CASE OF GUKOVSKIY AND OTHERS v. RUSSIA – 39118/12 and 19 others

Last Updated on March 23, 2023 by LawEuro

The applicants complained of the disproportionate measures taken against them as participants and organisers of public assemblies.

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FIRST SECTION
CASE OF GUKOVSKIY AND OTHERS v. RUSSIA
(Applications nos. 39118/12 and 19 others – see appended list)
JUDGMENT
STRASBOURG
23 March 2023

This judgment is final but it may be subject to editorial revision.

In the case of Gukovskiy and Others v. Russia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:
Lətif Hüseynov, President,
Ivana Jelić,
Erik Wennerström, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 2 March 2023,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The Russian Government (“the Government”) were given notice of the applications.

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the disproportionate measures taken against them as participants and organisers of public assemblies. Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

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 11 OF THE CONVENTION

6. The applicants complained principally of disproportionate measures taken against them as participants and an organiser (application no. 39118/12) of public assemblies, namely their arrest in relation to the dispersal of these assemblies and their conviction for administrative offences. They relied, expressly or in substance, on Article 11 of the Convention.

7. The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and 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).

8. In the leading cases of Frumkin v. Russia, no. 74568/12, ECHR 2016 (extracts), Navalnyy and Yashin v. 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.

9. 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 interferences with the applicants’ freedom of assembly were not “necessary in a democratic society”.

10. These complaints are therefore admissible and disclose a breach of Article 11 of the Convention.

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11. Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018, and Korneyeva v. Russia, no. 72051/17, §§ 34-36, 8 October 2019, as to administrative escorting to and/or detention in a police station beyond three hours for non-custodial offences, without substantiating the impossibility to compile an offence report at the rally venue or any exceptional circumstances or another valid ground under the Code of Administrative Offences (CAO) or continued detention after the offence report was compiled; Karelin v. Russia, no. 926/08, §§ 58-85, 20 September 2016, concerning the lack of a prosecuting party in criminal proceedings under the CAO; and Martynyuk v. Russia, no. 13764/15, §§ 21-28, 8 October 2019, related to the exercise of the right to examine witnesses in those proceedings.

IV. REMAINING COMPLAINTS

12. In view of the findings in paragraphs 10 and 11 above, there is no need to examine (the other aspects of) the complaints raised by some applicants under Articles 5 and 6 of the Convention.

13. Furthermore, some applicants also raised other complaints under various Articles of the Convention.

14. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

15. 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.”

16. Regard being had to the documents in its possession and to its case‑law (see, in particular, Navalnyy and Others v. Russia [Committee], no. 25809/17 and 14 others, § 22, 4 October 2022), the Court finds it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicants’ claims for just satisfaction.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints under Article 11 of the Convention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, decides that it is not necessary to examine the other aspects of the complaints raised by some applicants under Articles 5 and 6 of the Convention, and declares the remainder of the applications inadmissible;

3. Holds that these complaints disclose a breach of Article 11 of the Convention;

4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);

5. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;

6. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 23 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                     Lətif Hüseynov
Acting Deputy Registrar                   President

_________

APPENDIX
List of applications raising complaints under Article 11 of the Convention
(disproportionate measures against organisers and participants of public assemblies)

No.	Application no. Date of introduction	Applicant’s name Year of birth	Representative’s name and location	Name of the public event Location Date	Administrative charges	Penalty	Final domestic decision Court Name Date	Other complaints under well-established case-law	Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[i]
1.	39118/12 08/06/2012	Igor Petrovich GUKOVSKIY 1987	Memorial Human Rights Centre Moscow   Ms N. Morozova and others	Rally to protest against fraud during the elections to the State Duma on 04/12/2011 Moscow 05/12/2011	Article 20.2 § 1 of the CAO   Article 19.3 § 1 of CAO	fine of RUB 2,000   15 days of detention	Basmannyy District Court of Moscow 24/01/2012   Basmannyy District Court of Moscow 10/12/2011	Art. 6 (1) – and Art. 6 (3) (d) – unfair trial in view of restrictions on the right to examine witnesses – a police officer, whose pre-trial written statements were used for the conviction, and two witnesses on behalf of the defence in the case under Art. 19.3 of the CAO which ended with the final decision of the Basmannyy District Court of Moscow on 10/12/2011 (Martynyuk v. Russia, no. 13764/15, §§ 21-28, 8 October 2019)	5,000, for pecuniary and non-pecuniary damage to the applicant;   900, for legal costs, to be paid directly to Ms Natalya Morozova
2.	43452/16 09/07/2016	Yuriy Valeryevich VILNID 1976	Zboroshenko Nikolay Sergeyevich Mytishchi	Rally to support Navalnyy brothers Moscow 30/12/2014	Article 19.3 § 1 of CAO	fine of RUB 1,000	Moscow City Court 30/03/2016		2,000
3.	53167/17 13/06/2017	Yuriy Vyacheslavovich TIVILEV 1991	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Tula 26/03/2017	Article 20.2 § 5 of CAO	24 hours of community work	Tula Regional Court 03/05/2017	Art. 5 (1) – unlawful detention – escorting to and detention in a police station beyond 3 hours on 26/03/2017 for compiling an offence report; Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
4.	53174/17 13/07/2017	Dmitriy Nikolayevich KOLESNIK 1987	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Tula 26/03/2017	Article 20.2 § 5 of CAO	fine of RUB 10,000	Tula Regional Court 02/05/2017	Art. 5 (1) – unlawful detention – escorting to and detention in a police station beyond 3 hours on 26/03/2017 for compiling an offence report	4,000
5.	70352/17 07/09/2017	Andrey Aleksandrovich KISELEV 1987	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Tula 26/03/2017	Article 20.2 § 5 of CAO	fine of RUB 10,000	Tula Regional Court 04/05/2017	Art. 5 (1) – unlawful detention – escorting to and detention in a police station beyond 3 hours on 26/03/2017 for compiling an offence report; Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
6.	70384/17 07/09/2017	Daniil Olegovich GOZHIY 1985	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Tula 26/03/2017	Article 20.2 § 5 of CAO	fine of RUB 10,000	Tula Regional Court 04/05/2017	Art. 5 (1) – unlawful detention – arrest and detention on 26/03/2017 for the sole purpose of drawing up a record of an administrative offence	4,000
7.	70388/17 07/09/2017	Dmitriy Vyacheslavovich NIKOLAYEV 1992	Navalnyy Aleksey Anatolyevich Melekhovo	Anticorruption rally Tula 26/03/2017	Article 20.2 § 5 of CAO	40 hours of community work	Tule Regional Court 03/05/2017	Art. 5 (1) – unlawful detention – escorting to and detention in a police station on 26/03/2017 for compiling an offence report; Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
8.	70391/17 07/09/2017	Irina Igorevna NESTERYUK 1984	Navalnyy Aleksey Anatolyevich Melekhovo	Anticorruption manifestation Tula 26/03/2017	Article 20.2 § 5 of CAO	28 hours of community work	Tula Regional Court 04/05/2017	Art. 5 (1) – unlawful detention – escorting to and detention in a police station beyond 3 hours on 26/03/2017 for compiling an offence report	4,000
9.	70405/17 07/09/2017	Vadim Vladimirovich RUBTSOV 1984	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Moscow 26/03/2017	Article 20.2 § 5 of CAO	fine of RUB 15,000	Moscow City Court 04/08/2017	Art. 5 (1) – unlawful detention – escorting to and detention in a police station beyond 3 hours on 26/03/2017 for compiling an offence report; Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
10.	70447/17 07/09/2017	Aleksandr Vladimirovich SUROVOY 1991	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Bryansk 26/03/2017	Article 20.2 § 5 of CAO	fine of RUB 10,000	Bryansk Regional Court 24/05/2017	Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	3,500
11.	70454/17 07/09/2017	Pavel Yuryevich SUVOROV 1952	Terekhov Konstantin Ilyich Moscow	Anticorruption rally St Petersburg 12/06/2017	Article 19.3 § 1 of CAO   Article 20.2 § 5 of CAO	fine of RUB 500   fine of RUB 10,000	St Petersburg City Court 27/06/2017 St Petersburg City Court 26/06/2017	Art. 5 (1) – unlawful detention – on 12‑13/06/2017 the applicant remained in detention after the offence record had been compiled (Korneyeva v. Russia, no. 72051/17, § 35, 8 October 2019); Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
12.	78517/17 03/11/2017	Yuriy Borisovich PEROV 1955	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Tula 26/03/2017	Article 20.2 § 5 of CAO	fine of RUB 10,000	Tula Regional Court 05/05/2017	Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	3,500
13.	80593/17 14/11/2017	Anton Pavlovich KONDAKOV 1990	Sotnikov Dmitriy Valeryevich Balashikha	Anticorruption rally Tula 26/03/2017	Article 20.2 § 6.1 of CAO	fine of RUB 10,000	Tula Regional Court 15/05/2017	Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	3,500
14.	2937/18 21/12/2017	Aleksandr Valeryevich FEDOROV 1994	Terekhov Konstantin Ilyich Moscow	Anticorruption rally St Petersburg 12/06/2017	Article 20.2 § 5 of CAO Article 19.3 § 1 of CAO	fine of RUB 10,000 6 days of detention	St Petersburg City Court 23/06/2017	Art. 5 (1) – unlawful detention – on12‑13/06/2017 the applicant remained in detention after the offence record had been compiled (Korneyeva, cited above); Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	5,000
15.	3565/18 20/12/2017	Oleg Igorevich LYTKIN 1989	Terekhov Konstantin Ilyich Moscow	Anticorruption rally St Petersburg 12/06/2017	Article 19.3 § 1 of CAO Article 20.2 § 5 of CAO	fine of RUB 1,000 fine of RUB 12,000	St Petersburg City Court 22/06/2017	Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings; Art. 5 (1) – unlawful detention – on 12‑13/06/2017 the applicant remained in detention after the offence record had been compiled (Korneyeva, cited above)	4,000
16.	4923/18 03/01/2018	Yevgeniy Viktorovich LAPTEV 1991	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Moscow 26/03/2017	Article 20.2 § 5 of CAO	fine of RUB 15,000	Moscow City Court 06/07/2017	Art. 5 (1) – unlawful detention – escorting to and detention in a police station on 26/03/2017 for compiling an offence report; Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
17.	4925/18 03/01/2018	Andrey Yaroslavovich MENSHIKOV 1989	Terekhov Konstantin Ilyich Moscow	Anticorruption rally St Petersburg 12/06/2017	Article 19.3 § 1 of CAO Article 20.2 § 5 of CAO	fine of RUB 500 fine of RUB 3,000	St Petersburg City Court 06/07/2017	Art. 5 (1) – unlawful detention – on 12‑14/06/2017 the applicant remained in detention after the offence record had been compiled (Korneyeva, cited above); Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
18.	5243/18 03/01/2018	Alla Andreyevna CHERNAYA 1946	Terekhov Konstantin Ilyich Moscow	Anticorruption rally St Petersburg 12/06/2017	Article 19.3 § 1 of CAO Article 20.2 § 5 of CAO	fine of RUB 500 fine of RUB 5,000	St Petersburg City Court 06/07/2017	Art. 5 (1) – unlawful detention – on 12‑13/06/2017 the applicant remained in detention after the offence record had been compiled (Korneyeva, cited above); Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
19.	5337/18 08/01/2018	Vladimir Nikolayevich KUZMIN 1983	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Moscow 26/03/2017	Article 20.2 § 5 of CAO	fine of RUB 10,000	Moscow City Court 02/08/2017	Art. 5 (1) – unlawful detention – escorting to and detention in a police station beyond 3 hours on 26/03/2017 for compiling an offence report; Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
20.	7244/18 22/01/2018	Yevgeniy Borisovich KALASHNIKOV 1988	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Kaliningrad 12/06/2017	Article 20.2 § 5 of CAO	fine of RUB 10,000	Kaliningrad Regional Court 24/08/2017	Art. 5 (1) – unlawful detention – escorting to and detention in a police station beyond 3 hours on 12/06/2017 for compiling an offence report	4,000

[i] Plus any tax that may be chargeable to the applicants.