European Court of Human Rights

CASE OF LUTSKEVICH v. RUSSIA (European Court of Human Rights)

Last Updated on November 4, 2019 by LawEuro

THIRD SECTION
CASE OF LUTSKEVICH v. RUSSIA
(Applications nos. 6312/13 and 60902/14)

JUDGMENT
STRASBOURG
15 May 2018

FINAL
08/10/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Lutskevich v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena Jäderblom, President,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking,
María Elósegui, judges,
and Fatoş Aracı, DeputySection Registrar,

Having deliberated in private on 10 April 2018,

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

PROCEDURE

1.  The case originated in two applications (nos. 6312/13 and 60902/14) 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 a Russian national, Mr Denis AleksandrovichLutskevich(“the applicant”), on 11 January 2013 and 2 September 2014 respectively.

2.  The applicant was represented by Mr D.Agranovskiy, a lawyer practising in Elektrostal. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  The applicant complained about his prosecution and conviction for participation in mass disorder. He submitted that his pre-trial detention had not been based on relevant and sufficient reasons and complained that various aspects of his detention had amounted to degrading treatment. The applicant further alleged a violation of his right to freedom of expression and his right to freedom of peaceful assembly.

4.  On 19 December 2013 and 13 October 2014 the applications were communicated to the Government. The applications were granted priority under Rule 41 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1992 and lives inLobnya, Moscow Region.

A.  Demonstration of 6 May 2012

6.  The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and YaroslavBelousovv. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below.

7.  On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m.The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it transpired that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd,a police cordon forced the protestors to remain within the barriers, andthere were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protestors from the square.

8.  On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.

B.  The applicant’s arrest and pre-trial detention

9.  At the time of the events the applicant was a first-year student at the faculty of culture studies of the State Academic University for the Humanities. On 6 May 2012 he took part in the demonstration at Bolotnaya Square. According to him, he was beaten up by the police as they were dispersing the demonstration.

10.  At 4 a.m. on 7 May 2012 the applicant was admitted to the emergencyward of Sklifosovskiyhospital where he was examined by a traumadoctor and a neurosurgeon. The examination revealed multiple bruises on the applicant’s chest, spine, shoulders,knees and head.

11.  After the events of 6 May 2012 the applicant continued to live at his usual address and pursue his studies. On 9 June 2012 he was arrested on suspicion of having participated in acts of mass disorder and of using violence against the police during the demonstration of 6 May 2012.On the same day the Basmannyy District Court of Moscow ordered the applicant’s pre-trial detention until 9 August 2012. It referred to the gravity of the charges and information about the applicant’s personality. The District Court noted, in particular, that the applicant’s father was a Ukrainian national living in Ukraine, and that the applicant might therefore flee to avoid the investigation and trial. It concluded that those circumstances gave sufficient reasons to believe that the applicant, if he were at liberty, was likely to continue his criminal activity, influence witnesses, destroy evidence or otherwise obstruct the investigation of the criminal case, which was at an initial stage.

12.  On 18 June 2012 charges were brought against the applicant under Articles 212 § 2 (participation in acts of mass disorder accompanied by violence) and 318 § 1 of the Criminal Code (use of violence against a public official). He was accused, in particular, of having torn a protection helmet off a police officer’s head.

13.  On 11 July 2012 the Moscow City Court upheld the detention order of 9 June 2012.

14.  On 7 August 2012 the Basmannyy District Court of Moscow examined an investigator’s request for an extension of the applicant’s pre‑trial detention. The applicant requested that an alternative preventive measure be applied pending trial, such as house arrest or a written undertaking not to leave a specified place. On the same day the District Court found that the circumstances that had justified the detentionorder had not changed and extended the applicant’s detention until 6November 2012.On 5 September 2012 the Moscow City Court upheld that decision.

15.  On 2 November 2012 the Basmannyy District Court authorised a furtherextension of the applicant’s detention until 6 March 2013. It reiterated the grounds given in the previous extension orders and stated that the circumstances justifying the detention order had not changed. On 3 December 2012 the Moscow City Court upheld that decision.

16.  On 21 November 2012 the charges against the applicant were reformulated. It was additionally stated that the applicant had shouted insulting slogans and used metal barriers to obstruct the police;that at least three times he had thrown stones and pieces of tarmac at police officers and had once punched a policeman; and that he had also grabbed a police officer’s uniform and had snatched a protection helmet from his hands.

17.  On 29 November 2012 Police Officer P. identified the applicant during an identification parade as a participant in the mass disorder and the person who had twice thrown pieces of tarmac at the police and tried to snatch the protection helmet from a policeman’s hands. He specified that he had not seen whether the applicant had in fact succeeded in snatching the helmet or not.

18.  On 7 December 2012 the investigator of the Zamoskvoretskiy Inter‑district Investigation Committee of Moscow refused to open a criminal case into allegations made by the applicant that he had been subjected to ill‑treatment by the police during his arrest. The investigator considered that the use of force by the police had been justified by the behaviour of the protesters, including the applicant, who had actively resisted their arrest and thrown various objects at the police officers.

19.  On 27 February 2013 the Basmannyy District Court granted an extension of the applicant’s detention until 9 June 2013, essentially on thesame grounds as earlier, noting that the applicant’s state of health was satisfactory and did not warrant his release. That decision was upheld by the Moscow City Court on 27 March 2013.

20.  On 22 April 2013 the Moscow City Court authorised a further extension of the applicant’s pre-trial detention until 6 July 2013. The court noted that even though the applicant and his lawyer had already finished reading the case file, other defendants had not. It reiterated the grounds given in the previous extension orders and stated that the circumstances justifying the detention order had not changed.

21.  On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges.

22.  On 6 June 2013 that court granted another extension of the applicant’s detention until 24 November 2013. The decision concerned eleven defendants. Along with the gravity of the charges, the court based its decision on the findings that “the reasons which initially warranted the detention have not changed” and that “no other measures of restraint would secure the aims and goals of the judicial proceedings”. The Moscow City Court upheld that extension order on 2 July 2013.

23.  On 19 November 2013 the Zamoskvoretskiy District Court examined an investigator’s request for an extension of detention in respect of nine defendants, including the applicant. The applicant presented a personal guarantee from a member of the State Duma in support of an undertaking by him to appear before the investigating authorities and the courts for the examination of his case. However, the District Court did not consider that guarantee and ordered that the applicantand his co-defendantsbe detained until 24 February 2014 on the grounds of gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order.

C.  Conditions of detention

24.  From 20 June 2012 until his conviction the applicant was held in remand prison IZ-77/5 in Moscow. There he was detained in cells no. 403 (until 20 May 2013, then from 27 May 2013 to 19 June 2013, and from 29 June 2013 to January 2014), no. 12 (until 25 May 2013), no. 317 (until 27 May 2013), and no. 4 (until 29 June 2013).

25.  The cells had the following characteristics:

– cellno. 403: 40 sq. m. and ten sleeping places;

– cellno. 12: 6.1 sq. m. and one sleeping place;

– cellno. 317: 32.9 sq. m. and eight sleeping places;

– cellno. 4: 48 sq. m. and twelve sleeping places.

26.  The parties agreed that the number of inmates in the cellshad not exceeded the design capacity. They also agreed that the size of the cells and the number of detainees had allowed the applicant four square metres of personal space and that the applicant had had an individual sleeping place in every cell.

27.  The parties provided the following accounts of the conditions in the cells. According to the applicant, prison cell no. 403 measured approximately 7 by 5 metres and housed ten inmates, including himself. The cell was inadequately lit and ventilated, was excessively hot in the summer and cold in the winter. The windows were too high to give sufficient light for reading or working with documents. A shower was allowed once a week and the lavatory pan was separated from the living space only by a plastic partition. The bed linen was old, and the beds were small for a man of his height. Outdoor exercise was limited to one hour per day.

28.  According to the Government, all of the cells had sanitary units with wash stands and the necessary furniture. The cells were equipped with ventilation, heating and lighting; the state of the sanitary facilities had been satisfactory; the bedding had been changed once a week; and the cells had been disinfected and subjected to pest control regularly. The applicant had been able to shower once a week and entitled to one hour of outdoor exercise per day.

D.  Transfer between the detention centre and the courthouse

29.  The applicant’s description of the conditions of detention during his transfer from the remand prison to court and back,and the Government’s submissions in that regard, were identical to those in the case of YaroslavBelousov (cited above,§§ 69-73).

30.  As regards the conditions of detention in the holding room of the Moscow City Court, the applicant submitted that the roomhad been poorly lit and that access to a toilet had been limited to once an hour. In addition, he had been required to strip naked and to perform sit-ups during the body search conducted in the holding room.

E.  Conditions in the courtroom

31.  The court proceedings began on 6 June 2013 in hearing room no. 338 at the Moscow City Court, moving at the end of July 2013 to hearing room no. 635. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued in hearing room no. 303 at the Nikulinskiy District Court of Moscow.In January and February 2014 they took place in hearing room no. 410 at the Zamoskvoretskiy District Court. Those hearing rooms were equipped with metal cages in which nine defendants (eight from 19 December 2013), including the applicant, sat during the hearings.

32.  For a detailed description of the conditions in those hearing rooms, see YaroslavBelousov(cited above, §§ 74-77).

F.  The applicant’s trial

33.  On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participating in acts of mass disorder and committing acts of violence against police officers. On 18 June 2013 the same court began the trial on the merits.

34.  On an unspecified date Police Officer T., the alleged victim of the applicant’s assault, was examined as a witness. He testified that at some point he had been surrounded by the crowd and subjected to violence. T. stated that the applicant had tried to snatch the protection helmet from his hands. Another officer, M., also questioned as a witness, stated that the applicant had shouted something and thrown a stone or a piece of tarmac at a policeman.

35.  On 21 February 2014 the Zamoskvoretskiy District Court found the applicant guilty as charged. It held, in particular, as follows:

“Between 4 p.m. and 8 p.m. on 6 May 2012 … at Bolotnaya Square … unidentified persons … called those present [at the venue] to move outside the agreed meeting venue, to defy the lawful orders of the police …, to use violence … which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [and] the destruction of property.

On the same day at 5 p.m. at the latest [the defendants] acquired the criminal intent to participate in mass disorder and to use violence against … police officers …

Moreover … the participants of the acts of mass disorder threw pieces of tarmac, stones, sticks and other objects at the police … which hit them on various parts of their body, and [the defendants] … [who] participated in the acts of mass disorder … implemented their criminal intent to use violence against public officials … applied physical force which was not a danger to the life or health of those [officials]…

Between 5.05 p.m. and 10 p.m. [the applicant] … shouted insulting slogans and used metal barriers to block the police’s movement … thus preventing the arrest of the participants in the acts of mass disorder … [The applicant], acting intentionally, at least three times threw stones and pieces of tarmac at police officers in a targeted manner … and used violence against an unidentified police officer which did not endanger his life or health … unidentified participants in the acts of mass disorder, acting intentionally, tore a protection helmet off an unidentified police officer’s head and punched and kicked him several times in the head and body, meanwhile [the applicant] … punched this police officer at least once.

[The applicant] … used violence against Police Officer T. which did not endanger his life or health …

… unidentified participants of the acts of mass disorder intentionally tore off [T.’s] protection helmet, which [T.] continued to hold in his hands, and punched him in the head and body, whereupon [the applicant] intentionally grabbed [T.’s] uniform and … snatched the helmet from his hands.

[The applicant] pleaded not guilty and testified that … he had decided to attend the public gathering on 6 May 2012 …When leaving the MalyyKamennyy Bridge [the applicant] saw a lot of police officers equipped with bullet-proof vests, helmets and truncheons, which filled him with indignation. As nothing was happening on the stage, [the applicant] decided to return … when leaving the venue he saw the police officers randomly arresting people while hitting them with truncheons … [The applicant] was hit in the back three times with a truncheon. When he saw these violent acts by the police, [the applicant] approached the barriers where other protestors were standing and expressed his indignation … Then … he tried to leave the venue … when somebody tore off his shirt. … At some point [the applicant] came across police officer [T.] … who was not wearing any helmet. [The applicant] tried to leave, but suddenly police officers ran up to him and started to beat him in the head and body, then they arrested him and … took him to a police vehicle. [The applicant] insisted that he had committed no acts in respect of police officer [T.], had not seen his helmet and had snatched nothing from his hands.

…the court considers the [defendants’] arguments that they were protecting somebody from police officers or happened to be victims of the police’s use of force as farfetched and aimed at mitigating their responsibility …”

36.  The applicant was sentenced to three years and six months’ imprisonment, calculated on the basis of a three-year prison term under Article 212 § 2 of the Criminal Code, partly concurrent with a term of one year under Article 318 § 1. The applicant’s pre-trial detention counted towards the prison sentence.

37.  The applicant appealed. He complained, in particular, that he had not used metal barriers to block the police’s movement and insisted that he had been standing close to those barriers before the protestors had started to be arrested. The applicant also pointed out that the video records proved that he had not taken T.’s helmet and had not used violence against him. In his opinion, the first-instance court had not assessed his statements about ill‑treatment by the police.

38.  On 20 June 2014 the Moscow City Court upheld the first-instance judgment.

G.  Correspondence with the Court

39.  The applicant was represented by a lawyer, Mr D., throughout the criminal proceedings at domestic level. On 11 January 2013 Mr D. sent the Court an introductory letter containing the outline of the applicant’s complaints of ill-treatment by the police on 6 May 2012 and of unjustified pre-trial detention.

40.  On 24 January 2013 the Registry of the Court acknowledged receipt of the introductory letter,registered under application no. 6312/13. The applicant was invited to return the completed application form within eight weeks of receipt of the Court’s letter but no later than 21 March 2013. As no further correspondence had been received from the applicant, on 28 August 2013 the Registry of the Court asked him whether he was still being represented by Mr D. and reminded him to return the completed application form.

41.  On 18 September 2013 the Court received the completed application form, signed by a different lawyer, Mr Agranovskiy. It contained complaints about the conditions of detention in the remand prison, in the courtroom and during transfers to and from the prison, and of unjustified pre-trial detention.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

42.  The Criminal Code of the Russian Federation provides as follows:

Article 212. Mass disorder

“1.  The organisation of mass disorder, accompanied by violence, riots, arson, destruction of property, the use of firearms, explosives and explosive devices, as well by armed resistance to a public official, shall be punishable by four to ten years’ deprivation of liberty.

2.  Participation in the types of mass disorder provided for by paragraph 1 of this Article shall be punishable by three to eight years’ deprivation of liberty.

3.  The instigation of mass disorder provided for by paragraph 1 of this Article, or the instigation of participation in such acts, or the instigation of violence against citizens, shall be punishable by a restriction of liberty for up to two years, or community service for up to two years, or deprivation of liberty for the same term.”

Article 318. Use of violence against a public official

“1.  The use of violence which does not endanger life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of up to 200,000 roubles or an equivalent of the convicted person’s wages for 18 months, or community service for up to five years, or up to five years’ deprivation of liberty …”

43.  For a summary of the relevant domestic law provisions governing pre-trial detention and for the practice of the domestic courts in that matter, see the case of Zherebin v. Russia (no. 51445/09, §§ 16-25, 24 March 2016).

44.  For a summary of the applicable regulations and the European standards for prison conditions, see Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 55 et seq., 10 January 2012).

THE LAW

I.  JOINDER OF THE APPLICATIONS

45.  Given their common factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II.  THE GOVERNMENT’S PRELIMINARY OBJECTION

46.  The Government submitted that the applicant had returned the completed application form, registered under no. 6312/13 and containing all his complaints,eight months after the submission of the initial communication. His application could not, therefore, be regarded as duly lodged.

47.  The Court reiterates that, in accordance with its established practice and Rule 47 § 5 of the Rules of Court, as in force at the relevant time, it normally considers the date of the introduction of an application to be the date of the “first communication” indicating an intention to lodge an application and giving some indication of the nature of the application. Such first application would in principle interrupt the running of the six-month time-limit. Nonetheless, an applicant’s failure to pursue his or her application with reasonable expedition after an initial introductory contact may lead the Court to decide that the interruption of the six-month period is to be invalidated. The date of the submission of the completed application will therefore be considered as the date of its introduction (see Yartsev v. Russia (dec.), no. 13776/11, §§ 21-22, 26 March 2013).

48.  The Court observes in the present case that the applicant’s initial communication of 11 January 2013 contained the outline of his complaints under Article 3 of the Convention of ill-treatment by the police on 6 May 2012 and under Article 5 of unjustified pre-trial detention. It considers that it is not necessary for it to reach a conclusion as regards the complaint under Article 3 at this point, since it is inadmissible in any event for the reason given below (see paragraphs 51-52 below). As regards the complaint under Article 5, the Court reiterates that a person alleging a violation of Article 5 § 3 of the Convention with respect to the length of his or her detention is complaining of a continuing situation which should be considered as a whole (see Kokoshkina v. Russia, no. 2052/08, § 68, 28 May 2009). It notes that following his placement in custody on 9 June 2012, namely seven months preceding the submission of the initial communication, the applicant remained continuously in detention until 21 February 2014, which is five months after lodging the completed application form. The Court therefore finds that it has competence to examine the entire period of his detention and dismisses the Government’s preliminary objection in that regard.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION DURING PRE-TRIAL DETENTION

49.  The applicant complained under Article 3 of the Convention of the poor conditions of his detention in IZ-77/5, in the holding room at the Moscow City Court and during transfers to and from the prison. He also alleged that he had been subjected to ill-treatment by the police during the dispersal of the demonstration on 6 May 2012 and that there had been no effective investigation following his complaint about it. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Admissibility

50.  The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint of ill-treatment during the dispersal of the demonstration.In particular, he had not challenged before a court the investigator’s decision of 7 December 2012 refusing to institute criminal proceedings against the police officers. The Government also submitted that the complaint about the conditions of detention in the holding room of the Moscow City Court did not contain sufficient details.

51.  The Court has previously established that an appeal to a court against an investigating authority’s decision dismissing an applicant’s complaint of ill-treatment would be a normal avenue of exhaustion in respect of an Article 3 complaint (see, for example, Belevitskiy v. Russia, no. 72967/01, § 61, 1 March 2007, and Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003). The applicant, who was represented by a lawyerthroughout the criminal proceedings against him, did not furnish any explanation for his lawyer’s failure to lodge, or advise the applicant to lodge, a judicial appeal against the investigator’s decision (see, mutatis mutandis,RadzhabMagomedov v. Russia, no. 20933/08, § 66, 20 December 2016).

52.  The Court therefore finds that the applicant’s complaint of ill‑treatment by the police during the dispersal of the demonstration must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

53.  As to the remainder of the complaints under Article 3, the Court notes that the grievances about the conditions of the applicant’s detention and the conditions during the prison transfer, including those in the holding room at the Moscow City Court, 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

1.  Conditions of detention in the remand prison

54.  The applicant alleged that the poor conditions of his detention had been in violation of Article 3 of the Convention. The parties’ submissions as regards the material conditions of detention have been summarised in paragraphs 25-28 above.

55.  The main facts relevant to the assessment of the conditions of detention, in particular the size of the cells, the number of inmates detained there at the same time as the applicant, and the sanitary and hygiene arrangements were not in dispute between the parties. Nevertheless, the parties disagreed on whether those conditions had amounted to degrading treatment within the meaning of Article 3 of the Convention. The applicant maintained, in particular, that four square metres of personal space had been insufficient to avoid overcrowding in IZ-77/5, and that it had been aggravated by other factors, such as inadequate ventilation and lighting, incomplete separation of the lavatory from the living space and restrictions on outdoor exercise and showering. The Government, on the contrary, contended that the applicant’s conditions of detention had been in conformity with the applicable standards for personal space, light, room temperature, sanitary facilities and hygiene arrangements.

56.  The Court recently reiterated the general principles governing the application of Article 3 of the Convention to conditions of detention, as well as the principles concerning prison overcrowding, in Muršić v. Croatia ([GC], no. 7334/13, §§ 96-141, ECHR 2016). In particular, the Court confirmed that the requirement of three square metres of floor space per detainee in multi-occupancy accommodation should be maintained as the relevant minimum standard for its assessment under Article 3 of the Convention (ibid.,§§ 110 and 114).

57.  In the present case, the Court observes that during the whole period of his detention the applicant was held in cells that allowed him four square metres of personal space, which complies with the minimum standard. The applicant was always provided with an individual bed; he has not alleged that thelayout of the cells or the arrangementof fixtures such as tables, beds and toilets, impeded him from moving freely within the cell (compare Vladimir Belyayevv. Russia, no. 9967/06, § 34, 17 October 2013; and, by contrast, YevgeniyAlekseyenko v. Russia, no. 41833/04, § 87, 27 January 2011; and Manulin v. Russia, no. 26676/06, § 46, 11 April 2013).

58.  As regards other aspects of the physical conditions of detention in the remand prison, the Court notes that the applicant was allowed onehourof outdoor exercise per day. Also, each cell where the applicant was detained had unobstructed access to natural light. The windows were not fitted with metal shutters or other devices preventing natural light from entering the cell. Even iftwo windows were located high up, that arrangement could not significantly reduce the provision of natural light to the cell (compareVlasov v. Russia, no. 78146/01, § 82, 12 June 2008). The cells were additionally equipped with artificial lighting, heating and ventilation. The lavatories in the cells were separated from the living space, although the partition did not reach the ceiling.It must be noted that the frequency of showers limited to once per week has been considered by the Court as manifestly insufficient for maintaining proper bodily hygiene (see Ananyev and Others, cited above, § 158, 10 January 2012 with further references). However, the applicant did not complain about the other practical arrangements for showering, such as a limited number of functioning showerheads or a lack of privacy due to the fact that inmates were taken to shower halls in groups (ibid.). The Court has also taken note of the photographs showing the interior of the remand prison cells and their sanitary facilities, which do not appear to be in an especially bad state of repair or cleanliness.

59.  It may be that some aspects of the conditions of the applicant’s detention fell short of the Minimum Standard Rules for the Treatment of Prisoners, the European Prison Rules and the recommendations of the Committee for the Prevention of Torture. Those include, in particular, the restrictions on hot showers andon out-of-cell activities. Nevertheless, taking into account the cumulative effect of those conditions, the Court does not consider that the conditions of the applicant’s detention, although far from adequate, reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention (see, for similar reasoning, YaroslavBelousov,cited above, § 98; Fetisov and Others v.  Russia, nos. 43710/07 and 3 others, §§ 137-38, 17 January 2012; and compare Vladimir Belyayev, cited above, § 36).

60.  The Court therefore concludes that there has been no violation of Article 3 of the Convention in respect of the conditions of detention in the remand prison.

2.  Conditions of transfer to and from court

61.  The applicant alleged that his transfers from the remand prisons to court and back had amounted to inhuman and degrading treatment. He complained about the frequency and length of the transfers, of appalling conditions in the court holding room and the police vans, and of the intensity of the schedule, which had not left him sufficient time to sleep. He argued that the combination of the above factors had led to physical exhaustion and mental distress.

62.  The Government submitted that the applicant had been transferred seventy-nine times from the remand prison to the court-house and back during the hearing of his criminal case. The applicant did not contest the number of transfers.

63.  The Court examined the conditions of transfer to and from court, which were common to the applicant and his co-defendant, in the case of YaroslavBelousov (cited above, §§ 103-11). It found that they amounted to inhuman and degrading treatment that was contrary to Article 3 of the Convention on account of a lack of sufficient rest and sleep on the days of court hearings; overcrowding and generally poor conditions in the holding cells at the Moscow City Court; lengthy transfers between the remand prisons and the court, and poor conditions during the transfers. The Court sees no reason to depart from those findings in the present case. Accordingly, there has been a violation of Article 3 of the Convention in that respect.

IV.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF CONFINEMENT IN GLASS CABINS AND METAL CAGES DURING COURT HEARINGS

64.  The applicant complained that his confinement in glass cabins and metal cages during the court hearing had amounted to inhuman and degrading treatment. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Admissibility

65.  The Government submitted that the applicant’s complaints under Article 3 of the Convention had been lodged out of time. They repeated thesubmissions they had made in YaroslavBelousov (cited above, § 113) in that regard.

66.  The Court observes that the alleged ill-treatment took place during the first-instance hearing, which finished on 21 February 2014, and that the applicant did not submit that it had continued during the appeal hearing. It reiterates that the applicant’s confinement in glass cabins and in metal cages occurred in two distinct periods with materially different conditions of detention, which cannot be regarded as a continuous situation for the purposes of calculating the six-month time-limit set forth in Article 35 § 1 of the Convention (ibid.,§ 114). Furthermore, the Court has previously accepted that no remedy was available to applicants in relation to courtroom arrangements and that the six-month time-limit should be calculated from the date the alleged ill-treatment ceased (see Svinarenko and Slyadnevv. Russia [GC], nos. 32541/08 and 43441/08, § 87, ECHR 2014 (extracts)).

67.  As regards the alleged ill-treatment by placement in glass cabins, the Court notes that it began on 6 June 2013 and ended on an unspecified date in the middle of September 2013, when the proceedings moved to the Nikulinskiy District Court of Moscow (see paragraph 31 above). The applicant lodged his complaint about his placement in glass cabins on 18 September 2013, shortly after the proceedings had moved to a courtroom equipped with metal cages. The alleged ill-treatment owing to confinement in metal cages ceased on 21 February 2014, but the complaint about that treatment was not lodged until 2 September 2014.

68.  The Court therefore considers that the applicant has missed the time‑limit for lodging the complaint under Article 3 of the Convention about his placement in metal cages. It must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Grishin v. Russia, no. 30983/02, § 83, 15 November 2007).

69.  By contrast, the Court finds that the applicant has complied with the six-month rule as regards the complaint about being placed in glass cabins. It notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

70.  The Court summarised the principles on confinement in glass cabins in YaroslavBelousov (cited above, §§ 120-22). It examined the conditions of detention in hearing rooms nos. 338 and 635 at the Moscow City Court, which were common to the applicant and his co‑defendants, including Mr Belousov (ibid., §§ 123-28), and found a violation in respect of issues identical to those in the present case. 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 in the present case. Accordingly, there has been a violation of Article 3 of the Convention on account of the conditions of detention in hearing room no. 338 at the Moscow City Court, but no violation of Article 3 as regards the conditions of detention in hearing room no. 635.

V.  ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

71.  The applicant complained under Article 5 § 1 of the Convention that his pre-trial detention had not been based on a “reasonable suspicion” that he had committed a criminal offence. He also complained that his pre-trial detention had not been justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention. Article 5 of the Convention, in so far as relevant, reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law …

…

(c)  … the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so …

…

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A.  Admissibility

72.  As regards the alleged unlawfulness of the applicant’s detention, the Court notes that the court which ordered that measure was the Basmannyy District Court of Moscow and that it subsequently extended his detention on several occasions. After the case had been sent for trial, the detention order was issued by the Zamoskvoretskiy District Court of Moscow. The domestic courts acted within their powers in making those decisions and there is nothing to suggest that they were invalid or unlawful under domestic law. Accordingly, the applicant’s detention was imposed and extended in accordance with a procedure prescribed by law.

73.  As regards the allegation that the applicant’s detention was not based on a reasonable suspicion that he had committed criminal offences, his complaint under Article 5 § 1 of the Convention overlaps to a large extent with his complaint under Article 5 § 3 of a failure by the authorities to adduce relevant and sufficient reasons justifying the extensions of his detention pending the outcome of the criminal proceedings. The Court reiterates that while Article 5 § 1 (c) of the Convention is mostly concerned with the existence of a lawful basis for detention within criminal proceedings, Article 5 § 3 of the Convention deals with the possible justification for such detention. Moreover, according to the Court’s established case-law under the latter provision, the persistence of a reasonable suspicion is a sine qua non for the validity of continued detention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 87, ECHR 2016 (extracts)). The Court therefore deems it more appropriate to deal with this complaint under Article 5 § 3 of the Convention (see Kovyazin and Others v. Russia, nos. 13008/13 and 2 others, § 71, 17 September 2015; Taranenko v. Russia, no. 19554/05, § 46, 15 May 2014; and Khodorkovskiy v. Russia, no. 5829/04, § 165, 31 May 2011).

74.  Furthermore, the Court finds that the applicant’s complaint of a violation of Article 5 § 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this part of the application is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

75.  The parties made essentially the same submissions under Article 5 of the Convention as in Kovyazin and Others (cited above, §§ 73-74). The relevant general principles applicable in this case were summarised by the Court in that judgment (ibid., §§ 75-78).

76.  The period of detention to be taken into consideration in this case started on 9 June 2012, the date of the applicant’s arrest, and ended on 21 February 2014, when he was convicted. Accordingly, the period in question is one year and eight months. The Court also notes that the criminal trial in the applicant’s case began on 18 June 2013, which is one year after his arrest. Having regard to the considerable length of detention in the light of the presumption in favour of release, the Court finds that the Russian authorities were required to put forward very weighty reasons for maintaining that measure against the applicant.

77.  It can be seen from the applicant’s detention orders and the Government’s observations that the primary reason for his detention was the gravity of the charges. The domestic courts considered that the applicant, faced with the risk of prison, was likely to abscond, influence witnesses, or interfere with the administration of justice. In addition, they relied on the fact that the applicant’s father was living in Ukraineas a reason to believe that the applicant might flee to avoid the investigation and trial.

78.  The Court reiterates that the danger of an accused absconding must be assessed with reference to a number of factors. Those include, in particular, the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts (see Smirnova v. Russia,nos. 46133/99 and 48183/99, § 60, ECHR 2003‑IX (extracts)). It was not disputed that the applicant had a permanent residence in Moscow Region and was studying at the university. The authorities did not indicate any circumstance,other than his father’s residing in Ukraine, to suggest that, if released, the applicant would abscond. In the Court’s view, this fact in itself cannot speak in favour of a danger of absconding, given that the applicant had strong links with the country in which he was prosecuted. Moreover, the risk of flight necessarily decreases with the passage of time spent in detention (see Melnikova v. Russia, no. 24552/02, § 82, 21 June 2007). By the time the case was submitted to the court,the risk had waned owing to the probability that the length of detention would be deducted from (or would count towards) the term of imprisonment which the applicant could expect if convicted (see Shteyn (Stein) v. Russia, no. 23691/06, § 112, 18 June 2009). Lastly, the courts gave no valid reasons for dismissing the applicant’s requests for an alternative preventive measure to be applied.

79.  The Court has previously examined similar complaints lodged by the applicant’s co-defendants and found a violation of their rights set out in Article 5 § 3 of the Convention (see Kovyazin and Others, cited above, §§ 82-94, and YaroslavBelousov, cited above, §§ 133-38). The Court noted, in particular, the domestic courts’ reliance on the gravity of the charges as the main factor for the assessment of the potential to abscond, reoffend or obstruct the course of justice, and their reluctance to pay proper attention to a discussion of each applicant’s personal situation or to have proper regard to factors in favour of release. It also noted the use of collective detention orders, without a case-by-case assessment of the grounds for detention in respect of each co-defendant and a failure to thoroughly examine the possibility of applying a less rigid measure of restraint, such as bail.

80.  Having regard to the material in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Indeed, the specific offences imputed to the applicant –using metal barriers to block the police’s movement and throwing stones and pieces of tarmac (classified as a grave offence) along with snatching a helmet from a police officer’s hands (classified as a medium-gravity offence) – may have initially warranted his pre-trial detention. However, with the passage of time the nature and the seriousness of the offence as grounds for the applicant’s continued detention inevitably became less and less relevant (see Kovyazin and Others, cited above, § 85, and Artemovv. Russia, no. 14945/03, § 75, 3 April 2014). Moreover, the applicant’s detention was extended by the same collective orders as those of his co-defendants, without any individual assessment of his situation (ibid., §§ 92-93).

81.  There has accordingly been a violation of Article 5 § 3 of the Convention.

VI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

82.  The applicant submitted a number of complaints under Article 6 of the Convention, referring to various aspects of his trial. He referred to his confinement in glass cabins during the court hearings, and the intensive schedule of the hearings, and alleged that he had not had adequate time and facilities for the preparation of his defence. He further submitted that he had not been able effectively to defend himself owing to a lack of opportunity to consult his legal counsel in confidence during the trial. The applicant relied on Article 6 §§ 1 and 3 (b) and (c) of the Convention, which, in so far as relevant, reads as follows:

“1.  In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing …

…

3.  Everyone charged with a criminal offence has the following minimum rights …

…

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require …”

83.  The Government submitted that the applicant had failed to raise the complaints under Article 6 of the Convention before the appellate court. The applicant argued that he had exhausted domestic remedies in respect of those complaints.

84.  The Court has previously held that the appeal instance was capable of providing an effective remedy for the alleged violation of Article 6 of the Convention in the case of the applicant’s co-defendant (see YaroslavBelousov, cited above, § 141). It notes that the applicant did not include those complaints in his points of appeal when seeking to have the first‑instance judgment reversed. Accordingly, he did not provide the domestic courts with the opportunity of addressing the particular Convention violation alleged against the State. These complaints must therefore be declared inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention.

VII.  ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF THE CONVENTION

85.  The applicant alleged that there had been a violation of his rights to freedom of expression and to freedom of peaceful assembly. He complained, in particular, that disruptive security measures had been implemented at the site of the meeting at Bolotnaya Square. He further argued that his ensuing prosecution and criminal conviction for participation in acts of mass disorder had been arbitrary and disproportionate. The applicant relied on Articles 10 and 11 of the Convention, which read as follows:

Article 10

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 11

“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.”

A.  Admissibility

86.  The Government alleged that the applicant had not brought any complaints before the domestic courts about the general actions of the police to safeguard public order during the assembly. They therefore asked the Court to declare this part of the application inadmissible on the grounds of a failure to exhaust domestic remedies or to comply with the six-month time-limit.

87.  The applicant contended that he had complied with the admissibility criteria for this complaint.

88.  The Court observes that the applicant was convicted of perpetrating acts of mass disorder, which were the acts that interrupted the assembly. Attribution of responsibility for those acts was therefore a central question in the determination of the applicant’scriminal charges. In those circumstances, his complaint about the authorities’ role in the occurrence of the disorder is inseparable from that concerning the lack of justification for the applicant’s criminal liability. For that reason, the Court is not required to assess the authorities’ alleged failure to discharge their positive obligation in respect of the conduct of the demonstration at Bolotnaya Square as a separate issue under Article 11 of the Convention. Moreover, as the applicant had appealed against his criminal conviction, the Court considers that he had exhausted domestic remedies in respect of his complaints under that provision and complied with the six-month time-limit in that regard.

89.  The Court notes that the complaint about the applicant’s prosecution and criminal conviction, lodged under Articles 10 and 11 of the Convention, is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

90.  The Government’s submissions on the merits of the case were identical to those in YaroslavBelousov (cited above, §§ 160-63).

91.  The applicant submitted that he was a peaceful, law-abiding individual who had not planned to take part in acts of mass disorder. On 6 May 2012 he arrived at Bolotnaya Square to take part in a peaceful meeting, which had been authorised by the Moscow authorities. He pointed out that the officially published map of the area allocated for the assembly had indicated that the meeting venue would include the park at Bolotnaya Square and that the authorities had not given notice to participants of a change in the venue’s layout. The unexpected placement of the police cordon near MalyyKamennyy Bridge had narrowed the access route to the meeting venue, which had caused confusion and overcrowding in that area. The applicant alleged that the incidences of disorderly behaviour and clashes between the protesters and the police had been caused by the unannounced change of plan. Another reason had been the authorities’ refusal to redeploy police officers so as to put an end to the bottleneck and allay the panic among the protesters.

2.  The Court’s assessment

(a)  The scope of the applicant’s complaints

92.  The Court notes that in the circumstances of the case Article 10 of the Convention is to be regarded as a lexgeneralis in relation to Article 11 of the Convention, a lexspecialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202, and Kasparov and Others v. Russia, no. 21613/07, §§ 82‑83, 3 October 2013). Accordingly, the Court will examine this complaint under Article 11 of the Convention.

93.  On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 of the Convention must, in the present case, also be considered in the light of Article 10 of the Convention. The protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (see Ezelin, cited above, § 37).

(b)  Whether there has been an interference with the exercise of the right to freedom of peaceful assembly

94.  The Court has previously held that the assembly at Bolotnaya Square on 6 May 2012 fell within the scope of Article 11 of the Convention (see Frumkin, cited above, §§ 99 and 137, and YaroslavBelousov, cited above, §§ 168-71). As regards the applicant personally, it does not transpire from the description of his offences that he was among those responsible for the initial acts of aggression which contributed to the deterioration of the assembly’s initial peaceful character. Accordingly, he enjoyed the protection of Article 11 of the Convention. The Court also finds that the applicant’s prosecution and criminal conviction for acts he committed in the course of the dispersal of the demonstration constituted an interference with the exercise of the freedom of assembly.

(c)  Whether the interference was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society”

95.  The parties made essentially the same submissions on the lawfulness of the interference as in YaroslavBelousov(cited above, § 173). The Court sees no reason to reach a different conclusion in this case (ibid., §§ 174-75). It finds that the applicant’s pre-trial detention and prosecution were lawful, and pursued the legitimate aims of preventing disorder and crime and protecting the rights and freedoms of others.

96.  As to whether the applicant’s criminal conviction was “necessary in a democratic society”, the Court notes that he was found guilty of two criminal offences, namely participation in acts of mass disorder (Article 212 of the Criminal Code) and committing violent acts against a police officer (Article 318 of the Criminal Code). He was sentenced to three years and six months’ imprisonment under those provisions for attending an authorised public event, using metal barriers to block the police’s movement, throwing pieces of tarmac at the police, punching an unidentified police officer and snatching a helmet from a police officer’s hand.

97.  The Court reiterates that when individuals are involved in acts of violence the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of assembly, and the imposition of a sanction for such reprehensible acts would be considered to be compatible with the guarantees of Article 11 of the Convention (see Gülcü v. Turkey, no. 17526/10, § 116, 19 January 2016, and the cases cited therein). In this case, the Court notes that the police officer in respect of whom the applicant was found guilty of assault only testified that the applicant had been pulling his helmet from his hands, and the same testimony was given by another police officer. The judgment did not specify what evidence corroborated its finding that the applicant had punched another police officer, who remained unidentified. However, even assuming that the prison sentence of one year, under Article 318 of the Criminal Code for using violence against a public official, was justified, it is noteworthy that it was more lenient than the partly concurrent three-year prison sentence for participation in acts of mass disorderunder Article 212 of the Code.

98.  The acts of mass disorder which gave rise to the applicant’s three‑year prison sentence under Article 212 of the Code consisted of using metal barriers to block the police’s movement and throwing pieces of tarmac at police officers. In so far as the applicant was found guilty of having thrown pieces of tarmac, it is normal that such conduct would be punishable; however, the sanction for those acts should be proportionate and, in particular, should reflect the actual damage caused by the acts. In this case, there was nothing to suggest that the applicant had hit anyone with those pieces of tarmac. As regards obstructing the police with metal barriers, the Court observes that there were no witnesses to the applicant handling the barriers, andthat he denied his involvement in that. It can be discerned from the applicant’s submissions that other protestors could have used the barriers to protect themselves from the use of force by the police. However, the domestic courts did not examine to what extent the barriers could have been used, by the applicant or anyone else, to stay out of the scuffle.

99.  Moreover, in assessing the mass disorder case,the domestic courts did not examine the applicant’s allegation that the police had contributed to the onset of violence and had used excessive force. According to the photographs submitted by the applicant, he had multiple injuries resembling traces of truncheonblows on his back. The allegation of beating was also supported by the results of the applicant’s examination at the hospital (see paragraph 10 above). In such circumstances it was indispensable for the proper administration of justice that the trial court assessed the applicant’s allegations of ill-treatment in the context of determining the criminal charges against him (see, mutatismutandis, Annenkov and Others v. Russia, no. 31475/10, § 98, 25 July 2017, and Stepanov v. Russia, no. 33872/05, § 49, 25 September 2012).However, the domestic courts dismissed his arguments about use of force by the police, merely referring to the previous refusal to open a criminal case in relation to the conduct of the police.Even though the applicant’s trial was not an appropriate avenue to establish the accountability of individual police officers, the facts and allegations relating to the authorities’ role in the onset of clashes and the extent of the use of force by the police were directly relevant to the determination of the charges of mass disorderlevelled against the applicant. It was therefore incumbent on the court to evaluate those elements as part of its assessment of the applicant’s guilt.

100.  In assessing the severity of the sanction for participation in mass disorder the Court considers it important that the criminal file did not disclose any pre-existing intention by the applicant to participate in violent acts, and no such intention was established by the trial court. As far as can be discerned from the indictment and the judgment, the applicant was not among those responsible for the initial acts of aggression which contributed to the deterioration of the assembly’s initial peaceful character (an element considered relevant inYaroslavBelousov, cited above, § 179). At the height of the clashes, the applicant threw pieces of tarmac, and his confrontation with the police took place when they were already arresting protesters. While the applicant’s overall conduct degenerated from peaceful to violent, it was sporadic in nature and appeared to be a spontaneous reaction to the force used by the police against the protestors, the majority of whom were peaceful. It therefore did not attain the degree of aggression which the Court has found in other cases to amount to violence calling for lengthy prison terms (see, by contrast, Primov and Others v. Russia, no. 17391/06, §§ 156‑63, 12 June 2014, and Osmani and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001).

101.  Given the applicant’s minor role in the assembly and the fact that he had an incidental involvement in the clashes, the Court does not consider that the risks referred to by the Government – potential civil unrest, political instability and a threat to public order – had any personal relation to him. While the Court does not endorse the applicant’s violent behaviour and reiterates that the State authorities enjoy a wider margin of appreciation in sanctioning such actions (see Gülcü, cited above, § 116, and Taranenko, cited above, §§ 81-97), it considers that the reasons advanced by the Government could not justify a three‑year prison sentence for participation in mass disorder under Article 212 of the Criminal Code. The Court considers that there was no “pressing social need” to give the applicant a sentence of that duration, in addition to sentencing him for assault on a police officer.

102.  It must be stressed, moreover, that the applicant’s criminal conviction, and especially the severity of his sentence, must have had the effect of discouraging him and other opposition supporters, and the public at large, from attending demonstrations and, more generally, from participating in open political debate. The chilling effect of the sanction imposed on him was further amplified by the large-scale proceedings in the case, which attracted widespread media coverage.

103.  In view of the severity of the sanction imposed on the applicant, the Court concludes that his criminal conviction was a measure that was disproportionate to the legitimate aims of preventing disorder and crime and protecting the rights and freedoms of others, and that it was therefore not necessary in a democratic society.

104.  There has accordingly been a violation of Article 11 of the Convention.

VIII.  ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

105.  The applicant complained under Article 18 of the Convention that the criminal proceedings against him had pursued the aim of undermining his right to freedom of assembly. The Court considers that this complaint falls to be examined under Article 18 in conjunction with Article 11 of the Convention. Article 18 of the Convention reads as follows:

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

106.  In their submissions under this head the parties reiterated their arguments as regards the alleged interference with the right to freedom of assembly.

107.  The Court notes that this complaint is linked to the complaints examined above under Article 11 of the Convention and must therefore likewise be declared admissible. Having regard to its findings in paragraphs 96-103, the Court considers that the complaint under Article 18 in conjunction with Article 11 of the Convention raises no separate issue and it is not necessary to examine whether, in this case, there has been a violation of that provision.

IX.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

108.  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

109.  The applicant claimed 1,100,000 euros (EUR) in respect of non‑pecuniary damage.

110.  The Government contested the claim as excessive.

111.  The Court observes that it has found violations of Articles 3, 5 and 11 of the Convention in respect of the applicant. In those circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it awards the applicant EUR 12,500 in respect of non‑pecuniary damage.

112.  Furthermore, the Court observes that although the applicant has already been released after serving his sentence, he might still face negative consequences resulting from his disproportionately severe criminal conviction. The obligation to comply with the present judgment would thus require the adoption of other measures in addition to the payment of the just satisfaction awarded by the Court, which is only designed to make reparation for such consequences of a violation that cannot otherwise be remedied (see SavriddinDzhurayev v. Russia, no. 71386/10, § 252, ECHR 2013 (extracts). It will be thus for the respondent State to take appropriate measures to redress the effects of any past or future damage for the applicant as a result of his disproportionate sentencing which the Court has found to be in breach of the Convention (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). In this context, the Court reiterates that while the respondent State in principle remains free to choose the means by which it will comply with this obligation, it is for the Committee of Ministers to assess whether those means are compatible with the conclusions set out in the Court’s judgment and consistent with the approach adopted by the Convention organs in similar cases (see, for example, Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004‑I, and the Resolution of the Committee of Ministers ResDH(2010)63 of 3 June 2010 on the execution of the judgment  in Odabaşı and Koçak v. Turkey, no. 50959/99, 21 February 2006).

B.  Costs and expenses

113.  The applicant did not submit any claims under this head.Accordingly, there is no call to award him any sum on that account.

C.  Default interest

114.  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 jointhe applications;

2.  Dismisses the Government’s preliminary objection;

3.  Declaresthat the complaints raised under Article 3 of the Convention concerning the conditions of the applicant’s detention and transfer, and his confinement in glass cabins in the courtrooms, and under Articles 5, 10, 11 and 18 of the Convention admissible and the remainder of the applications inadmissible;

4.  Holds that there has been no violation of Article 3 of the Convention in respect of the conditions of detention in the remand prison;

5.  Holds that there has been a violation of Article 3 of the Convention in respect of the conditions in which the applicant was transferred to and from court;

6.  Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s confinement in a glass cabin in hearing room no. 338 at the Moscow City Court;

7.  Holds that there has been no violation of Article 3 of the Convention on account of the applicant’s confinement in a glass cabin in hearing room no. 635 at the Moscow City Court;

8.  Holds that there has been a violation of Article 5 § 3 of the Convention;

9.  Holds that there has been a violation of Article 11 of the Convention;

10.  Holds that there is no need to examine the complaints under Article 18 in conjunction with Article 11 of the Convention;

11.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, 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;

12.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı                                                                     Helena Jäderblom
Deputy Registrar                                                                        President

____________

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.

H.J.
F.A.

CONCURRING OPINION OF JUDGE DEDOV

I have already expressed my views about the issue of applicability of Article 11 in a situation of violence in a similar “Bolotnaya case” (see Barabanov v. Russia, nos. 4966/13 and 5550/15, 30 January 2018). I have not changed my views since. However, I voted together with the majority for another reason: the case documents do not convince me that the charges against the applicant were proved in court and that the applicant enjoyed a fair trial during criminal proceedings.

In the present case the applicant was charged by the national authorities in connection with his alleged participation in mass disorder during the March of Millions in May 2012. The criminal proceedings attracted enormous public attention. The case had, from the very outset, been highly politically sensitive at the national level. The applicant and the other co‑accused were classified as political prisoners by various opposition movements and the independent mass media.

That being the case, I was utterly disappointed by the poor quality of the verdict (the first-instance judgment). The verdict contained no reference to any material evidence capable of supporting the findings regarding the applicant’s guilt. The “witness” statements made by the police officers were vague and failed precisely to identify the applicant’s actions and other facts relating to his involvement in the clashes. The only fact of which I am certain is that the applicant was severely beaten by police officers, which fact the national court disregarded.

The present case might serve as an example of a systemic problem, that is to say the poor quality of criminal verdicts. It is not acceptable when the decision in a criminal case merely refers to a version of events without allowing the reader to understand how the court has reached its conclusions. I am convinced that the Supreme Court’s instructions regarding the content of verdicts in criminal cases (particularly on how the court should reason its conclusions) need to be implemented more scrupulously (see Resolution no. 1 of 29 April 1996, with further amendments, and Resolution no. 55 of 29 November 2016).

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