Last Updated on December 4, 2020 by LawEuro
INTRODUCTION. On various dates the applicants participated in political demonstrations. They were arrested at the venue of the demonstrations and subsequently convicted of an administrative offence.
THIRD SECTION
CASE OF SHNEYDER AND OTHERS v. RUSSIA
(Applications nos. 19126/11 and 5 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 Shneyderand 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 six 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 seven Russian nationals (“the applicants”), on the various dates indicated in the Appendix;
the decision to give notice of the applications to the Russian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 29 September 2020,
Delivers the following judgment, which was adopted on that date:
1. On various dates the applicants participated in political demonstrations. They were arrested at the venue of the demonstrations and subsequently convicted of an administrative offence.
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 the dates indicated in the appended table the applicants participated in various political demonstrations. They were apprehended at the venue of the demonstrations and transferred to various police stations in Moscow or St Petersburg where the relevant administrative records were drawn up. The records of the administrative offence were based on the reports and explanations of the police officers who had arrested the applicants. Some of the applicants were released several hours later, while others spent the night at the police station.
6. On the dates stipulated in the appended table the applicants were convicted under Article 19.3 § 1 of the Code of Administrative Offences (a refusal to obey the lawful order of a police officer). Some of the applicants were ordered to pay fines ranging between 500 Russian roubles (RUB) and RUB 1,000, while others were sentenced to administrative imprisonment for three to fifteen days (see the appended table). The domestic courts relied on the administrative records, the reports and explanations of the police officers. In particular, the courts considered unlawful that some of the applicants shouted slogans and/or refused to stop participating in a public assembly in respect of which no advance notification had been submitted to the authorities.
RELEVANT LEGAL FRAMEWORk
7. For a summary of the relevant domestic law see Navalnyy v. Russia [GC] (nos. 29580/12 and 4 others, §§ 46-47, 15 November 2018).
8. 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).
THE LAW
I. JOINDER OF THE APPLICATIONS
9. 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
10. The applicants complained of disproportionate measures taken against them as participants of peaceful public assemblies, 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.”
11. 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) 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).
12. In the leading cases (see, for example,Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, 15 November 2018; 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.
13. 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 assemblies did not correspond to a pressing social need and were thus not necessary in a democratic society.
14. These complaints are therefore admissible and disclose a violation of Article 11 of the Convention.
III. Other ALLEGED VIOLATIONs under well-established case law
15. 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
16. As regards the complaints under Article 5 of the Convention, the Government argued that some 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 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.
17. Mr Vinogradov (application no. 55308/15) complained, in particular, about the absence of the prosecuting party in the administrative proceedings and that the court refused him an opportunity to cross-examine the police officers whose statements were used for his conviction. As regards these grievances, the Court observes that Mr Vinogradov was absent from the hearings during the domestic administrative proceedings. The Court sees no reason to hold that he was not afforded an adequate opportunity to attend the hearings or to make arrangements for legal representation. In these circumstances, the Court considers that these complaints under Article 6 of the Convention are manifestly ill‑founded.
18. The remaining complaints raising issues under the well-established case-law of the Court (see the appended table) are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
19. 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); Karelin v. Russia (no. 926/08, 20 September 2016); and Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 486‑92, 7 February 2017).
20. As regards Article 6 § 1, the Court notes that in the five applications relying on this provision the administrative proceedings, taken as a whole, were conducted in violation of the applicants’ right to a fair hearing under Article 6 § 1 of the Convention. In some of these cases the Court finds a violation of the impartiality requirement on account of the absence of a prosecuting party or (see the appended table).
21. The Court further notes that the same applicants also raised other complaints under Article 6 of the Convention. Mr Shneyder (application no. 19126/11), Mr Ponomarev (application no. 30367/15), and Mr Shcherbakov (application no. 55308/15) 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. Mr Kostenko (application no. 76684/11) complained that he could not obtain attendance of the lawyer of his choosing at the court of first instance and that the appeal court reclassified the charge without affording the defence an opportunity to comment on the matter. Mr Kriger (application no. 4876/15) complained about a lack of access to a lawyer after his arrest and at the first-instance trial. In view of the above-mentioned finding concerning the overall fairness of the administrative proceedings in the applicants’ cases, the Court considers that it is not necessary to address the remainder of the applicants’ complaints under Article 6 §§ 1 and 3 (a)‑(d) of the Convention (see Frumkin, cited above, § 168).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. 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
23. The applicants claimed various amounts in respect of non-pecuniary damage. Some applicants also claimed pecuniary damage for the sum of the fines paid by them.
24. The Government contested the claims.
25. The Court considers that there is a direct causal link between the violation of Article 11 of the Convention found and the fines that the applicants had paid following their conviction for the administrative offences (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.
26. Further, having regard to the documents in its possession, to the principle non ultra petita and to its case-law concerning violations of Article 11 of the Convention on account of arbitrary arrests at peaceful assemblies, the Court awards the amounts indicated in the appended table in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
27. Some applicants also claimed costs and expenses incurred before the domestic courts or those incurred before the Court, in particular legal fees and postal expenses.
28. The Government contested the claims.
29. 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, its case‑law, the repetitive nature of the legal issues examined in this case and the fact that legal aid was granted to the applicant in application no. 4876/15, the Court awards the applicants the amounts detailed in the appended table, plus any tax that may be chargeable to the applicants. The awards are to be paid into the representatives’ bank accounts, as indicated by the applicants.
C. Default interest
30. 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 Article 11 of the Convention and the complaints under Articles 5 and 6 of the Convention, as set out in the appended table, admissible and the complaints under Article 6 of the Convention of Mr Vinogradov (application no. 55308/15) inadmissible;
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. Holdsthat there is no need to examine the remaining complaints under Article 6 §§ 1 and 3 (a)-(d) of the Convention in applications nos. 19126/11, 30367/15, 55308/15, 76684/11, and 4876/15;
6. Holds
(a) that the respondent State is to pay the applicants, within three months, the 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 and non-pecuniary damage;
(ii) the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the respective representatives’ bank accounts;
(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 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’s name
Date of birth Place of residence Nationality Represented by |
Name of the public event
Location Date |
Penalty | Final domestic decision
details |
Other complaints under well‑established case-law, admissible and disclosing a violation | Amount awarded for pecuniary damage per applicant | Amount awarded for non-pecuniary damage per applicant | Amount awarded for costs and expenses per application |
| 1 | 19126/11
31/01/2011 |
Mikhail Yakovlevich SHNEYDER
1948 Moscow Russian
Anna Borisovna POLOZOVA |
Political demonstration
Moscow 22/08/2010 |
3 days of administrative imprisonment | Appeal decision Presnenskiy District Court of Moscow
28/08/2010 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 22/08/2010 for the purpose of drawing up a record of administrative offence; detention in excess of 3 hours (from 1.10 p.m. till 3.30 a.m. on 23/08/2010) (see Navalnyy and Yashin v. Russia, no. 76204/11, §§ 91-98, 4 December 2014);
Art. 6 § 1 – lack of fair hearing: the courts based their findings exclusively on the evidence submitted by the police officers (see Navalnyy and Yashin, cited above, §§ 82-85). |
Not claimed | EUR 7,500
(seven thousand five hundred euros) |
EUR 850
(eight hundred and fifty euros) to be paid to the representative |
| 2 | 59752/11
28/08/2011 |
Yana Igorevna TEPLITSKAYA
1991 St Petersburg Russian
Sergey Aleksandrovich GOLUBOK |
Political demonstration
St Petersburg 31/10/2010
Political demonstration St Petersburg 31/03/2011 |
fine of RUB 500
fine of RUB 500 |
Appeal decision Kuybyshevskiy District Court of St Petersburg
20/04/2011
Appeal decision Smolninskiy District Court of St Petersburg 29/04/2011 |
n/a | EUR 16
(sixteen euros) |
EUR 6,500
(six thousand five hundred euros) |
EUR 850
(eight hundred and fifty euros) to be paid to the representative |
| 3 | 76684/11
12/12/2011 |
FilippArkadyevich
KOSTENKO 1985 St Petersburg Russian
Sergey Aleksandrovich GOLUBOK |
Political demonstration
St Petersburg 06/12/2011
|
15 days of administrative imprisonment | Appeal decision Kuybyshevskiy District Court of St Petersburg
10/12/2011
|
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). | Not claimed | EUR 10,000
(ten thousand euros) |
EUR 850
(eight hundred and fifty euros) to be paid to the representative |
| 4 | 4876/15
14/01/2015 |
Mikhail Aleksandrovich KRIGER
1960 Moscow Russian
KarinnaAkopovna MOSKALENKO |
Political demonstration
Moscow 30/12/2014 |
15 days of administrative imprisonment | Appeal decision Moscow City Court
13/01/2015 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police station on 30/12/2014 for the purpose of drawing up a record of administrative offence; detention in excess of 3 hours (from 19.45 p.m. till 12.00 p.m. on 31/12/2014) (see Navalnyy and Yashin,cited above, §§ 91-98);
Art. 6 § 1 – lack of fair hearing: the courts based their findings exclusively on the evidence submitted by the police officers (see Navalnyy and Yashin,cited above, §§ 82-85). |
Not claimed | EUR 10,000
(ten thousand euros) |
n/a |
| 5 | 30367/15
13/05/2015 |
Lev Aleksandrovich PONOMAREV
1941 Moscow Russian
KarinnaAkopovna MOSKALENKO |
Political demonstration
Moscow 30/12/2014 |
fine of RUB 1,000 | appeal decision Moscow City Court
10/04/2015 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police office on 30/12/2014 for the purpose of drawing up a record of 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, cited above). |
Not claimed | EUR 5,000
(five thousand euros) |
EUR 850
(eight hundred and fifty euros) to be paid to the representative |
| 6 | 55308/15
16/10/2015 |
DmitriyValeryevich VINOGRADOV
1983 Moscow Russian
Yelena Yuryevna PERSHAKOVA
AleksandrGeorgiyevich SHCHERBAKOV 1946 Moscow Russian
Yelena Yuryevna PERSHAKOVA |
Political demonstration
Moscow 30/12/2014
Political demonstration Moscow 30/12/2014 |
fine of RUB 1,000
fine of RUB 1,000 |
appeal decision Moscow City Court
16/04/2015
appeal decision Moscow City Court 16/04/2015 |
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police office on 30/12/2014 for the purpose of drawing up a record of administrative offence (seeLashmankin and Others, cited above, §§ 486‑92);
Art. 5 § 1 – unlawful deprivation of liberty: arrest and escorting to the police office on 30/12/2014 for the purpose of drawing up a record of 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 15
(fifteen euros)
EUR 15 (fifteen euros) |
EUR 5,000
(five thousand euros)
EUR 5,000 (five thousand euros) |
Not claimed
Not claimed |
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