Last Updated on December 4, 2020 by LawEuro
. The case concerns restrictions imposed by the authorities on the location, time and manner of conduct of several public events. The applicants also complained about being unlawfully arrested and convicted of various administrative offences.
THIRD SECTION
CASE OF NAGIBIN AND OTHERS v. RUSSIA
(Applications nos. 9685/08 and 8 others – see appended list)
JUDGMENT
STRASBOURG
20 October 2020
This judgment is final but it may be subject to editorial revision.
In the case of Nagibin 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 nine applications (listed in appended table) 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 Pavel Nikolayevich Nagibin, Mr Boris Vadimovich Batyy and Mr Eduard Anatolyevich Nikolayev (“the applicants”), on the various 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 29 September 2020,
Delivers the following judgment, which was adopted on that date:
1. The case concerns restrictions imposed by the authorities on the location, time and manner of conduct of several public events. The applicants also complained about being unlawfully arrested and convicted of various administrative offences.
THE FACTS
2. Theapplicants’ details are set out in the appended table.
3. The Russian Government (“ the Government” ) were represented 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.
5. The three applicants in the present case were involved in a number of public events in 2007-2008 in Rostov-na-Donu, where they all reside. Some of the applications lodged by them concern the same events, while others are unrelated, but similar in substance. The main details of the complaints under Articles 10 and 11 of the Convention are summarised in the text below. These and further repetitive complaints, under Articles 3, 5 and 6 of the Convention, are also detailed in the Appendix.
I. application no. 9685/08
6. The applicant in the present application is Mr Nagibin. On 22 June 2007 the Justice of the Peace of the 4th Circuit of the Pervomayskiy District of Rostov‑na‑Donufound the applicant guilty of a breach of public order, an administrative offence under Article 20.1 § 1 of the Code of Administrative Offences. The judge based her decision on the strength of the evidence produced by the police: reports by the officers and statements by two witnesses who had signed their statements attesting that the applicant used foul language and verbally assaulted them. The applicant was sentenced to nine days’ administrative imprisonment. The judge rejected the applicant’s request to question the prosecution witnesses.
7. On 27 June 2007 the Pervomayskiy District Court of Rostov‑na‑Donu rejected the applicant’s appeal in a summary fashion.
II. APPLICATION No. 22572/08
8. The applicant in the present application is Mr Nagibin. At about 3 p.m. on 12 December 2006 the applicant, on leaving his home, was apprehended by police officers from the Organised Crime Unit of the Rostov Regional Police Directorate. They brought him to the Pervomayskiy district police station.
9. According to the police, the applicant was stopped for an identity check but resisted and attempted to flee.
10. At the police station a report on an administrative offence under Article 19.3 of the Code of Administrative Offences (“the CAO”) (failure to comply with lawful demands of a police officer) was drawn up.
11. The applicant remained in custody on the premises of the police station until 3 p.m. on the following day. He did not receive any food, he was not taken outdoors. The cell measured approximately 2 square metres and accommodated the applicant and one other person; it was not equipped with a bed.
12. On 13 December 2006 the applicant was brought before the Justice of the Peace of the 5th Court Circuit of the Pervomayskiy District of Rostov‑na‑Donu. The judge dismissed the case and returned the file to the police as the applicant was a member of the district electoral commission.
13. On 13 February 2007 the police discontinued the administrative proceedings against the applicant upon expiry of the statutory prescription period.
14. The applicant complained to a court that he had been unlawfully deprived of his liberty and of the poor condition of his detention.
15. In those proceedings the court established that on 12 December 2006 the police officers had stopped Mr Nagibin to check his identity and to conduct explanatory and preventive discussions. The police officers’ testimonies were rendered in the judgment as follows:
“Having received operative information on the preparation by National-Bolsheviks of an unlawful march in Moscow, known as the ‘Dissenters’ March’, they were requested to conduct explanatory and preventive discussions (разъяснительно‑профилактические беседы) with the prospective participants to the march, including Mr Nagibin. However, since they did not know him and only disposed of his verbal description, on 12 December 2006 they arrived at Mr Nagibin’s residence and, as he was not at home, waited for him in the street. Once they saw a man who matched the description, they approached him, introduced themselves and asked him for identity documents. The man refused, pushed them away and attempted to flee, which actions aroused suspicions as to the lawfulness of his conduct. As he had offered resistance, Mr Nagibin was placed in a car and brought to the Pervomayskiy district police station …”
16. On 6 April 2007 the Pervomayskiy District Court of Rostov‑na‑Donu gave judgment, by which it rejected the applicant’s claims. It found that the police officers had acted within their competence because they had the right, under section 11 §§ 2 and 15 of the Police Act, to check the identity papers of individuals who were suspected of a criminal or administrative offence. The applicant’s overnight detention had been lawful because the Code of Administrative Offences permitted detention for up to forty-eight hours.
17. On 6 June 2007 the Rostov Regional Court upheld the judgment on appeal.
18. The applicant attempted to complain about the decision to conduct “preventive discussions” for the purpose of dissuading prospective participants from taking part in mass gatherings. However, by decision of 18 July 2007, upheld on appeal on 17 November 2007, the Pervomayskiy District Court refused to examine his complaint, finding that the issues raised therein had already been determined in the judgment of 6 April 2007.
III. APPLICATION no. 37565/08
19. In November 2007 Mr Nagibin (the applicant in the present application) and Mr Ye. notified the Rostov‑na‑Donu town administration of their intention to hold a static demonstration (“picket”, пикетирование) to protest against the authorities’ decision to exclude the “Different Russia” (Drugaya Rossiya) party from participating in the parliamentary election.
20. They received a reply stating that if they intended to campaign for the candidates of the association not listed on the electoral ballots they would violate the law and requesting them to submit a notification in which the purpose of the event would be formulated in compliance with the law.
21. On 24 November 2007 Mr Nagibin proceeded with the demonstration. He was apprehended as his passport was found to be defiled with unauthorised pen writing and the police officers intended to draft the relevant record of the administrative offence at the police station. The applicant refused to follow them, explaining that he was a participant in the picket. He was, however, brought to a police station and charged with non‑compliance with a lawful order of a police officer (Article 19.3 § 1 of the CAO).
22. On 2 December 2007 the applicant was convicted of the administrative offence on the basis of the police report and oral testimony of the officer, Mr Kh. The applicant was sentenced to three days of administrative imprisonment. The court credited the period from 5.20 p.m. on 24 November 2007 until 10.45 a.m. on 26 November 2007 to the time to be served. The applicant appealed.
23. On 11 January 2008 the Pervomayskiy District Court upheld the conviction.
24. On 18 February 2008 the applicant challenged the town administration’s rejection of his picket notification before a court.
25. On 7 March 2008 the Pervomayskiy District Court found that there had been no breach of the applicant’s right to hold a picket because the town administration had not prohibited the event and the applicant had actually begun picketing but had been detained and brought to administrative liability for an unrelated offence. On 23 April 2008 the Rostov Regional Court upheld that judgment on appeal.
IV. application no. 37581/08
26. The first applicant in this application is Mr Nagibin, the second applicant is Mr Batyy.
27. On 19 June 2007 Mr Nagibin, together with Mr Ye., notified the Rostov‑na‑Donu town administration of their intention to hold a meeting of some three hundred participants on Sovetov Square from 5 p.m. to 6 p.m. on 30 June 2007, followed by the “Dissenters’ March” (Марш несогласных) along Sadovaya and Sovetskaya Streets and another meeting at Karl Marx Square until 7.30 p.m.
28. On 20 June 2007 the town administration informed Mr Nagibin that the contemplated events had not been sufficiently prepared. In particular, they did not indicate which side of Sadovaya and Sovetskaya Streets the march would take place and where the participants would cross the streets.
29. On 21 September 2007 both applicants and Mr Ye. complained to a court about the town administration’s de facto refusal of their application to hold a march.
30. On 8 October 2007 the Pervomayskiy District Court of Rostov‑na‑Donu found in their favour.
31. Following the town administration’s appeal, on 21 November 2007 the Rostov‑na‑Donu Regional Court reversed the District Court’s decision. It held that the administration’s response had not prohibited the meeting or prevented the organisers from submitting more detailed information on its route and venue. The organisers, however, did not make use of this possibility. Additionally, the Regional Court determined, without referring to specific dates, that the complainants had missed the three-month time‑limit for appealing against the administration’s decision.
V. application no. 42250/08
A. Notification of the public events
32. The applicant in this application, Mr Nikolayev, on various dates notified the Rostov‑na‑Donu town administration of his intention to hold public events at different locations (see appended table). However, the town administration imposed restrictions as to the location of the public event on each occasion.
33. The applicant contested the town administration’s replies before the domestic courts (for details of those proceedings see appended table).
B. Demonstration on 24 November 2007, arrest and conviction of the applicant
34. On 24 November 2007 the applicant and Mr S. intended to take part in the event which had been organised by Mr Nagibin and Mr Ye. (see paragraph 19 above, the facts relating to application no. 37565/08).
35. At 3.15 p.m. three police officers in uniform and two persons in civilian clothing approached Mr Nikolayev while he was standing near a kiosk. He was told to follow them to the district police station, claiming that “his driver’s licence was a forgery, his cell phone had been stolen, and he looked like a wanted criminal”.
36. Mr Nikolayev was brought to the Kirovskiy district police station. He was charged with a breach of public order, an offence under Article 20.1 § 1 of the CAO. According to the report, on 24 November 2007 he had sworn obscenely, disobeyed police orders, pushed the policemen away and attempted to flee. The arrest record noted that Mr Nikolayev had been arrested with a view to ensure administrative proceedings.
37. He was placed into a temporary detention cell where he remained until 10.35 a.m. on 26 November 2007. According to the applicant, the cell measured 1.4 by 1.5 metres (2.1 square metres) and was equipped with two short and narrow benches. The applicant shared it with three other persons. Access to drinking water or a toilet was only possible outside, at the discretion of police officers. The cell was not heated.
38. In the morning of 26 November 2007 Mr Nikolayev was brought before the Justice of the Peace of the 2nd Circuit of the Kirovskiy District of Rostov‑na‑Donu. The applicant was found guilty as charged and sentenced to ten days’ administrative imprisonment. The judge based the decision on three identical reports by officers Mr G., Mr Sh. and Mr N. who had claimed to have heard Mr Nikolayev saying obscenities, and two identical typewritten statements by Mr S. and Mr A. who stated that they had seen two men swearing and ignoring the police rebukes. The judge had heard the officers G., Sh. and N. and also Mr A. who had confirmed their pre-trial testimonies. Mr S. had showed up in court but he had not been allowed to testify because he had had no identity documents on his person.
39. The applicant appealed. On 30 November 2007 the Kirovskiy District Court rejected the applicant’s appeal in a summary fashion. However, it reduced the term of imprisonment to eight days.
VI. APPLICATION no. 57374/08
40. The applicant in the present application is Mr Nagibin. The facts of the case are related to the facts in application no. 37565/08 (see above).
41. The applicant was apprehended on 24 November 2007 and brought to the Kirovskiy district police station in Rostov‑na‑Donu, where he stayed until 26 November 2007.
42. On 26 November 2007 the applicant was brought to the Justice of the Peace of the Kirovskiy District. The same day the judge adjourned the hearing, and the applicant was released.
43. When convicting the applicant of an administrative offence and sentencing him to three days’ imprisonment, the judge held that his detention from 5.20 p.m. on 24 November to 10.45 a.m. on 26 November 2007 should be credited to the time to be served (see paragraph 22 above).
44. On an unspecified date the applicant brought a judicial complaint against the police station. He argued that the following periods should also be included in the period of his detention: from 3.10 p.m. until 5.20 p.m. on 24 November 2007 (the time from his factual arrest until his transfer to the police station was completed) and from 10.45 a.m. until 5.20 p.m. on 26 November 2007 (the time when the applicant was transferred to the judge and waited for the hearing).
45. On 14 March 2008 the Pervomayskiy District Court of Rostov‑na‑Donu rejected the applicant’s complaint. It noted that the CAO distinguished between the transfer (Article 27.2 § 1, “доставление”) which was the act of transfer by convoy of an individual to a police station in order to prepare a report on an administrative offence, and “administrative detention” (Article 27.3 § 1, “административное задержание”) which was a short-time restriction on the liberty of the offender effected for the purpose of a correct and diligent examination of the administrative case. Relying on the testimony by the police officers, the District Court found that the applicant had been subjected to the transfer until 5.20 p.m. on 24 November 2007 and he had been free to move around the police station and had not been held there by force. Likewise, on 26 November 2007 the applicant had not been restricted in his liberty while being on the premises of the Justice of the Peace. He had been able to confer with his lawyer and other individuals.
46. On 23 April 2008 the Rostov Regional Court upheld the District Court’s judgment, reproducing its text verbatim.
VII. application no. 10460/09
47. From 24 to 26 November 2007 the applicant in this case (Mr Nagibin) was held in the administrative-detention cell located on the premises of the Kirovskiy district police station in Rostov‑na‑Donu (see application no. 57374/08 above). The cell measured 3.5 square metres. The applicant shared it with three to five detainees. It was equipped with one bed, thirty centimetres wide and too short for an adult, and detainees took turns to sleep on the floor. There was no natural light and no possibility for outdoor exercise.
48. The applicant complained before the domestic courts about the poor conditions of his detention. Following several rounds of examination, on 27 May 2010 the Rostov Regional Court found that the applicant was unlawfully deprived of proper meals and a sleeping place during his detention. The domestic courts established, inter alia, that the applicant was kept in a cell which measured 3.5 square meters with three other persons.
VIII. application no. 39189/09
A. Notification of the public event
49. On 8 December 2008 Mr Nagibin and Mr Ye. notified the Rostov‑na–Donu town administration of their intention to hold a picket on the Russian Constitution Day (12 December). The picket was to take place in front of the building of the Presidential Envoy to the Southern Federal District on Bolshaya Sadovaya Street or across the road on Sovetov Square.
50. On the same day and on 10 December 2008 the town administration replied that the applicant had to hold the picket in another area, in front of the Sports Palace.
51. On 30 June 2010 the Supreme Court of Russia, following a request by the Ombudsman, held that the replies of the town administration of 8 and 10 December 2008 were unlawful.
52. In his observations of 6 November 2011 the applicant withdrew his complaint under Article 11 of the Convention concerning the alleged restriction on the location of the public event.
B. Solo demonstration on 12 December 2008, arrest and conviction of the applicant
53. At 5.20 p.m. on 12 December 2008 the applicant (Mr Nagibin) came to Voroshilovskiy Drive for a solitary demonstration. He carried a sandwich board and distributed leaflets to passers-by.
54. At approximately 5.40 p.m. two police officers apprehended him. He was taken to the Kirovskiy district police station The applicant was charged with a breach of public order and verbal assaults, an administrative offence under Article 20.1 § 1 of the CAO. The administrative arrest record read that the applicant had been arrested to ensure administrative trial, identify the offender and to draft the administrative offence record. The applicant noted in that record that he had been in a solo demonstration when the police arrested him and contested the lawfulness of this arrest.
55. On 13 December 2008 the Justice of the Peace of the 6th Court Circuit of the Kirovskiy District found the applicant guilty as charged. On the basis of submissions by several witnesses and two police officers, the judge established in general terms that the applicant had used foul language in a public space. The text of the judgment did not specify which particular words the applicant had pronounced. The judge did not address the applicant’s arguments that he had not used foul language, but rather had been making a solo demonstration when the police officers came and ordered him to stop the unlawful demonstration. The judge sentenced the applicant to three days’ administrative imprisonment, to be calculated from 7.35 p.m. on 12 December 2008. The applicant appealed, arguing that, inter alia, the judge had not taken into account the fact that he had been picketing.
56. On 12 January 2009 the Pervomayskiy District Court of Rostov‑na‑Donu upheld the applicant’s conviction.
57. On 25 March 2009 the Pervomayskiy District Court rejected the applicant’s claim for inclusion of the time period from 5.48 p.m. to 7.35 p.m. on 12 December 2008 in the period of his detention. It held that it was not reliably shown that the applicant had been detained at 5.48 p.m. On 28 May 2009 the Rostov Regional Court upheld that decision on appeal.
IX. application no. 1965/10
58. The applicant in the present application is Mr Nagibin. He complained to a court about poor conditions of his detention in the night from 12 to 13 December 2008 on the premises of the Kirovskiy district police station (see application no. 39189/09 above). He argued that he had no sleeping place, that on 13 December 2008 he was transported in an unheated minivan for more than two hours. He also submitted that he had not received any food on that day.
59. On 25 March 2009 the Pervomayskiy District Court rejected his complaints. It found that the applicant had been provided with a sleeping place on a bench and bed linen. He had been given packed food provisions on 12 and on 13 December 2008. As to the transport conditions, the District Court accepted the police representative’s submission that the car had been “specifically equipped” for transporting people.
60. On 28 May 2009 the Rostov Regional Court upheld the judgment on appeal.
THE LAW
I. JOINDER OF THE APPLICATIONS
61. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. PRELIMINARY CONSIDERATIONS
62. The Court notes that in his observations of 6 November 2011 Mr Nagibin withdrew his complaint under Article 11 of the Convention concerning the alleged restriction on the location of the public event (application no. 39189/09) (see paragraphs 49-52 above) and maintained his complaint about his arrest during the solo demonstration and subsequent conviction.
63. The Court considers that, in these circumstances, the applicant does not intend to pursue his complaint, within the meaning of Article 37 § 1 (a) of the Convention. The Court finds no reasons of a general character, affecting respect for human rights as defined in the Convention, which require further examination of this complaint by virtue of Article 37 § 1 of the Convention in fine. It therefore strikes out the complaint under Article 11 in this part.
III. ALLEGED VIOLATIONs OF ARTICLEs 10 and 11 OF THE CONVENTION
64. The applicants in applications nos. 37565/08, 37581/08, 42250/08, and 39189/09 complained about the restrictions imposed by the authorities on the location, time or manner of conduct of the public events, as well as the allegedly unlawful arrest of Mr Nagibin and Mr Nikolayev during some of those public events (see appended table). They relied, expressly or in substance, on Articles 10 and 11 of the Convention. These complaints fall to be examined under Article 11 (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 363-65, 7 February 2017), except for application no. 39189/09 where the applicant complained about his arrest at the solo demonstration and subsequent conviction, which falls be examined under Article 10 of the Convention. Articles 10 and 11 of the Convention read as follows:
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 11
“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.”
A. Admissibility
65. In application no. 42250/08 Mr Nikolayev complained under Article 11 of the Convention about, in particular, his arrest and detention on 24-26 November 2007 as well as his subsequent administrative conviction for disorderly conduct (see paragraphs 34-39 above). The Court observes that the circumstances of the present case differ from the ones described in application no. 37565/08 lodged by Mr Nagibin and concerning the same public event. Unlike Mr Nagibin, the applicant in the present application (Mr Nikolayev) was not apprehended at the venue of the public event that he had allegedly intended to join on the day of the arrest. Moreover, in the administrative proceedings Mr Nikolayev did not argue that the measures taken in his respect had infringed his freedom of assembly. In these circumstances, the Court considers that it is not in possession of materials or submissions that would allow it to establish a clear and acknowledged link between the measures taken against the applicant and his exercise of the freedom of peaceful assembly (compare with Navalnyy and Yashinv. Russia, no. 76204/11, § 52, 4 December 2014). The Court considers that this complaint is unsubstantiated. It must therefore be declared manifestly ill-founded and be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
66. The Court notes that other complaints under Articles 10 and 11 of the Convention (see appended table) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Application no. 39189/09
67. In its previous cases (see Novikova and Others v. Russia, nos. 25501/07 and 4 others, §§ 222-25, 26 April 2016; see also, mutatis mutandis, Navalnyy and Yashin, cited above, §§ 70-72) the Court found a violation in respect of issues similar to those in the present case.
68. Having examined all the material submitted to it, the Court does not see any reason to reach a different conclusion in the present case. It therefore finds that the termination of the applicant’s solo demonstration on 12 December 2008, his arrest and administrative conviction were not justified.
69. There has accordingly been a violation of Article 10 of the Convention in application no. 39189/09.
2. Applications nos. 37565/08, 37581/08, 42250/08
70. The Court refers to the principles established in its case‑law regarding freedom of assembly (see Kudrevičiusand Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references).
71. In the leading case of Lashmankin and Others (cited above, §§ 402‑78), the Court found a violation in respect of issues similar to those in applications nos. 37565/08, 37581/08 and 42250/08.
72. 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 in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the interference with the applicants’ freedom of assembly was based on legal provisions which did not meet the Convention’s “quality of law” requirements, and was moreover not “necessary in a democratic society”.
73. There has therefore been a violation of Article 11 of the Convention in respect of the applicants in applications nos. 37565/08, 37581/08 and 42250/08.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
74. The applicants in applications nos. 22572/08, 42250/08, 10460/09, and 1965/10 complained that the conditions of their overnight detention on the premises of the Pervomayskiy and Kirovskiy district police stations were incompatible with Article 3 of the Convention. Mr Nagibin also complained (application no. 1965/10) about the allegedly poor conditions of his transfer on 13 December 2008. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
75. As regards applications nos. 22572/08 and 1965/10 the Government argued that the applicant had not raised his grievances before the domestic courts, i.e. had not used the available domestic remedy. However, it follows from the available documents that in both cases the applicant had in fact complained about the allegedly poor conditions of his detention and transportation before the domestic courts, but those complaints were rejected (see paragraphs 16 and 58-60 above). In these circumstances, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies.
76. As regards Mr Nagibin’s complaint (application no. 1965/10) concerning the allegedly poor conditions of his transportation on 13 December 2008, the Court notes that on 25 March 2009 and on 28 May 2009 the domestic courts established that the van used for the applicant’s transfer was equipped for transferring persons (see paragraph 59 above). The Court is not in possession of any further material indicating that the applicant had been subjected to treatment reaching the threshold of Article 3 of the Convention. In the view of the foregoing, the Court concludes that the complaint in this part is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
77. As regards application no. 10460/09, the Government argued that the applicant had lost his victim status since on 27 May 2010 the domestic courts acknowledged the unlawfulness of the failure to provide him with food and a sleeping place during his detention on 24-26 November 2007 (see paragraph 48 above). However, the Court notes that the applicant in his observations confirmed his withdrawal of these particular allegations. It follows that in application no. 10460/09 the Court will examine the Article 3 complaint in so far as the allegation of a lack of space is concerned. The Court finds that this part of the application 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.
78. The Court also notes that the complaints concerning the conditions of the applicants’ overnight detention raised in applications nos. 22572/08, 42250/08 and 1965/10 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
79. The Court notes that in application no. 42250/08 the Government acknowledged that there was a violation of the applicant’s right under Article 3 of the Convention on account of poor conditions of detention at the Kirovskiy district police station on 24-26 November 2007, in particular, the space requirements, as provided by the Convention in the light of its findings in Navalnyy and Yashin (cited above, §§ 110-12), and Nemtsov v. Russia (no. 1774/11, §§ 117-21, 31 July 2014).
Regard being had to the foregoing and to all the material in application nos. 22572/08, 42250/08, 10460/09, and 1965/10, the Court concludes that the complaints under Article 3 (see the appended table) disclose violations of the Convention in the light of its findings in Navalnyy and Yashinv. Russia (cited above, §§ 110-12) and Nemtsov v. Russia (no. 1774/11, §§ 117-21, 31 July 2014).
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
80. The applicants in applications nos. 22572/08, 42250/08, 57374/08, and 39189/09 complained that their arrest and detention had been arbitrary and unlawful. They relied on Article 5 §§ 1 and 2 of the Convention:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
A. Admissibility
81. The Court notes that the complaints under Article 5 raised by the applicants (see appended table) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
82. Having examined all the material before it, the Court concludes that the complaints under Article 5 in applications nos. 22572/08, 42250/08, 57374/08 and 39189/09 (see appended table) disclose violations of the Convention in the light of its findings in Navalnyy and Yashin (cited above, §§ 91-98); Frumkin v. Russia (no. 74568/12, §§ 147-52, 5 January 2016); Lashmankin and Others (cited above, §§ 486‑92); and Tsvetkova and Others v. Russia (nos. 54381/08 and 5 others, §§ 106-24, 10 April 2018).
83. As regards application no. 42250/08 the Court considers that in view of its finding that the applicant’s arrest and detention were not “lawful” within the meaning of Article 5 § 1 of the Convention, and in the particular circumstances of the present case, it is not necessary to examine the applicant’s complaint that he had received the information on the official charges against him with a delay.
84. In respect of Mr Nagibin’s complaint under Article 5 of the Convention (application no. 57374/08), the finding of a violation relates to the arbitrary character of his arrest on 24 November 2007 and his detention until 26 November 2007. Having reached this conclusion, in the circumstances of this case the Court does not consider it necessary to examine Mr Nagibin’s complaint that his alleged detention on 26 November 2007 on the premises of the Justice of the Peace was incompatible with the requirements of Article 5 § 1 of the Convention.
VI. alleged violation of article 6 of the convention
85. The applicants in applications nos. 9685/08, 42250/08 and 37565/08 complained about their alleged inability to examine prosecution witnesses in the administrative proceedings against them. They relied on Article 6 §§ 1 and 3 (d) of the Convention, which provides, in so far as relevant, as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] tribunal …
…
3. Everyone charged with a criminal offence has the following minimum rights …
…
(d) to examine or have examined witnesses against him …”
A. Admissibility
86. As regards Mr Nagibin’s complaint under Article 6 of the Convention (application no. 37565/08) that he could not obtain the attendance and examination of Mr T., the police officer who had drafted the administrative record, in the proceedings ending on 11 January 2008 the Court notes the following. The Government submitted that the court had granted the request to question Mr T. (the police officer who had drafted the administrative offence record), however, for an unknown reason that witness had not been questioned. The Court further notes that the domestic court heard one of the police officers who had arrested the applicant (see paragraph 22 above). It follows that during the proceedings, the courts took into account, apart from the administrative records, the statements provided by two witnesses and by at least one of the police officers concerned. In view of the foregoing, the Court considers this complaint manifestly ill‑founded. It must therefore be declared insadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
87. Mr Nikolayev’s complaint under Article 6 of the Convention concerning the attendance and examination of the witness Mr S. in the proceedings ending with the Kirovskiy District Court’s judgment of 30 November 2007 (application no. 42250/08) is inadmissible as the applicant did not request that Mr S., who could not be questioned at the trial, would be questioned in the appeal proceedings. Further, according to the text of the applicant’s appeal he did not raise this issue before the appeal court. This complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
88. The Court notes that the complaint under Article 6 raised by the applicant in application no. 9685/08 (see paragraphs 6-7 above and appended table) 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
89. Having examined all the material before it, the Court concludes that the complaint discloses a violation of the Convention in the light of its findings in Malofeyeva v. Russia (no. 36673/04, §§ 99-101, 30 May 2013), and Vyerentsov v. Ukraine (no. 20372/11, §§ 81-83, 11 April 2013).
VII. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION
90. Mr Nagibin (in applications nos. 22572/08, 9685/08, 37565/08, and 39189/09) complained that his arrest and detention had pursued the aim of undermining his right to liberty and freedom of assembly. He complained of a violation of Article 18 of the Convention, which reads as follows:
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
91. 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.
92. The Court has found violations of Articles 3, 5, 6, 10 and/or 11 of the Convention in the applications concerned (see appended table). Having regard to those findings, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 18 of the Convention (see Frumkin, cited above, §§ 172-73).
VIII. remaIning complaints
93. Lastly, the Court has examined other complaints submitted by the applicants. Having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the applications in this part must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION
94. 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
95. The applicants claimed various amounts in respect of non-pecuniary damage.
96. The Government contested those claims.
97. Regard being had to the documents in its possession and to its case‑law the Court awards the applicants the following amounts in respect of non-pecuniary damage, plus any tax that may be chargeable: 9,800 euros (EUR) to Mr Nagibin (applications nos. 9685/08, 22572/08, 37565/08, 37581/08, 57374/08, 10460/09, 39189/09 and 1965/10), EUR 4,000 to Mr Batyy (application no. 37581/08), and EUR 6,500 to Mr Nikolayev (application no. 42250/08).
B. Costs and expenses
98. Mr Nagibin also claimed EUR 340 for the costs and expenses incurred before the Court. Mr Nikolayev claimed EUR 2,910 for the legal services of his representative in the proceedings before the Court. Mr Nagibin and Mr Batyy claimed EUR 175 and EUR 165 respectively, for expenses incurred during the domestic proceedings.
99. The Government contested the claims.
100. Regard being had to the documents in its possession, its case-law and the repetitive nature of the legal issues examined in this case, the Court considers it reasonable to award Mr Nagibin (applications nos. 9685/08, 22572/08, 37565/08, 37581/08, 57374/08, 10460/09, 39189/09, and 1965/10) the sum of EUR 40 and Mr Nikolayev (application no. 42250/08) the sum of EUR 850 for costs and expenses, plus any tax that may be chargeable to the applicants.
C. Default interest
101. 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. Decides to strike the complaint under Article 11 of the Convention in application no. 39189/09 out of its list of cases in so far as it concerns the alleged restriction on the location of the public event;
3. Declares the complaint under Article 10 of the Convention in application no. 39189/09, the complaints under Article 11 of the Convention in applications nos. 37565/08, 37581/08, 42250/08, and the other complaints under the well-established case-law of the Court (under Articles 3, 5 and 6 of the Convention), as set out in the appended table, admissible and the remainder of the applications inadmissible;
4. Holds that there has been a violation of Article 10 of the Convention in application no. 39189/09;
5. Holds that there has been a violation of Article 11 of the Convention in applications nos. 37565/08, 37581/08 and 42250/08;
6. Holds that there has been a violation of Articles 3, 5 and 6 of the Convention as regards the other complaints raised under the well‑established case-law of the Court (see appended table);
7. Holds that there is no need to examine the complaint under Article 5 § 2 of the Convention in application no. 42250/08, the complaint underArticle 5 § 1 of the Convention as regards Mr Nagibin’s detention on 26 November 2007 in application no. 57374/08, and the complaint under Article 18 of the Convention in applications nos. 22572/08, 9685/08, 37565/08 and 39189/09;
8. 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) EUR 9,800 (nine thousand eight hundred euros) to Mr Nagibin (applications nos. 9685/08, 22572/08, 37565/08, 37581/08, 57374/08, 10460/09, 39189/09 and 1965/10); EUR 4,000 (four thousand euros) to Mr Batyy (application no. 37581/08); EUR 6,500 (six thousand five hundred euros) to Mr Nikolayev (application no. 42250/08), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 40 (forty euros) to Mr Nagibin and EUR 850 (eight hundred and fifty euros) to Mr Nikolayev, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(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;
9. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 20 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Helen Keller
Deputy Registrar President
Appendix
| No. | Application no.
Date of introduction |
Applicant
Date of Birth Place of Residence |
Complaints under Article 10 and/or 11 of the Convention | Complaints under Article 3 of the Convention | Complaints under Article 5 of the Convention | Complaints under Article 6 of the Convention |
| 1 | 9685/08
23/12/2007 |
Pavel Nikolayevich NAGIBIN
1971 Rostov-na-Donu
|
n/a | n/a | n/a | Art. 6 § 3 (d) – the courts refused to call prosecution witnesses in the proceedings ending on 27/06/2007
(see Vyerentsov v. Ukraine, no. 20372/11, §§ 81‑83, 11 April 2013). |
| 2 | 22572/08
05/12/2007 |
Pavel Nikolayevich NAGIBIN
1971 Rostov-na-Donu |
n/a | Art. 3 – inadequate conditions of detention at the Pervomayskiy district police station,
12/12/2006-13/12/2006
Lack of food, lack of sleeping place
(see Navalnyy and Yashinv. Russia, no. 76204/11, §§ 110‑12 , 4 December 2014). |
Art. 5 – unlawful deprivation of liberty: arrest and transfer to the Pervomayskiy district police station on 12/12/2006 for the purpose of drawing up a record of administrative offence, detention in excess of three hours (from approximately 3 p.m. on 12/12/2006 until 3 p.m. on 13/12/2006)
(see Navalnyy and Yashin, cited above, §§ 91-98). |
n/a |
| 3 | 37565/08
09/07/2008 |
Pavel Nikolayevich NAGIBIN
1971 Rostov-na-Donu |
Public event:
In front of the building of the Presidential Envoy to the Southern Federal District 24/11/2007
Restriction(s): Proposal to reformulate the purpose for the assembly. Arrest and conviction of an administrative offence under Article 19.3 § 1 of the CAO[1](sentenced to three days of administrative imprisonment). Final domestic decision(s): Notification procedure: 23/04/2008 the Rostov-na-Donu Regional Court Administrative Offence Proceedings: 11/01/2008 the Pervomayskiy District Court of Rostov-na-Donu
(see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 402‑78, 7 February 2017). |
n/a | n/a | n/a |
| 4 | 37581/08
21/05/2008 |
Pavel Nikolayevich NAGIBIN
1971 Rostov-na-Donu
Boris Vadimovich BATYY 1961 Bad Nauheim, Germany
|
Public event:
An assembly on the Sovetov Square, a march along the Sadovaya and Sovetskaya Streets, a meeting on Karl Marx Square in Rostov‑na‑Donu 30/06/2007
Restriction(s): Proposal to indicate on which side of the streets the march would take place and how the participants would cross the streets
Final domestic decision(s): Notification procedure: 21/11/2007 the Rostov-na-Donu Regional Court (see Lashmankin and Others, cited above, §§ 402‑78). |
n/a | n/a
|
n/a |
| 5 | 42250/08
30/05/2008 |
Eduard Anatolyevich
NIKOLAYEV 1971 Rostov-na-Donu
Represented by: Andarbek Sharanovich MAGOMADOV
|
Public event:
In front of the regional electoral commission 10/11/2007
Restriction(s): Proposal to change the location
Final domestic decision(s): Notification procedure: 30/04/2008 the Rostov-na-Donu Regional Court |
Art. 3 – inadequate conditions of detention at the Kirovskiy district police station, 24/11/2007-26/11/2007
Lack of food, lack of space
(see Navalnyy and Yashin, cited above, §§ 110‑12). |
Art. 5 – unlawful deprivation of liberty: arrest and transfer to the Kirovskiy district police station on 24/11/2007 for securing administrative procedure
(see Lashmankin and Others, cited above, §§ 486‑92). |
n/a |
| Public event:
In front of the building of the Presidential Envoy to the Southern Federal District 03/03/2008 and/or the following days
Restriction(s): Proposal to change the location
Final domestic decision(s): Notification procedure: 20/08/2008 the Rostov-na-Donu Regional Court |
n/a | n/a | n/a | |||
| Public event:
In front of the building of the Presidential Envoy to the Southern Federal District 23/11/2008
Restriction(s): Proposal to change the location
Final domestic decision(s): Notification procedure: 26/03/2009 the Rostov-na-Donu Regional Court
(see Lashmankin and Others, cited above, §§ 402‑78). |
n/a | n/a | n/a | |||
| 6 | 57374/08
22/10/2008 |
Pavel Nikolayevich NAGIBIN
1971 Rostov-na-Donu
|
n/a | n/a | Art. 5 – unlawful deprivation of liberty: arrest and transfer to the Kirovskiy district police station on 24/11/2007 for the purpose of drawing up a record of administrative offence and securing administrative procedure, detention in excess of three hours (from approximately 3.30 p.m. on 24/11/2007 until 10.45 a.m. on 26/11/2007)
(see Navalnyy and Yashin, cited above, §§ 91-98). |
n/a |
| 7 | 10460/09
29/01/2009 |
Pavel Nikolayevich NAGIBIN
1971 Rostov-na-Donu
|
n/a | Art. 3 – inadequate conditions of detention at the Kirovskiy district police station, 24/11/2007-26/11/2007
Lack of space
(see Navalnyy and Yashinv. Russia, no. 76204/11, §§ 110‑12 , 4 December 2014). |
n/a | n/a |
| 8 | 39189/09
12/07/2009 |
Pavel Nikolayevich NAGIBIN
1971 Rostov-na-Donu
|
Public event:
Solo demonstration at Pushkinskaya Street 12/12/2008
Restriction(s): Arrest, detention and conviction of an administrative offence under Article 20.1 § 1 of the CAO (sentenced to three days of administrative imprisonment).
Final domestic decision(s): Administrative Offence Proceedings: 12/01/2009 the Pervomayskiy District Court of Rostov-na-Donu
(see Novikova and Others v. Russia. nos. 25501/07 and 4 others, §§ 222‑25, 26 April 2016). |
n/a | Art. 5 – unlawful detention on 12/12/2008 from approximately 5.40 p.m. to 7.35 p.m.
(see Lashmankin and Others, cited above, §§ 486‑92). |
n/a |
| 9 | 1965/10
27/11/2009 |
Pavel Nikolayevich NAGIBIN
1971 Rostov-na-Donu
|
n/a | Art. 3 – inadequate conditions of detention at Kirovskiy district police station, 12/12/2008-13/12/2008
Lack of sleeping place
(see Navalnyy and Yashin, cited above, §§ 110‑12). |
n/a | n/a |
[1] The Code of Administrative Offences
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