Last Updated on November 4, 2019 by LawEuro
THIRD SECTION
CASE OF BARABANOV v. RUSSIA
(Applications nos. 4966/13 and 5550/15)
JUDGMENT
STRASBOURG
30 January 2018
FINAL
02/07/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Barabanov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Helena Jäderblom, President,
Luis López Guerra,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 9 January 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 4966/13 and 5550/15) 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 Andrey Nikolayevich Barabanov (“the applicant”), on 26 December 2012 and 19 December 2014 respectively.
2. The applicant was represented by Ms S.I. Sidorkina, a lawyer practising in Moscow, and Ms I.V. Khrunova, a lawyer practising in Kazan. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the 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 acts of mass disorder. He submitted that his pre-trial detention had not been based on relevant and sufficient reasons and that there had been unacceptable delays in examining his appeals against his detention. The applicant also alleged a violation of his rights to freedom of expression and tofreedom of peaceful assembly.
4. On 10 September 2013 and 20 April 2015 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. Theapplicant was born in 1990 and lives in Moscow.
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 Yaroslav Belousovv. 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 became apparent 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 the police cordon forced the protestors to remain within the barriers;there were numerous clashes between the two sides. At 5.30 p.m. the police ordered the meeting to finish early and began to disperse the participants. It took them about two hours to clear 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 his arrest the applicant was working as an artist.According to him, on 6 May 2012 he arrived at Kaluzhskaya Square to take part in the march and walked down Yakimanka Street to Bolotnaya Square. He passed the metal detectors and joined other protestors in front of the stage, where a rock group was performing. Sometime after 6 p.m. he walked towards Malyy Kamenyy Bridge but discovered that movement in that direction had been blocked by a police cordon. The applicant walked back, staying in the general area; at around 7.30 p.m. groups of police officers started pushing into the crowd, forcing it apart by using their truncheons. Protestors were surrounded and squeezed together. At some point the applicant realised that he was facing the police line and that the police were using excessive force to arrest protestors. The applicant was both angered and scared by the actions of the police and actively resisted. He was eventually seized by four police officers and escorted to a police car, which took him to a police station.
10. On 14 May 2012 the Justice of the Peace of the 100th Court Circuit of the Yakimanka District of Moscow found the applicant guilty of non‑compliance with a lawful order by a police officer, an offence under Article 19.3 of the Code of Administrative Offences. The Justice of the Peace established that after the meeting at Bolotnaya Square the applicant had shouted anti-government slogans, ignoring the lawful demands of the police to cease those acts. He had thrown objects at the police officers, including stones, flagpoles, empty plastic bottles, and pieces of asphalt, and had refused to proceed to the police van. The applicant was sentenced to detention of twenty-four hours. It appears that after his release the applicant continued to live at his usual address and pursue his customary activities.
11. On 28 May 2012 the applicant’s flat was searched. On the same day he was detained on suspicion of participation in acts of mass disorder and of committing violent acts against the police on 6 May 2012.
12. On 30 May 2012 the Basmannyy District Court of Moscow ordered that the applicant be placed in pre-trial detention until 6 July 2012. It referred to the gravity of the charges and stated that if he was at liberty the applicant could co-ordinate his position with accomplices whose identities were still being established by the investigation. The court also pointed out that the applicant had forcefully resisted the police officers during his arrest, which had led to them using force and handcuffs against him. In addition, the court relied on information obtained from undercover sources that the applicant had connections with football fans and groups of anarchists. The applicant denied thatallegation and challenged the use of information from undisclosed sources. However, the court concluded that there were sufficient reasons to believe that he was likely to abscond, continue his criminal activity, threaten witnesses, destroy evidence or otherwise obstruct the course of the criminal proceedings. It dismissed a request from the applicant for an alternative preventive measure and found that his release was not required on health grounds.
13. On 4 June 2012 the applicant lodged an appeal against the detention order, which was dismissed by the Moscow City Court on 27 June 2012.
14. On 5 June 2012 charges were brought against the applicant under two Articles of the Criminal Code, Articles 212 § 2 (participation in acts of mass disorder accompanied by violence) and 318 § 1 (use of violence against a public official). He was accused, in particular, of active resistance to police officers and of participation in a group assault on a police officer whereby the applicant had allegedly pulled a protective helmet off the officer’s head and had punched and kicked him on the head and body.
15. On 4 July 2012 the Basmannyy District Court examined an application from the investigator for an extension of the applicant’s pre-trial detention. The applicant argued that he had no criminal record, was in work, and had a permanent residence in Moscow where he lived with his family. He denied any involvement with football fans or anarchists and asked for the preventive measure to be changed to house arrest. On the same day the District Court granted the investigator’s application and extended the applicant’s detention until 6 November 2012. It relied on the gravity of the charges and information on the applicant’s character, which gave it sufficient grounds to presume that he might reoffend, threaten witnesses and other participants of the criminal proceedings, destroy evidence or otherwise obstruct the proper administration of justice.
16. On 12 July 2012 the applicant lodged an appeal against the extension order, which was dismissed by the Moscow City Court on 6 August 2012.
17. On 31 October 2012 the Basmannyy District Court examined a new application for an extension of the applicant’s pre-trial detention. Referring to the gravity of the charges and the complexity of the criminal investigation, the court extended his detention until 6 March 2013.
18. On 13 November 2012 the applicant lodged an appeal against the extension order, which was dismissed on 3 December 2012 by the Moscow City Court.
19. On 16 November 2012 the charges against the applicant were updated. The classification of the offences remained unchanged but it was specified that the applicant had struck the police officer once on the head and had kicked him once on the body while he was lying on the ground.
20. On 1 March 2013 the Basmannyy District Court authorised a further extension of the applicant’s detention until 28 May 2013. The court relied on the gravity of the charges and the need to allow the defendants sufficient time to read the investigation case file. That decision was upheld by the Moscow City Court on 10 April 2013.
21. On 23 April 2013 the Moscow City Court grantedan extension of the applicant’s 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. The Moscow City Court upheld that decision on 30 May 2013.
22. On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges.
23. 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.
24. On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant.It ordered their detention until 24 February 2014 on the grounds of the 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 in the courtroom
25. On 6 June 2013 court proceedings began 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 at the Nikulinskiy District Court of Moscow in hearing room no. 303, while in January and February 2014 they took place at the Zamoskvoretskiy District Court in hearing room no. 410. Those hearing rooms were equipped with metal cages in which nine defendants (sevenfrom 19 December 2013), including the applicant, sat during the hearings.
26. For a detailed description of the conditions in those hearing rooms see Yaroslav Belousov (cited above, §§ 74-77).
D. The applicant’s trial
27. On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing ina criminal case against ten participants in the demonstration at Bolotnaya Square,who were charged with participation in acts of mass disorder and committing acts of violence against police officers. On 18 June 2013 the court began the trial on the merits.
28. On an unidentified date Police Officer K., the alleged victim of the applicant’s assault, was examined as a witness. He testified that he had been carrying out an order to split the crowd up when someone had pulled at his bullet-proof vest. He had fallen to the ground; someone had hit him several times and had taken off his anti-riot helmet. Other police officers had picked him up to take away him from the crowd. As a result of his fall and the blows, he had sustained injuries. Another police officer, V.K., testified that the applicant had kicked an unidentified police officer.
29. Three other officers, also examined as witnesses, stated that the applicant had resisted arrest by planting his feet firmly on the ground and attempting to escape. He had also uttered obscenities to the police officers and shouted at them.
30. On 21 February 2014 the Zamoskvoretsky 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 chunks 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] …
Thus, [the applicant] used violence against Police Officer [K.] which did not endanger his life or health …
…between 5.10 p.m. and 8.20 p.m. … unidentified participants of acts of mass disorder … intentionally seized [K.] by his uniform and knocked him down, while [the applicant] together with other unidentified participants of acts of mass disorder, acting intentionally … tore off [K.’s] anti-riot helmet … and punched and kicked him several times on his head and body, meanwhile [the applicant] punched [K.’s] head at least once and at least once kicked [K.] on the body when the latter was lying on the ground. …
[The applicant] … pleaded not guilty and testified that … he wanted to see why the meeting was not starting and went to Malyy Kamennyy Bridge where he saw the cordon … Around 7.30 p.m. [the applicant] saw how police officers … started beating people with truncheons. … Then a jam occurred … At some point [the applicant] found himself in the first line and saw the police officers harshly arresting and beating people, who tried to evade the blows. He was hit several times on the shoulder and the head, which led to dizziness. He was scared, he felt that his life was in danger, and while in a state of fury he moved towards a police officer, who happened to be [K.] and then moved his leg towards the police officer, who was getting up. [The applicant] did not see who knocked the latter down… [He] did not know whether his hand reached the targetbut supposed that he was able to touch the bullet-proof vest. He definitely did not touch [K.] with his leg and he caused him no harm. A few minutes later he was taken out of the crowd and beaten, his T-shirt was torn, then … four police officers seized him and dragged him along the tarmac to the police vehicle. [The applicant] insists that he caused no injuries to the police officer and that his actions, provoked by panic, were taken in response to the events occurring around him. …
…the court considers the [defendants’] arguments that they were protecting somebody from the police officers or happened to be victims of the police’s use of force as farfetched and aimed at the mitigation of their responsibility …
… no medical document which could prove the presence of injuries on the [applicant’s] body… was provided to the court.”
31. The applicant was sentenced to three years and seven 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 oneyear and eightmonths under Article 318 § 1 of the Criminal Code. The applicant’s pre-trial detention counted towards the prison sentence.
32. The applicant appealed against the judgment. He contested the classification of the crimes under both Article 212 and Article 318 of the Criminal Code. He insisted that he had been a victim of unlawful police action and that his involvement in using violence against the police officer has not been proven.
33. On 20 June 2014 the Moscow City Court upheld the first-instance judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
34. The Criminal Code of the Russian Federation provides as follows:
Article 212 Mass disorder
“1. The organisation of mass disorder, accompanied by violence, riot, 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 the acts 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 …”
35. For a summary of the relevant domestic law provisions governing pre-trial detention and for the practice of the domestic courts in such matters see the case of Zherebin v. Russia (no. 51445/09, §§ 16-25, 24 March 2016).
THE LAW
I. JOINDER OF THE APPLICATIONS
36. 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. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
37. The applicant complained that his confinement in glass cabins and metal cages during the first-instance and appeal hearings 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.”
38. The Government submitted that the applicant’s complaints under Article 3 of the Convention had been lodged out of time. They repeated their submissions made in Yaroslav Belousovv. Russia(nos. 2653/13 and 60980/14, § 113, 4 October 2016) in that regard.
39. The Court reiterates its findings that the confinement of an applicant in glass cabins and metal cages concernedtwo distinct periods for the purposes of Article 35 § 1 of the Convention. It also notes that appeal courts were not capable of providing redress against courtroom arrangements during first‑instance trials. The six-month time-limit should therefore be calculated from the date when the alleged ill-treatment ceased (ibid.,§ 114).
40. As regards the first-instance trial, the Court notes that the alleged ill‑treatment by placement in glass cabins began on 6 June 2013 and endedon an unidentified date in September 2013 when the proceedings moved to the Nikulinskiy District Court of Moscow (see paragraph 25 above). The confinement in metal cages ceased on 21 February 2014 when the judgment was delivered. The applicant lodged his complaint on 19 December 2014, which is more than six months after the alleged ill-treatment on both occasions during the first-instance trial ceased. This complaint 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).
41. The Court further observes that the appeal hearing was held on 20 June 2014, while the applicant complained about the alleged ill-treatment on 19 December 2014. He has therefore complied with the six-month rule. Nonetheless, the applicant has not specified whether he was held in a glass cabin or a metal cage during the appeal hearing. Likewise he did not describe, even in a summary manner, thearrangements in it, such as the dimensions of the cabin or cage, the amount of space afforded to each defendant in it, or whether there was any ventilation or possibility to consult counsel. In those circumstances, the Court is not in a position to rule on the applicant’s complaint about alleged ill-treatment on account of the courtroom arrangementsduring the appeal hearing (see, mutatis mutandis, Topal v. the Republic of Moldova (dec.), no. 37509/05, §§ 37-38, 18 March 2014). It follows that this complaint is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5§§ 1 AND 3 OF THE CONVENTION
42. 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
43. 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 it on several occasions. One extension order was also issued by the Moscow City Court. 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.
44. 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 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).
45. Furthermore, the Court finds that the applicant’s complaint of a violation of Article 5 § 3 is not manifestly ill-founded within the meaning ofArticle 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
46. 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).
47. The period of detention to be taken into consideration in this case started on 28 May 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 nine months. 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.
48. 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, the domestic courts relied on the fact that the applicant had forcefully resisted arrest on 6 May 2012 and on the allegation from undisclosed sources that he had connections among football fans and groups of anarchists. The courts considered that those factors showed there was a risk of the applicant reoffending and obstructing the course of the criminal proceedings (see paragraph15 above).
49. The Court notes that the applicant denied any connections with football fans, anarchists, or other groups, but the courts made no attempt to verify the contested facts. Moreover, they relied on intelligence material without assessing the need for its disclosure, thus depriving the applicant of a possibility to challenge the allegations. In any event, the risk of the applicant conspiring with others or influencing witnesses diminished with the passage of time. In addition, the courts did not refer to any concrete facts underlying the fear of him absconding or perverting the course of justice, and those risks were assessed in an abstract and hypothetical way. Finally, the courts gave no valid reasons for dismissing the applicant’s requests for an alternative preventive measure.
50. 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 Yaroslav Belousov, 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 pointing 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.
51. 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 offence imputed to the applicant – hitting the police officer on the head and body, causing no lasting harm (classified as a serious offence) – may have initially warranted his pre-trial detention. However, with the passage of time the nature and the seriousness of the offence as the ground for the applicant’s continued detention inevitably became less and less relevant (see Kovyazin and Others, cited above, § 85, and Artemov v. Russia, no. 14945/03, § 75, 3 April 2014). The Court further notes that 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).
52. There has accordingly been a violation of Article 5 § 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
53. The applicant complained under Article 5 § 4 of the Conventionof delays in the judicial examination of his appeals against the detention order of 30 May 2012 and the extension orders of 4 July and 31 October 2012. Article 5 § 4 provides as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. Admissibility
54. The Court 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
55. The parties disputed two periods when appeal proceedings were pending against the extension orders of 4 July and 31 October 2012. The applicant submitted that appealshad been lodged on 9 July and 5 November 2012. However, according to the court stamps the appeals arrived on 12 July and 13 November 2012 respectively. The Court therefore takes those dates as the starting points to calculate the length of the appeal proceedings.
56. The Government submitted that the duration of the appeal proceedings had been compatible with the “speediness” requirement of Article 5 § 4 of the Convention, an assessment contested by the applicant.
57. The relevant general principles applicable in this case were summarised by the Court in Kovyazin and Others (cited above, § 98).
58. Turning to the circumstances of the present case, the Court observes that the appeal against the detention order of 30 May 2012 was lodged on 4 June and was examined on 27 June 2012. The appeal against the extension order of 4 July was lodged on 12 July and was examined on 6 August 2012. The appeal against the extension order of 31 October was lodged on 13 November and was examined on 3 December 2012. Accordingly, the appeal proceedings lasted twenty-three, twenty-five and twenty days. There is nothing to suggest that the applicant caused delays in the examination of his appeals. The Court does not consider that the domestic courts acted diligently in what was an urgent matter of the right to liberty by taking so long to schedule the hearing. It finds that those periods cannot be considered as being compatible with the “speediness” requirement of Article 5 § 4, especially taking into account the fact that the entire duration was attributable to the authorities (see, for example, Kuptsov and Kuptsova v. Russia, no. 6110/03, § 107, 3 March 2011, where review proceedings which lasted thirty-three and twenty-five days were not “speedy”,and Butusov v. Russia, no. 7923/04, §§ 32-35, 22 December 2009, where the Court considered that a delay of twenty daysin examining an appeal against a detention order was excessive).
59. There has therefore been a violation of Article 5 § 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLES10 AND 11 OF THE CONVENTION
60. 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
61. The Government alleged that the applicant had not brought any complaintsbefore the domestic courtsabout 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.
62. The applicant contended that he had dispatched the application within six months of his conviction becoming final. He had therefore complied with the admissibility criteria for this complaint.
63. The Court observes that the applicant in the present case was convicted of perpetrating acts of mass disorder, which were the acts which interrupted the assembly. Attribution of responsibility for those acts was therefore a central question in the determination of the applicant’s criminal 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 his 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 assembly at Bolotnaya Square as a separate issue under Article 11 of the Convention. It will examine whether the measures taken against the applicant personally complied with that provision in the light of all the material submitted by the parties concerning the planning, conduct and dispersal of the assembly (seeYaroslav Belousov, cited above, § 158,and Frumkinv. Russia, no. 74568/12, §§ 100-01 and 134, 5 January 2016, where a separate issue was distinguished in relation to a protester not accused of participation in acts of mass disorder). There is therefore no need to examine whether the applicant has complied with the admissibility criteria as regards the complaint about the general actions of the police in relation to the assembly.
64. 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
65. The Government’s submissions on the merits of the case were identical to those in Yaroslav Belousov (cited above, §§ 160-63).
66. The applicant submitted that he had not been able to leave the venue of the public event owing to a stampede. He insisted that he had behaved peacefully during the demonstration and the march; he had not intended to use force until he had clashed with the police, who had been acting in an overtly harsh manner. Moreover, the national courts had never analysed how the police had acted in intervening in a legitimate rally and dispersing the crowd. The courts had also not assessed to what extent the police had acted culpably in their clashes with the participants at the public event.
2. The Court’s assessment
(a) The scope of the applicant’s complaints
67. The Court notes that in the circumstances of the case, Article 10 of the Convention is to be regarded as a lex generalis in relation to Article 11, a lex specialis (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.
68. 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
69. 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 Yaroslav Belousov, 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 participation in mass disorder 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”
70. The parties made essentially the same submissions on the lawfulness of the interference as in Yaroslav Belousov (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 the protection of the rights and freedoms of others.
71. 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 apolice officer (Article 318 of the Criminal Code). He was sentenced to three years and seven months’ imprisonment under those provisions for hitting a police officer, once on the head and once on the body,which did not endanger the latter’s life or health, while participating in an authorised public assembly.
72. 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). However, it is noteworthy that the sentence of one year and eight months’ imprisonment under Article 318 of the Criminal Code for using violence against a public official, namely hitting him, although severe, was more lenient than the partly concurrent three-year prison sentence for participation in acts of mass disorder.
73. The main justification advanced by the Government for such a harsh sentence was the serious risk of civil unrest at the time, in particular the threat to political stability and public order. The gravity of the punishment was thus attributable to the general context of the applicant’s assault on the policeman, not to the harm he had thus inflicted. Regard being had to the other conduct imputed to the applicant, it transpires that his staying at the site of the rally accounted for an additional oneyear and eleven monthsto his prison term. The Court notes that the domestic courts have not specified the applicant’s actsattributable to participation in themass disorder under Article 212 of the Criminal Code, as opposed to the assault on the policeman under Article 318 of the Code. In describing his participation in the mass disorder, they merelyreferred to his use of violence against a police officer,also classified as a separate criminal offence (see, by contrast, Yaroslav Belousov, cited above, § 178, where chanting anti-government slogans by the applicant constituted participation in acts of mass disorder).
74. In assessing the severity of the sanction under Article 212 of the Criminal Code the Court considers it important that the criminal file did not suggest any pre-existing intention by the applicant to participate in mass disorder. Just as in Yaroslav Belousov (cited above, § 179), there is nothing in the case file to suggest that the applicant was among those responsible for the onset of clashes between the protesters and the police. As far as can be discerned from the indictment, he hit the police officer at the height of the clashes, when the police were already arresting protesters, an act which, according to him, was in response to the indiscriminate and unnecessary use of force by the police. The domestic courts did not establish the particular circumstances in which that behaviour occurred and dismissed the applicant’s arguments about excessive use of force by the police as unfounded while leaving his allegations unrebutted. The Court concludes that the applicant was not regarded as one of the individuals responsible for the disruption of the assembly or prompting the use of force by the police. The applicant’s conduct therefore, although involving violence, was sporadic in nature and, in the light of the domestic courts’ findings,did not attain the degree of aggression which the Court has found in other cases to amount to violence calling for resolute measures, in particular the subsequent sentencing of people to 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).
75. Given the applicant’s minor role in the assembly and the fact 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 athree-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 durationin addition to sentencing him for assault on the policeman.
76. 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.
77. 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 the protection of the rights and freedoms of others, and that it was therefore not necessary in a democratic society.
78. There has accordingly been a violation of Article 11 of the Convention.
VI. ALLEGED VIOLATIONS OF ARTICLES6 AND 18 OF THE CONVENTION
79. The applicant alleged that he had not been given a fair hearing in criminal proceedings, in breach of Article 6 of the Convention. He submitted that the courts had disregarded the arguments and evidence of excessive use of force by the police and had convicted him solely on the basis of the police officers’ statements. Furthermore, the courts had classified the same acts as two separate criminal offences. The applicant further complained under Article 18 of the Convention that the security measures at the demonstration and his ensuing prosecution for criminal offences had been acts of reprisal for his expressing views critical of the authorities. Moreover, it had pursued the aim of discouraging public events led by opposition activists. Articles 6 and 18 of the Convention, in so far as relevant, provide as follows:
Article 6
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
Article 18
“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.”
80. In their submissions under this head the parties reiterated their arguments as regards the alleged interference with the right to freedom of expression and freedom of assembly.
81. The Court notes that these complaintsare linked to the complaints examined above under Article 11 of the Convention and must therefore likewise be declared admissible.
82. The Court has alreadyheld that the applicant’s criminal conviction was not necessary in a democratic society, that the domestic courts did not establish the particular circumstances leading to the onset of clashes between the protestors and the police, did not verify the applicant’s arguments about excessive use of force by the police and did not specify what the applicant’s acts were in relation to his participation in acts of mass disorder, other than those relating to the assault on the policeman (see paragraphs72-74above). It has also held that that had had the effect of preventing or discouraging him and others from participating in protest rallies and actively engaging in opposition politics (see paragraphs 75-76above).The Court has already found a violation of Article 11 of the Convention in that regard.
83. Having regard to those findings, the Court considers that it is not necessary to examine whetherthere has been a violation of Article 6 of the Convention or of Article 18 in conjunction with Article 11 of the Convention.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
84. 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
85. The applicant claimed 87,360 euros (EUR) in respect of non‑pecuniary damage.
86. The Government contested the claim as excessive.
87. The Court observes that it has found violations of Articles 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 10,000 in respect of non‑pecuniary damage.
88. 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 Savriddin Dzhurayev 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 to 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 that 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
89. The applicant also claimed EUR 300 for the costs and expenses incurred before the Court.
90. The Government contested the applicant’s claims for costs and expenses on the grounds that they were not based on a legal services agreement with his lawyer Ms Khrunova under which he would be obliged to pay the sums claimed.
91. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court observes that Ms Khrunova submittedwritten observations on the applicant’s behalf as regards the alleged violations of Articles 6, 10, 11 and 18 of the Convention and that those complaints have been declared admissible. Regard being had to the documents in its possession and the above-mentioned criteria, the Court considers it reasonable to grant the claim and to award the applicant EUR 300 in respect of costs and expenses for the proceedings before the Court.
C. Default interest
92. 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
1. Decides, unanimously, to jointhe applications;
2. Declares, unanimously, the complaints raised under Articles 5, 6, 10, 11 and 18 of the Convention admissible and the remainder of the applications inadmissible;
3. Holds, unanimously,that there has been a violation of Article 5 § 3 of the Convention;
4. Holds, unanimously,that there has been a violation of Article 5 § 4 of the Convention;
5. Holds, by six votes to one, that there has been a violation of Article 11 of the Convention;
6. Holds, unanimously,that there is no need to examine the complaints under Articles 6 and 18 of the Convention;
7. Holds
(a) by six votes to one, 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 10,000 (ten thousand 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) unanimously, 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 300 (three hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses,to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(c) unanimously, 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;
8. Dismisses, unanimously,the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 30 January 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.
DISSENTING OPINION OF JUDGE DEDOV
I regret that I cannot join the majority in finding a violation of Article 11 of the Convention. I believe that violent behaviour should not be protected by the Convention. According to the general principles, “where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings” (see Kudrevičiusand Others v. Lithuania [GC], no. 37553/05, § 150, ECHR 2015). This principle is based on the very important condition that demonstrators should not engage in acts of violence. The very fact of violence, regardless of the consequences, contradicts the spirit of peaceful assembly.
In the present case the applicant was involved in violent actions such as throwing stones, flagpoles or pieces of asphalt towards the police officers. The majority, although recognising that the applicant’s behaviour was violent, based their conclusion on the disproportionate nature of the criminal sanction, taking into account the incidental involvement of the applicant in the clashes and the absence of serious consequences for the health and life of the police officers. I personally agree that the sanction was disproportionate; however, the severity of the sanction relates mainly to the criminal policy of the State, and not to the freedom of peaceful assembly. The applicant was convicted for the violence and participation in the mass disorder, and not for participation in the demonstration itself. Although the applicant was not regarded as one of the individuals responsible for the disruption of the gathering or prompting the use of force by the police, the applicant later joined in and contributed to the mass disorder.
The proportionality of the sanction does matter if ideas are expressed without violence or force, albeit involving some degree of disturbance of public order. Recently the issue was examined by the Grand Chamber in the case of Kudrevičiusand Others, cited above. In the case of Taranenko v. Russia (no. 19554/05, §§ 82-91, 15 May 2014) the Court produced an analysis of its case-law and formulated the principle that participants in a demonstration which results in damage or other disorder, but who do not themselves commit any violent or otherwise reprehensible acts, cannot be prosecuted solely on the ground of their participation in the demonstration. In that case the applicant had joined a group who intruded into the reception area of the President’s Administration building in Moscow and occupied one of the offices in order to distribute political leaflets through the windows to passers-by. The occupation of the administration’s premises was therefore an integral part of the expression of ideas in the form of a direct action. The participants pushed aside the guard who attempted to stop them. Similarly, in one of the “Bolotnaya” cases (see Yaroslav Belousovv. Russia, nos. 2653/13 and 60980/14, 4 October 2016) the applicant threw an unidentified yellow object during clashes with the police, but causing no lasting harm to the health of a police officer. The Court did not characterise either action as violent and evaluated the proportionality of the sanction accordingly. Indeed, in the absence of violence the sanction imposed should not dissuade the person concerned from imparting information or ideas. However, the present case is completely different.
Leave a Reply