KOTS v. RUSSIA and 4 other applications (European Court of Human Rights)

Last Updated on November 2, 2019 by LawEuro

Communicated on 15 October 2018

THIRD SECTION

Applications nos. 12150/18
Nadezhda Viktorovna KOTS v. Russia
and 4 other applications
(see appended list)

SUBJECT MATTER OF THE CASES

A. Applications nos. 12150/18, 29653/18 and 29773/18:

A number of volunteers for Mr A. Navalnyy, including the applicants, decided to distribute leaflets in Moscow in support of Navalnyy’s intention to run for President of Russia. Each volunteer did so on 8 July 2017 separately from the others, by positioning himself or herself at different stations of the Moscow metro. Each applicant was then sentenced to a fine under the Code of Administrative Offences (CAO) because the courts considered that, together with other volunteers, he had taken part in one and common act of group picketing, which had not been notified to the municipal authority as required for group events under the Public Events Act (PEA). The courts in application no. 12150/18 also considered that the applicant had violated section 11 of Presidential decree no. 202 of 9 May 2017 restricting (unrelated) public rallies during the 2017 FIFA Confederations Cup.

B. Application no. 28388/18:

A number of volunteers for Navalnyy, including the applicant, decided to distribute leaflets in Tyumen, too. Each volunteer did so on 8 and/or 9 July 2017 separately from the others, in different areas within the town of Tyumen. The applicant was then sentenced to a fine because the courts considered that, together with other volunteers, he had taken part, on the above dates, in one and common act of group picketing, which had not been notified to the municipal authority as required for group events under the Public Events Act (PEA).

C. Application no. 31417/18:

Similar actions or solo demonstrations in Tyumen on 7 October 2017 were also classified as a group public event. The applicant was considered as its organiser and sentenced to a fine for failing to make a prior notification of the event to the local authority.

QUESTIONS tO THE PARTIES

1.1. In respect of each applicant was there an “interference”:

(a) under Article 10 of the Convention, in particular, in respect of the freedom to impart information (applications nos. 12150/18 and 28388/18) or to hold opinions (applications nos. 29653/18, 29773/18 and 31417/18); and/or

(b) under Article 11 of the Convention in respect of the freedom of peaceful assembly, in view of the prosecution for violating the PEA?

1.2. Was there a violation of Article 10 or 11 of the Convention in respect of each applicant (see Novikova and Others v. Russia, nos. 25501/07 and 4 others, 26 April 2016) on account of their prosecution and, as to applications nos. 12150/18 and 29653/18, also their pre-trial arrests and detention? The parties are requested to make submissions on the following factual and legal aspects:

1.2.1. Was the “interference” “prescribed by law”? In particular:

– In so far as each applicant’s activity was classified as a group event, was each applicant’s conduct shown – as required by Russian law in such circumstances – to be “geographically close to each other” (территориально тяготеют друг к другу) (see section 31 of Ruling no. 28 of 26 June 2018 by the Plenary Supreme Court of Russia)? Was it foreseeable for the purpose of Article 10 § 2 or 11 § 2 of the Convention to classify each applicant’s conduct (a) at manifestly distant locations (such as different metro stations) and (b) on differing dates as their assembly with each other and as one and sole “public event” within the meaning of the PEA, namely as a “picket” (пикетирование)? What was the target object being picketed and what the “campaigning” (агитация) and related object of “campaigning” consisted of?

– In addition and having regard to the above considerations, was it foreseeable that Mr Miroshnik’s and Ms Kots’ conduct (applications nos. 12150/18 and 29653/18) would be considered as falling within the scope of an offence (namely, under Article 20.2 of the CAO) and thereby would give rise to the use of the escort and arrest procedures in respect of each of them?

1.2.2. Was the “interference” “necessary in a democratic society” in the pursuance of a legitimate aim? In particular:

– What legitimate aim was pursued by prosecuting on account of the conduct by one person situated – a fortiori, on different dates – at a very considerable distance from another person or persons (compare with Novikova and Others, cited above, §§ 144-47)?

– Did the domestic courts adduce relevant and sufficient reasons for the “interference” with freedom of expression/assembly, and base their conclusions on an acceptable assessment of the facts (see, for the approach, Annenkov and Others v. Russia, no. 31475/10, §§ 134-39, 25 July 2017, and Öğrü and Others v. Turkey, nos. 60087/10 and 2 others, §§ 64-71, 19 December 2017), also having regard to the requirements imposed by the Plenary Supreme Court of Russia in ruling no. 21 of 27 June 2013 (as developed in sections 1, 31 in fine and 38 of ruling no. 28 of 26 June 2018)?

2. Was there a violation of Article 5 § 1 of the Convention on account of Mr Miroshnik’s and Ms Kots’ pre-trial arrests and detention (applications nos. 12150/18 and 29653/18)?

3.1. As to applications nos. 12150/18, 29653/18, 29773/18 and 31417/18, was the offence record (протокол правонарушения) used against each applicant as a piece of adverse evidence (доказательство) or as a bill of indictment (compare with Karelin v. Russia, no. 926/08, §§ 66 and 68, 20 September 2016)?

3.2. Having regard, inter alia, to the answer to the above question, was there a violation of the objective impartiality requirement under Article 6 § 1 of the Convention in those applications because of the lack of a prosecuting party:

(a) at the trial hearings, while noting, in particular, in application no. 31417/18 the officer who had compiled the offence record was present at the trial hearing (compare with Karelin, cited above, §§ 64-65 and 68; and Mikhaylova v. Ukraine, no. 10644/08, § 66, 6 March 2018); or in application no. 12150/18 that the applicant chose not to attend the trial hearing;

and

(b) on appeal in 29653/18, 29773/18 and 31417/18, while noting, in particular, that the defendants in applications nos. 29773/18 and 31417/18 chose not to and no oral hearings were actually held (compare with Karelin, §§ 67-68 and 77-83)?

Application no.	Lodged on	Applicant Date of birth Place of residence	Represented by
12150/18	02/03/2018	Nadezhda Viktorovna KOTS 30/09/1955 Moscow	Konstantin Ilyich TEREKHOV
28388/18	02/06/2018	Aleksandr Nikolayevich MALETIN 03/12/1985 Tyumen
29653/18	08/06/2018	Vladislav Aleksandrovich MIROSHNIK 09/07/1996 Moscow	Ivan Yuryevich ZHDANOV
29773/18	08/06/2018	Anna Gennadyevna SIZOVA 09/11/1996 Trekhgornyy
31417/18	18/06/2018	Aleksandr Aleksandrovich KUNILOVSKIY 18/07/1980 Tyumen