TIUNOV v. RUSSIA (European Court of Human Rights)

Communicated on 15 January 2019

THIRD SECTION

Application no.29442/18
Sergey Yuryevich TIUNOV
against Russia
lodged on 29 May 2018

The facts and complaints in this application have been summarised in the Court’s decision, which is available in HUDOC.

QUESTIONS tO THE PARTIES

1.  Having regard to section 8 of ruling no. 4-P of 14 February 2013 by the Russian Constitutional Court concerning the sentence of community work for offences under Article 20.2 of the CAO, was there a violation of Article 7 of the Convention (see also section 38 of ruling no. 28 of 26 June 2018 by the Plenary Supreme Court of Russia)? Was it established that the applicant’s conduct had entailed damage to property or health or “other similar consequences”? By implication, was there also a violation of Article 7 of the Convention on account of the penalty of detention imposed in connection with the applicant’s refusal to do community work?

2.  Taking note of the sentence of community work and the penalty of detention imposed in connection with the applicant’s refusal to do community work, was there a violation of Article 4 § 2 of the Convention:

(a)  because of the sentence of community work prescribed, under Russian law, specifically for offences relating to one’s exercise of freedoms of expression and peaceful assembly, especially (as in the present case) in the context of violations of the PEA not entailing any damage to one’s property or health? Did this sentence fall within the scope of situations listed in Article 4 § 3 (a)-(d) of the Convention (compare with Stummer v. Austria [GC], no. 37452/02, §§ 117-20, ECHR 2011; see also Article 2 § 2(c) of the International Labour Organisation Convention No. 29 of 1930, and Article 1 of the ILO Convention No. 105 of 1957)? In particular, did this sentence amount to work or service which forms part of “normal” “civic” obligations?

(b)  Was the sentence of community work imposed in breach of any substantive or procedural requirement of Russian law and, if so, did any such illegality entail a violation of Article 4 of the Convention?

3.  Has the applicant exhausted domestic remedies as to Article 5 § 1 of the Convention and his escorting to the police station and his administrative arrest from 10 to 11 April 2018? In particular, was the trial/appeal court competent to deal with the substance of the issue relating, at least in substance, to Article 5 § 1 of the Convention and to afford adequate redress? Was the applicant required to bring a separate case under Chapter 22 of the Code of Administrative Procedure? Was this course of action available after his final conviction of the offence that was not punishable by administrative detention? Was there a violation of Article 5 § 1 of the Convention on account of the applicant’s escorting to the police station and his administrative arrest from 10 to 11 April 2018?

4.1.  In so far as the notification procedure is concerned, was there a violation of Article 11 of the Convention? In particular:

(i)  While opposing B.’s public event as planned, was the competent authority required, in compliance with Russian law as interpreted by the Constitutional Court, to make an alternative proposal (предложение) with a specific alternative venue or timing of the event (compare with sections 1, 9 in fine, 12 and 13 of ruling no. 28 of 26 June 2018 by the Plenary Supreme Court)? If yes, was any such proposal put forward, in a timely manner, in the present case? Was the public event “deemed approved” (считатьсясогласованным) in the absence of any such specific proposal (see section 2.2 of ruling no. 4-P of 14 February 2013 by the Constitutional Court)?

(ii)  Was it foreseeable that under Russian law actions relating to holding the event as initially planned or to participating in it entailed liability for an administrative offence, irrespective of the lack of any such proposal?

(iii)  Was the “interference” “necessary in a democratic society” not to allow the protest rally because another public event was planned for the same venue at the same time? Did the domestic authorities assess the relevant factual elements, for instance, a risk of clashes (for example, in view of the declared topics of the events, their types or target groups) and the size of the venue and its amenities (compare with section 12 of ruling no. 28 of 26 June 2018 by the Plenary Supreme Court)?

4.2.  Were there violations of Articles 10 and 11 of the Convention on account of the prosecution against the applicant under Articles 20.2 and 20.25 of the CAO? In particular:

(i)  Was the “interference” (in particular, as regards the sentence of community work: see section 8 of ruling no. 4-P of 14 February 2013 by the Russian Constitutional Court concerning the sentence of community work for offences under Article 20.2 of the CAO) “prescribed by law”?

(ii)  Was the “interference” “necessary in a democratic society” (compare with sections 1 and 38 of ruling no. 28 of 26 June 2018 by the Plenary Supreme Court)?

5.  Noting that the official who had compiled the offence record under Article 20.2 of the CAO was present at the trial hearing and that a similar official (a bailiff) was present at the appeal hearing in the case under Article 20.25 of the CAO whereas the courts used the offence recordas a piece of evidence proving the defendant’s guilt, was there a violation of the requirement of objective impartiality under Article 6 § 1 of the Convention in those cases on account of the lack of a prosecuting party under the CAO (compare with Karelin v. Russia, no. 926/08, 20 September 2016)?

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