Last Updated on December 4, 2020 by LawEuro
. Following the final hearing in the criminal case concerning the mass disorder at Bolotnaya Square, some public gatherings took place in Moscow and St Petersburg in support of the persons convicted in that criminal case. The applicants participated in such gatherings. As a result, they were apprehended and convicted of administrative offences.
THIRD SECTION
CASE OF MAYZULS AND OTHERS v. RUSSIA
(Applications nos. 74602/14 and 3 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 Mayzuls 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 four applications (listed in the 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 twelve Russian nationals (“the applicants”), on the various dates indicated in the Appendix;
the decision to give notice to the Russian Government (“the Government”) of the complaints under Articles 5, 6 and 11 of the Convention and to declare inadmissible the remainder 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. Following the final hearing in the criminal case concerning the mass disorder at Bolotnaya Square, some public gatherings took place in Moscow and St Petersburg in support of the persons convicted in that criminal case. The applicants participated in such gatherings. As a result, they were apprehended and convicted of administrative offences.
THE FACTS
2. The applicants’ details are set out in the appended table.
3. The Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, then by Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation at the European Court of Human Rights, and subsequently by Mr M. Galperin, Representative of the Russian Federation at the European Court of Human Rights.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 24 February 2014 the final hearing in the criminal case concerning the mass disorder at Bolotnaya Square in Moscow on 6 May 2012 took place at the Zamoskvoretskiy District Court of Moscow. Seven participants in those events were sentenced to prison terms of two and a half years and four years. Those criminal proceedings were considered by many to be driven by political reasons. They attracted a lot of public and media attention. In the evening of 24 February 2014 public gatherings in support of the convicted activists took place at Tverskaya Street in Moscow and at Malaya Sadovaya Street in St Petersburg. The meetings had been advertised on social media. The authorities had not been notified of the gatherings.
6. The applicants took part in those public meetings. There is no information that the meetings turned violent. It follows from the available material that the protesters shouted political slogans, while the police warned them through megaphones that the gatherings had not been authorised and instructed them to disperse.
7. The applicants were apprehended and transferred to various police stations. On the dates stipulated in the appended table the applicants were convicted under Article 20.2 § 5 of the Code of Administrative Offences for breaching the procedure for the organisation or conduct of public gatherings. They were sentenced to fines ranging between 10,000 Russian roubles (RUB) and RUB 20,000 (see the appended table).
8. The applicant in application no. 3093/15 was convicted under Article 19.3 § 1 of the CAO for a refusal to obey a lawful order of a police officer, and was ordered to pay RUB 1,000. The domestic courts relied on the administrative record, the reports and explanations of the police officers. In particular, the courts considered it unlawful that the applicant in application no. 3093/15 shouted slogans and refused to stop participating in a public assembly in respect of which no advance notification had been submitted to the authorities.
RELEVANT LEGAL FRAMEWORK
9. For a summary of the relevant domestic law see Navalnyy v. Russia [GC] (nos. 29580/12 and 4 others, §§ 46-47, 15 November 2018).
10. The domestic legal provisions governing administrative transfer (escorting) and detention are also set out in the case of Butkevich v. Russia (see no. 5865/07, §§ 33-36, 13 February 2018).
11. According to Article 31.9 of the Code of Administrative Offences, if a decision imposing an administrative punishment is not enforced during 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
12. 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
13. All applicants, except Mr Shchurov, Mr Skorokhod, and Mr Maslov, 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 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.”
14. The Court refers to its finding that the gathering in question fell within the scope of Article 11 of the Convention (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 110-12, 15 November 2018). It considers that in the present case the applicants’ intentions and conduct were also covered by the notion of peaceful assembly, even though the participants’ initial purpose was to attend a court hearing and not to hold an 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.
15. The Government submitted that the gathering in the present case had not been a spontaneous one because the date of the public hearing had been set in advance and many activists had publically expressed their intention to attend it. They pointed out that the applicants in the present case had been convicted under Articles 19.3 § 1 (failure to comply with a lawful order of an official in connection with the exercise of his duties) and 20.2 § 5 (violation by a participant of the procedure for a public event) of the Code of Administrative Offences (“the CAO”) 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.
16. It follows from the parties’ submissions that the applicants were arrested, transferred to the police station and charged with administrative offences for the sole reason that their gathering as such had not been authorised.
17. The Court refers to the principles established in its case-law regarding the right to freedom of peaceful assembly (see Kudrevičiusand Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and the proportionality of interference with it (see Oya Ataman v. Turkey, no. 74552/01, ECHR 2006‑XIV, and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009).
18. In the leading cases (see, for example, Frumkin v. Russia, no. 74568/12, 5 January 2016; Navalnyy and Yashinv. 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. Moreover, in the case of Navalnyy(cited above, §§ 113 and 138‑53) the Court found, inter alia, a violation of Article 11 of the Convention in respect of the spontaneous public assembly in the evening of 24 February 2014 at Tverskaya Street in Moscow.
19. 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 in respect of the nine 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.
20. There has accordingly been a violation of Article 11 of the Convention in respect of all applicants, except Mr Shchurov, Mr Skorokhod, and Mr Maslov.
III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE LAW
21. Some applicants submitted other complaints which also raised issues under Articles 5 and 6 of the Convention, given the relevant well‑established case-law of the Court.
A. Admissibility
22. The Government argued that the applicants failed to exhaust the effective domestic remedies in respect of their complaints under Article 5 of the Convention that their arrest had been unlawful. 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 the 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.
23. The Court notes that the complaints listed in the appendix 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
24. 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 Navalnyy and Yashin (cited above, §§ 82-85), Karelin v. Russia (no. 926/08, 20 September 2016), Lashmankin and Others v. Russia, (nos. 57818/09 and 14 others, §§ 486-92, 7 February 2017), and, mutatis mutandis, Navalnyy (cited above, §§ 71-72).
25. As regards Article 5 § 1, the finding of a violation relates to the arbitrary character of the applicants’ arrests on 24 February 2014. Having reached this conclusion, in the circumstances of this case the Court does not consider it necessary to examine some of the applicants’ allegations that their detention on that day exceeded the statutory limit of three hours.
26. As regards Article 6 § 1, all the applications, except application no. 3093/15 (Mr Mzhavanadze), 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 of the applicants concerned 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. In view of the foregoing, 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. 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
28. The applicants claimed compensation for non-pecuniary damage. They left the determination of the amount of the awards to the Court’s discretion. The applicants also claimed pecuniary damage for the sum of the fines they had paid. Mr Skorokhod submitted that he could not pay the fine.
29. The Government contested the claims for non-pecuniary damage. As regards the claims for pecuniary damage, they submitted that the fines had been lawfully imposed on the applicants for administrative offences.
30. The Court considers that there is a direct causal link between the violation of Article 11 of the Convention found and the fines imposed (see, for similar reasoning, Lashmankin and Others, cited above, § 515). Regard being had to the documents in its possession, the Court considers it reasonable to award the sums indicated in the appended table in respect of pecuniary damage, plus any tax that may be chargeable, to the nine applicants in respect of which the Court found a violation of Article 11 of the Convention.
31. In respect of Mr Shchurov, Mr Skorokhod, and Mr Maslov the Court found violations of Articles 5 and 6 of the Convention. The Court does not discern a causal link between these violations and the pecuniary damage claimed. Therefore, it dismissed the claim of Mr Shchurov, Mr Skorokhod, and Mr Maslov under this head.
32. Regard being had to the documents in its possession and to its case‑law concerning violations of Article 11 of the Convention 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.
B. Costs and expenses
33. The applicants in applications nos. 74602/14, 3093/15 and 10147/15 jointly claimed EUR 8,587.23 and 637.46 pounds sterling (approximately EUR 739) under the head of costs and expenses incurred in the domestic proceedings and in the proceedings before the Court. They submitted detailed invoices indicating the lawyers’ and the translator’s fees, as well as administrative expenses. The invoices indicate the lawyers’ hourly rates, and the time billed for the preparation of various procedural documents in this case. The applicant in application no. 10028/15 did not claim costs and expenses.
34. The Government contested the claims as unsubstantiated.
35. 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. Regard being had to the documents in its possession, the number of represented applicants and its case-law, the Court considers it reasonable to grant the claim in full and to award EUR 9,326 jointly to the applicants in applications nos. 74602/14, 3093/15, 10147/15. This award is to be paid into the representatives’ bank account, as requested by the applicants.
C. Default interest
36. 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 complaints under Articles 5 and 6 of the Convention, as set out in the appended table, and the complaints under Article 11 of the Convention of all applicants, except Mr Shchurov, Mr Skorokhod, and Mr Maslov (application no. 74602/14), admissible;
3. Holds that there has been a violation of Article 11 of the Convention in respect of all applicants, except Mr Shchurov, Mr Skorokhod, and Mr Maslov (application no. 74602/14);
4. Holds that there has been a violation of Articles 5 and 6 of the Convention as regards the other complaints raised under well‑established case-law of the Court (see the appended table);
5. Holdsthat there is no need to examine the complaints under Article 5 § 1 of the Convention concerning the deprivation of liberty in excess of three hours in respect ofMr Mayzuls, Mr Babitskiy, Mr Nikolskiy, Mr Novoselov, Mr Khukhorev, Mr Yakshin, Mr Maslov (application no. 74602/14) and the complaints under Article 6 §§ 1 and 3 (d) of the Convention concerning the cross-examination of certain witnesses (applications nos. 74602/14 and 10028/15);
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;
(iii) EUR 9,326 (nine thousand three hundred and twenty-six euros) jointly to the applicants in applications nos. 74602/14, 3093/15, 10147/15, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representative’s bank account, as indicated by the applicants;
(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. Dismissesthe 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. | Applicationno.
Lodged on |
Applicant name
Date of birth Place of residence Nationality
Represented by |
Penalty | Final domestic decision details | Other complaints under well-established case-law,
admissible and disclosing a violation |
Amount awarded for pecuniary damage per applicant |
| 1 | 74602/14
16/11/2014
|
Mikhail Romanovich MAYZULS
1982 Moscow Russian
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 10,000
|
Appeal decision Moscow City Court
30/06/2014 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
EUR 164 (one hundred and sixty‑four euros) |
| Boris Mikhaylovich NIKOLSKIY
1970 Moscow Russian
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 10,000
|
Appeal decision Moscow City Court
30/05/2014 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
EUR 164 (one hundred and sixty‑four euros) | ||
| VitaliyVyacheslavovich NOVOSELOV
1976 Moscow Russian
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 10,000
|
Appeal decision Moscow City Court
04/08/2014
|
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
EUR 164 (one hundred and sixty‑four euros) | ||
| Artem Vladimirovich KHUKHOREV
1989 Moscow Russian
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 10,000
|
Appeal decision Moscow City Court
16/05/2014
|
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
EUR 164 (one hundred and sixty‑four euros) | ||
| YevgeniyRomanovich YAKSHIN
1987 Moscow Russian
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 15,000
|
Appeal decision Moscow City Court
30/07/2014 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
EUR 245 (two hundred and forty‑five euros) | ||
| Ilya Valeryevich SHCHUROV
1984 Moscow Russian
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 10,000
|
Appeal decision Moscow City Court
10/06/2014 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
n/a | ||
| Andrey Vyacheslavovich SKOROKHOD
1970 Balashikha Russian
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 10,000
|
Appeal decision Moscow City Court
30/07/2014 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
n/a | ||
| Ivan Fedorovich
BABITSKIY 1979 Moscow Russia
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 10,000 | Appeal decision Moscow City Court
10/07/2014 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
EUR 164 (one hundred and sixty‑four euros) | ||
| Petr Valeryevich MASLOV
1988 Moscow Russian
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 15,000
|
Appeal decision Moscow City Court
08/08/2014
|
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
n/a | ||
| 2 | 3093/15
30/12/2014
|
GeorgiyTengizovich MZHAVANADZE
1990 Cherepovets Russian
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 1,000
|
Supervisory decision Supreme Court
15/04/2015 |
Art. 5 § 1– unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin and Others, cited above, §§ 486‑92);
Art. 6 § 1 – lack of fair hearing: the courts based their findings exclusively on the evidence submitted by the police officers (see Navalnyy and Yashinv. Russia (no. 76204/11, §§ 82-85, 4 December 2014). |
EUR 17 (seventeen euros) |
| 3 | 10028/15
19/02/2015
|
Daniil Sergeyevich GRACHEV
1993 St Petersburg Russian
AleksandrDmitriyevich PEREDRUK
|
fine of RUB 20,000
|
Appeal decision
St Petersburg City Court
28/08/2014 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
EUR 311 (three hundred and eleven euros) |
| 4 | 10147/15
08/02/2015
|
Pavel Valentinovich PROTASOV
1965 Moscow Russian
Kirill Nikolayevich KOROTEYEV
|
fine of RUB 15,000
|
Appeal decision Moscow City Court
08/08/2014 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 24/02/2014 for the purpose of drawing up a record of the administrative offence (seeLashmankin 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). |
EUR 245 (two hundred and forty‑five euros) |
Leave a Reply