Zakharov and Varzhabetyan v. Russia (European Court of Human Rights)

Information Note on the Court’s case-law 244
October 2020

Zakharov and Varzhabetyan v. Russia35880/14 and 75926/17

Judgment 13.10.2020 [Section III]

Article 3
Degrading treatment
Effective investigation

Police brutality against peaceful participants of the Bolotnaya Square political rally and lack of effective investigation: violation

Article 11
Article 11-1
Freedom of peaceful assembly

Police brutality against peaceful participants of the Bolotnaya Square political rally: violation

Facts – The applicants participated in a political rally at Bolotnaya Square on 6 May 2012. Although legal and initially peaceful, the rally culminated in clashes between police and protestors, and was dispersed by the police. During the dispersal, both applicants alleged that, despite their peaceful conduct, they were hit on the head by the police with a rubber truncheon. They unsuccessfully challenged the authorities’ refusal to institute criminal proceedings in this respect.

Law –

Article 3 (procedural aspect):

The events in question had been the subject of a large-scale domestic inquiry resulting in criminal proceedings in which the organisers had been convicted of mass disorder and a number of other individuals had been convicted of violent acts against the police. However, the purpose of those proceedings had not been to attribute responsibility to the State or police officers personally for the clashes and the consequent damage. Police officers’ participation in those proceedings had been limited to testifying as victims or witnesses in respect of the mass disorder perpetrated by the protesters, and the courts had not scrutinised their conduct vis-à-vis the protesters.

In the circumstances, it was sufficiently clear that there might also have been ill-treatment of the participants in the public event. That should have triggered an official investigation, even in the absence or delayed submission of individual complaints.  The investigating authorities had been fully capable of identifying and promptly questioning both applicants, and taking independent, tangible and effective investigative measures aimed at: verifying the causes of their injuries; identifying the culprits, for example by obtaining a list of the police officers who had been involved in the operation; questioning the police officers involved; and identifying and questioning other witnesses and medical personnel who had dealt with the applicants.

However, the investigating authorities had done none of this as soon as the matter had come to their attention. While they had received several specific complaints, as well as information about the applicants’ injuries which had come from other sources, that had not been considered sufficient to proceed with the investigation. The authorities had not disclosed the particular steps taken within the internal inquiry procedure, apart from a telephone call to the first applicant. In sum, the authorities had failed to carry out an effective investigation capable of establishing whether the use of force by the police had been indispensable and proportionate.

Conclusion: violation (unanimously)

Article 3 (substantive aspect):

The present case was the first time that the Court had dealt with individual complaints relating to ill-treatment by police during the dispersal of the Bolotnaya Square rally.

During the domestic pre-investigation inquiries the question of exactly how the injuries had been inflicted had not been addressed. The Investigation Committee’s decisions stated that the police had legitimately used force when arresting the protesters who had acted unlawfully and shown resistance Although the applicants had not been among those arrested or accused of acting violently, the general conclusions of the investigators could be understood as implying that force had also been used by the police in respect of the applicants.

In light of the foregoing, and noting the applicants’ consistent and detailed explanations about the origin of their injuries which were supported by medical certificates, photographs or video material, as well as the lack of an effective investigation into their  allegations, and consequently the absence of any alternative and plausible explanations for the cause of their injuries, the Court concluded that the injuries had been inflicted by the police during the dispersal of the political rally.

The Court attached particular weight to the fact that the injuries had been sustained while the applicants had been within an area in which law-enforcement authorities were conducting an operation, during which they had resorted to the use of force for the purpose of quelling mass disorder. At no stage had the applicants’ peaceful conduct during the assembly been called into question. The use of force against them had therefore not been strictly necessary by their own conduct, and thus had diminished their dignity. Nor had it been indispensable in the context of quelling mass disorders.

Conclusion: violation (unanimously)

Article 11: No explanation had been submitted as to why force had been applied in respect of the applicants, who had not been arrested and had not engaged in any acts of violence. In light of its finding that the force used in respect of the applicants had been unnecessary and excessive and thus contrary to Article 3, the Court also found that the impugned interference had not been necessary in a democratic society, within the meaning of Article 11 § 2. Moreover, it could have had a chilling effect and discouraged the applicants and others from taking part in similar public gatherings.

Conclusion: violation (unanimously)

Article 41: EU 16,000 to the first applicant and EUR 16,900 to the second applicant in respect of non-pecuniary damage.

(See also Frumkin v. Russia, 74568/23, 5 January 2016, Information Note 192)


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