that the applicants in the present case had been convicted under 20.2 § 5 of the Code of Administrative Offences with reference to the failure to notify the authorities of the public gathering in accordance with the procedure prescribed by sections 5 and 7 of the Public Events Act.

19. It follows that the applicants were arrested, transferred to the police station and charged with administrative offences for the sole reason that the gathering as such had not been authorised.

20. The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and proportionality of interference with that freedom (see Oya Ataman v. Turkey, no. 74552/01, ECHR 2006‑XIV, and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009).

21. In the leading cases (see, for example, Frumkin v. Russia, no. 74568/12, 5 January 2016; Navalnyy and Yashin v. Russia, no. 76204/11, 4 December 2014; and Kasparov and Others v. Russia, no. 21613/07, 3 October 2013), the Court already found a violation in respect of issues similar to those in the present case.

22. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the measures applied to the applicants as peaceful participants in the public assembly did not correspond to a pressing social need and were thus not necessary in a democratic society.

23. These complaints are therefore admissible and disclose a violation of Article 11 of the Convention.

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE LAW

24. The applicants submitted other complaints which also raised issues under Articles 5 and/or 6 of the Convention, given the relevant well‑established case-law of the Court.

A. Admissibility

25. As regards the complaints under Article 5 of the Convention, the Government argued that the applicants had failed to exhaust domestic remedies. They submitted, in particular, that the applicants could have used the procedures under Chapter 25 of the Code of Civil Procedure and Article 1070 of the Civil Code. In the absence of any domestic case-law examples provided by the Government demonstrating effectiveness of these remedies and noting its previous findings in similar cases (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 95-101, 10 April 2018), the Court dismisses the Government’s objection as unsubstantiated.

26. The remaining complaints raising issues under the well-established case-law of the Court (see the appended table) are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

B. Merits

27. Having examined all the material before it, the Court concludes that these remaining complaints also disclose violations of Articles 5 and 6 of the Convention, as indicated in the appended table, in the light of its findings in Karelin v. Russia (no. 926/08, §§ 60-84, 20 September 2016); and Lashmankin and Others (nos. 57818/09 and 14 others, §§ 486‑92, 7 February 2017).

28. As regards Article 5 § 1, the finding of a violation relates to the arbitrary character of the applicants’ arrests on 11 June 2013. Having reached this conclusion, in the circumstances of this case the Court does not consider it necessary to examine Mr Samburov’s (application no. 35199/15) allegation that his detention on that day exceeded the statutory limit of three hours (see the appended table).

29. As regards Article 6 § 1, the complaints relying on this provision disclose a violation of the impartiality requirement on account of the absence of a prosecuting party (see the appended table). The Court notes that all the applicants except Mr Sozayev (application no. 67685/14) also complained under Article 6 §§ 1 and 3 (d) of the Convention about their alleged inability to cross-examine the police officers on whose written statements their conviction was based. The Court considers that as it has already concluded that the administrative proceedings, taken as a whole, were conducted in violation of the right to a fair hearing, it is not necessary to address the remainder of the applicants’ complaints under Article 6 §§ 1 and 3 (d) of the Convention (see Frumkin, cited above, § 168).

IV. ALLEGED VIOLATION OF article 14 of THE CONVENTION taken in conjunction with article 11

30. The applicants complained that the dispersal of their gathering which called for equality for LGBT people amounted to discrimination on grounds of their sexual orientation and political views. They relied on Article 14 of the Convention, taken in conjunction with Article 11. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground 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.”

31. The Government submitted that the dispersal of the gathering was not due to the sexual orientation of its participants but due to their failure to comply with the official notification procedure. They further submitted that the supporters of the bill had also been arrested on the same day in front of the State Duma.

32. The applicants reiterated their complaint arguing that other participants of the same assembly who came to support the bill had not been arrested and sanctioned. They highlighted that the administrative offence records in their cases quoted their slogans in support of the rights of LGBT people and that the courts’ decisions referred to the applicants’ chanting of ‘relevant slogans’ as a part of the behaviour for which they were persecuted (see paragraphs 6 and 10 above).

33. The Court notes that it has found a violation of Article 11 of the Convention on account of the fact that the applicants had been arrested and charged with administrative offences for the sole reason that they had not duly notified the authorities of their gathering (see paragraphs 16-23 above). Having regard to this conclusion and in the light of the material submitted to it by the parties, the Court does not consider that the complaint under Article 14 calls for a separate examination (see Moscow Branch of the Salvation Army v. Russia, no. 72881/01, § 100, ECHR 2006‑XI).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34. 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

35. The applicants requested that the amount of non‑pecuniary damages be determined by the Court.

36. As regards pecuniary damage, some of the applicants claimed the amounts of the administrative fines paid by them (see the appended table). Mr Samburov (application no. 35199/15) did not submit a pecuniary damage claim because he did not pay the fine. He requested the Court to find that any attempt to enforce the domestic decision ordering him to pay the fine would violate Article 11 of the Convention.

37. The Government contested the claims as unsubstantiated and unfounded.

38. Regard being had to the documents in its possession and its case‑law concerning violations of Article 11 on account of arbitrary arrests at peaceful assemblies, the Court considers it reasonable to award the applicants 5,000 euros (EUR) each in respect of non-pecuniary damage, plus any tax that may be chargeable, and the amounts indicated in the appended table in respect of pecuniary damage, plus any tax that may be chargeable.

39. As regards Mr Samburov (application no. 35199/15) who submitted that he had not paid the fine the Court notes that a decision ordering an administrative punishment is enforceable within two years from the time when the decision became final (see paragraph 14 above). This period would normally have expired in 2016 in respect of the applicant concerned. In the absence of any information as to enforcement of the relevant domestic decision and, in particular, stay or suspension of its enforcement, the Court assumes that the decision will not be enforced.

B. Costs and expenses

40. The applicants also claimed EUR 11,750 for the costs and expenses incurred before the domestic courts and before the Court.

41. The Government contested the claims on the grounds that there was no proof that the costs and expenses had actually been incurred.

42. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicants submitted no documentary proof, such as legal-services contracts with their representatives, payment receipts or invoices, to show that they had a legally enforceable obligation to pay for the lawyers’ services or that they had in fact paid for them. Regard being had to these considerations and its case-law, the Court rejects the applicants’ claim for costs and expenses (see Novikova and Others v. Russia, nos. 25501/07 and 4 others, § 235, 26 April 2016).

C. Default interest

43. 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. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 11 of the Convention in respect of all applicants;

4. Holds that there has been a violation of Articles 5 and 6 of the Convention as regards the other complaints raised under the well‑established case-law of the Court (see the appended table);

5. Holds that there is no need to examine the complaints under Article 5 § 1 of the Convention concerning deprivation of liberty in excess of three hours, the complaints under Article 6 §§ 1 and 3 (d) of the Convention concerning the cross-examination of certain witnesses, and the complaints under Article 14 of the Convention taken in conjunction with Article 11 of the Convention (see the appended table);

6. 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 at the rate applicable at the date of settlement:

(i) the amounts indicated in the appended table, plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 5,000 (five thousand euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

7. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 13 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                           Helen Keller
Deputy Registrar                             President

Appendix

IT

No. Application no. and date of introduction Applicant name

Date of birth

Place of residence

Nationality

Charge and penalty

Russian roubles

Final domestic decision details Other complaints under well-established case-law

(i) admissible and disclosing a violation

(ii) not necessary to examine 

Amount awarded for pecuniary damage per applicant
1. 67685/14

09/10/2014

 

Valeriy Valeryevich SOZAYEV

1979

St Petersburg

Russian

 

Article 20.2 § 5 of the CAO

Administrative fine RUB 10,000

 

Appeal decision Moscow City Court 08/04/2014 (i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of the administrative offence (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 486‑92, 7 February 2017);

Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v. Russia, no. 926/08, 20 September 2016).

 

(ii) Art. 14 in conjunction with Art. 11 – the dispersal of the gathering constituted discrimination on the grounds of sexual orientation and political opinion.

EUR 202
(two hundred and two euros)
Ivan Fedorovich BABITSKIY

1979

Moscow

Russian

 

Article 20.2 § 5 of the CAO Administrative fine RUB 10,000 Appeal decision Moscow City Court 30/07/2014 (i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of the administrative offence (see Lashmankin and Others, cited above, §§ 486‑92);

Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin, cited above).

 

(ii) Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant.

Art. 14 in conjunction with Art. 11 – the dispersal of the gathering constituted discrimination on the grounds of sexual orientation and political opinion.

EUR 202
(two hundred and two euros)
Svetlana Yuryevna MISHINA

1986

Moscow

Russian

 

Article 20.2 § 5 of the CAO Administrative fine RUB 10,000 Appeal decision Moscow City Court 28/05/2014 (i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of the administrative offence (see Lashmankin and Others, cited above, §§ 486‑92);

Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin, cited above).

 

(ii) Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant;

Art. 14 in conjunction with Art. 11 – the dispersal of the gathering constituted discrimination on the grounds of sexual orientation and political opinion.

EUR 202
(two hundred and two euros)
Yevgeniya Dmitriyevna SAMOSHKINA

1991

Moscow

Russian

 

Article 20.2 § 5 of the CAO Administrative fine RUB 10,000 Appeal decision Moscow City Court 28/07/2014 (i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of the administrative offence (see Lashmankin and Others, cited above, §§ 486‑92);

Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin, cited above).

 

(ii) Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant;

Art. 14 in conjunction with Art. 11 – the dispersal of the gathering constituted discrimination on the grounds of sexual orientation and political opinion.

EUR 202
(two hundred and two euros)
2. 35199/15

17/06/2015

 

Pavel Vyacheslavovich SAMBUROV

1986

Moscow

Russian

 

Article 20.2 § 5 of the CAO

Administrative fine RUB 10,000

 

 

Appeal decision Moscow City Court 18/12/2014 (i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of the administrative offence (see Lashmankin and Others, cited above, §§ 486‑92);

Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin, cited above).

 

(ii) Art. 5 § 1 – the applicant’s detention in excess of three hours was unlawful;

Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant;

Art. 14 in conjunction with Art. 11 – the dispersal of the gathering constituted discrimination on the grounds of sexual orientation and political opinion.

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