Last Updated on March 29, 2022 by LawEuro
On 20 December 2016, at the anniversary of the Soviet security service – All-Russian Extraordinary Commission (Cheka) – the applicants, political activists, made an installation “A new Chekist[1]”. They attached a wooden cross to the base of the bust of the Cheka’s first director Mr F. Dzerzhinsky in Krasnodar. Shortly thereafter the second applicant published a photo of the installation with an explanatory satirical post on his Facebook page. It drew the public’s attention to the increased role of the Russian security service in the protection of what that agency considered to be traditional spiritual values of the Russian society. Later that day, the incident was reported to the police. By the time when a police officer arrived to inspect the monument, the installation had already been removed. The police officer noted that the monument was not damaged.
THIRD SECTION
CASE OF CHIRIKOV AND NEKRASOV v. RUSSIA
(Applications nos. 47942/17 and 58664/17)
JUDGMENT
STRASBOURG
29 March 2022
This judgment is final but it may be subject to editorial revision.
In the case of Chirikov and Nekrasov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President,
Anja Seibert-Fohr,
Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications 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 the applicants, Russian nationals, listed in the appended table, (“the applicants”), on the various dates indicated therein;
the decision to give notice of the applicants’ complaints under Articles 6 and 10 of the Convention and the first applicant’s compliant under Article 3 of the Convention to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov, and to declare the remainder of the applications inadmissible;
the parties’ observations;
Having deliberated in private on 8 March 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. On 20 December 2016, at the anniversary of the Soviet security service – All-Russian Extraordinary Commission (Cheka) – the applicants, political activists, made an installation “A new Chekist[1]”. They attached a wooden cross to the base of the bust of the Cheka’s first director Mr F. Dzerzhinsky in Krasnodar. Shortly thereafter the second applicant published a photo of the installation with an explanatory satirical post on his Facebook page. It drew the public’s attention to the increased role of the Russian security service in the protection of what that agency considered to be traditional spiritual values of the Russian society. Later that day, the incident was reported to the police. By the time when a police officer arrived to inspect the monument, the installation had already been removed. The police officer noted that the monument was not damaged.
2. On 23 and 25 December 2017 the Leninskiy District Court of Krasnodar examined the cases against the second and the first applicants respectively. The applicants’ lawyers were not given an opportunity to be present at the court hearings. The court found that the applicants had breached public order by damaging (defacing) the monument. The court did not examine as to whether the applicants’ installation had been an expression of their opinion. The applicants were convicted of minor hooliganism, an offence proscribed by the Russian Code of Administrative Offences. They received the maximum punishment for that offence – fifteen days of administrative detention. The conditions in which the first applicant served his sentence are described in the Appendix.
3. The applicants subsequently challenged their convictions on appeal before the Krasnodar Regional Court, which dismissed the first and the second applicants’ claims on 29 December 2016 and 26 January 2017 respectively. The applicants’ lawyers were present at the court hearings.
4. In the proceedings before the Court the applicants claimed that their prosecution for minor hooliganism was in breach of Article 10 of the Convention and that there had been a violation of Article 6 of the Convention on account of the trial conducted in the absence of their lawyers. The first applicant claimed that the conditions of his detention amounted to “inhuman and degrading treatment” prohibited by Article 3 of the Convention.
THE COURT’S ASSESSMENT
I. JOINDER OF THE APPLICATIONS
5. 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 10 OF THE CONVENTION
6. In the absence of the Government’s argument to the contrary, the installation created by the applicants can be regarded as “expression” within the meaning of Article 10 of the Convention. Their complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
7. The parties agreed that the applicants’ conviction interfered with their freedom of expression. Given the subsidiary nature of the Convention, and the limited scope of its task when assessing whether an interference was in line with domestic law, the Court is ready to accept that the applicants’ conviction had sufficient basis in domestic law. It can further be accepted that the interference pursued the legitimate aim of protecting the “rights of others” (compare to Handzhiyski v. Bulgaria, no. 10783/14, §§ 46-47, 6 April 2021).
8. The Government explained the necessity of the applicants’ conviction by the unlawfulness of their conduct. That argument, however, relates to the lawfulness of the interference, rather than to its necessity and it cannot therefore satisfy the Court, which must assess the proportionality of the interference to its legitimate aim and take into account the reasons adduced by the domestic courts to justify the applicants’ punishment (see Mariya Alekhina and Others v. Russia, no. 38004/12, § 211, 17 July 2018).
9. The Court notes that through installation of the cross on the monument, the applicants sought to raise a discussion concerning the policy of the Russian security service, that is to say to express their opinion on a matter of public interest, which is in principle entitled to heightened protection. The monument was connected to a historical figure known for leading a security service at the early years of the Soviet Union. The applicants’ act was peaceful, and nothing suggests that it was likely to cause public disturbance. It is important that no physical damage was caused to the monument and that as far as appears from the case file documents no expenses were incurred on account of the removal of the cross. Although the installation affected visual appearance of the sculpture, the visual impairment was not long-lasting, as the cross remained in place only for several hours (see paragraph 1 above).
10. The above considerations were not taken into account by the domestic courts, which failed to assess whether the applicants’ installation had constituted an expression of their views, or to adduce “relevant or sufficient reasons” capable to justify the applicants’ conviction, not to say the imposition of the most severe punishment of administrative detention. The latter was disproportionate to the alleged damage and had a strong “chilling effect” on the freedom of expression.
11. Those shortcomings were aggravated by the absence of the applicants’ lawyers during the trials. The undue curtailment of the procedural guarantees prevented the defence from raising effectively their arguments and eventually had adversarial effect on the thoroughness of the examination of the case by the domestic courts.
12. There has accordingly been a violation of that Article 10 of the Convention in respect of the applicants.
III. alleged violation of Article 6 of the convention
13. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal question raised by the applicants. It thus considers that their complaint under Article 6 of the Convention is admissible, but that there is no need to give a separate ruling on it (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and Karman v. Russia, no. 29372/02, § 47, 14 December 2006).
IV. ALLEGED VIOLATION of Article 3 of the convention
14. The first applicant’s complaint concerning the conditions of his detention is covered by the well‑established case-law of the Court (see Muršić v. Croatia [GC], no. 7334/13, §§ 136-37, ECHR 2016, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 145-48, 10 January 2012). That complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor it is inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 3 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
15. The applicants claimed 20,000 euros (EUR) each in respect of non‑pecuniary damage.
16. The Government submitted that the claim was excessive.
17. The Court awards the first applicant EUR 8,300 and the second applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants.
18. The Court further 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.
19. The applicants did not claim costs and expenses. Accordingly, there is no call to make an award under that head.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 10 of the Convention in respect of the applicants;
4. Holds that there is no need to examine the applicants’ complaint under Article 6 of the Convention;
5. Holds that there has been a violation of Article 3 of the Convention in respect of the first applicant;
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) EUR 8,300 (eight thousand three hundred euros) to the first applicant, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(ii) EUR 7,500 (seven thousand five hundred euros) to the second applicant, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 29 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President
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[1] “Chekist” – an officer of the All-Russian Extraordinary Commission (Cheka)
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