{"id":1003,"date":"2019-04-17T06:24:49","date_gmt":"2019-04-17T06:24:49","guid":{"rendered":"https:\/\/laweuro.com\/?p=1003"},"modified":"2019-11-04T11:33:54","modified_gmt":"2019-11-04T11:33:54","slug":"case-of-nikolayev-v-russia","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=1003","title":{"rendered":"CASE OF NIKOLAYEV v. RUSSIA (European Court of Human Rights)"},"content":{"rendered":"

THIRD SECTION
\nCASE OF NIKOLAYEV v. RUSSIA
\n(Application no. 61443\/13)<\/em><\/p>\n

JUDGMENT
\nSTRASBOURG
\n12 February 2019<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Nikolayev v. Russia,<\/strong><\/p>\n

The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n

Helen Keller, President,
\nPere Pastor Vilanova,
\nMar\u00eda El\u00f3segui, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n

Having deliberated in private on 22 January 2019,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application (no. 61443\/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian and Ukrainian national, Mr Eduard Anatolyevich Nikolayev (\u201cthe applicant\u201d), on 30 August 2013.<\/p>\n

2.\u00a0\u00a0The Russian Government (\u201cthe Government\u201d) 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.<\/p>\n

3.\u00a0\u00a0On 24 March 2014 notice of the complaints under Articles 3, 5, 6, 10 and 11 of the Convention and Article 2 of Protocol No. 4 to the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n

4.\u00a0\u00a0The Government did not object to the examination of the application by a Committee.<\/p>\n

THE FACTS<\/strong><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n

5.\u00a0\u00a0The applicant was born in 1971 and lives in Rostov-on-Don, Russia.<\/p>\n

6.\u00a0\u00a0In early 2012 Ms B., headmistress of School no.\u00a0118 of Rostov\u2011on\u2011Don and chairwoman of the local electoral committee, removed the applicant from his position as an electoral committee member.<\/p>\n

7.\u00a0\u00a0On 1 September 2012 festive events were taking place at School no.\u00a0118 to celebrate \u201cThe Day of Knowledge\u201d (\u0414\u0435\u043d\u044c \u0437\u043d\u0430\u043d\u0438\u0439). Around\u00a08.15\u00a0a.m. on that day the applicant staged a solo demonstration (\u043e\u0434\u0438\u043d\u043e\u0447\u043d\u044b\u0439 \u043f\u0438\u043a\u0435\u0442) in front of the school. He distributed leaflets to the parents of the pupils expressing his negative opinion about the professional and personal qualities of the headmistress, Ms. B. The leaflets read as follows:<\/p>\n

\u201cDear parents, you have entrusted your children to the staff of School no.\u00a0118, with Ms B. as its headmistress. I, Eduard Nikolayev, have reasons to believe that your child will be taught from Hottentot and Old Testament ethics. See for yourself: on 10\u00a0March 2012 I held a demonstration and was handled by the police. I was then sentenced to two days in detention by a justice of the peace, on a fabricated charge of hooliganism. This is now a widespread practice in respect of political matters in Russia. As the judicial reprisals were manifestly unlawful (since I had immunity as a member of an electoral committee), they needed to invent some justification. Such a justification was deliberately faked by Ms B., chairwoman of the local electoral committee …\u201d<\/p>\n

8.\u00a0\u00a0The school staff called police officer O., who was present at the school premises owing to enhanced security measures taken on that day.<\/p>\n

9.\u00a0\u00a0According to the applicant, within thirty minutes two additional police officers, T.\u00a0and M., had arrived. He complied with their order to show his identity documents. At some point, while the police officers were carrying out an identity check through the police database, he decided to leave. However, when the applicant saw police officer T. following him, he changed his mind and returned. Officer T. then took him in a painful armlock and handcuffed him, without giving any valid reason; the applicant was then taken to the police van.<\/p>\n

10.\u00a0\u00a0According to the Government, Ms B. had informed police officer O. that the applicant was distributing leaflets. The applicant refused to familiarise officer O. with the contents of the leaflet or to leave the school premises upon her request. At 8.30 a.m. a special group of police officers arrived. They asked the applicant to present his identity documents and to proceed to the police van for an identity check. The applicant tried to escape; the police used force and handcuffs to stop him. Then the applicant was taken to the police station.<\/p>\n

11.\u00a0\u00a0At the police station the officer on duty drew up a record of the applicant\u2019s administrative arrest for the purpose of bringing him to court. The record indicated that the applicant had been escorted to the police station at 9.55 a.m. and released at 12.20 p.m. on 1 September 2012. After that the on-duty officer compiled an administrative-offence record, according to which the applicant had used foul language at the premises of School no. 118 and disturbed passers-by in an insulting manner. Moreover, he had resisted arrest by pushing the police officers away and had tried to escape from them. The applicant was accused of minor hooliganism, an offence punishable under Article 20.1 \u00a7 2 of the Code of Administrative Offences (hereinafter, \u201cthe CAO\u201d) (see paragraph 25 below).<\/p>\n

12.\u00a0\u00a0The administrative case file contained a report by police officer M., which stated that at 8.50 a.m. on 1 September 2012 he and officer T. had arrested the applicant at the premises of School no. 118. The applicant had used foul language and had behaved inappropriately; in particular, he had disturbed passers-by. He had not reacted to their multiple requests to calm down and to cease this behaviour, had refused to present his identity documents and had tried to escape. Officer M. also recorded that the police had used physical force and handcuffs.<\/p>\n

13.\u00a0\u00a0On 1 September 2012 the administrative case was transferred to the Justice of the Peace of the Voroshilovskiy District of Rostov-on-Don.<\/p>\n

14.\u00a0\u00a0Upon his release from the police station on 1 September 2012, the applicant went to Rostov-on-Don City Emergency Hospital. At 4.25 p.m. he was examined by a doctor, who diagnosed him with a sprain to the right shoulder and bruises on both wrists. After being provided with the necessary treatment, at 5.20 p.m. the applicant was released from the hospital. The applicant stayed on sick leave in connection with these injuries from 1 until 24 September 2012.<\/p>\n

15.\u00a0\u00a0On 3 September 2012 the applicant lodged a criminal complaint with the Investigative Committee of Rostov-on-Don alleging breaches of his rights to liberty, freedom of expression and freedom of peaceful assembly by the police. It appears that the Rostov regional department of the Ministry of the Interior conducted an internal inquiry into this complaint. As a result, it was determined that police officers T. and M. had acted in accordance with the law and internal requirements and had not breached the applicant\u2019s rights.<\/p>\n

16.\u00a0\u00a0On 12 September 2012 police station no. 1 of Rostov-on-Don informed the applicant in a letter that the administrative proceedings against him had been discontinued as his actions lacked the constituent elements of the crime.<\/p>\n

17.\u00a0\u00a0In November 2012 the applicant brought civil proceedings (in accordance with Article\u00a0254 of the Code of Civil Procedure) challenging the following actions on the part of the public authorities and officials: the police order to stop the demonstration and distribution of leaflets, in breach of his right to impart information; their recourse to physical force and use of handcuffs; taking him to the police station; and his prosecution under the CAO.<\/p>\n

18.\u00a0\u00a0By a judgment of 5 April 2013 the Voroshilovskiy District Court of Rostov-on-Don dismissed his claims. The court accepted the applicant\u2019s submission that he had staged a static demonstration (\u043f\u0438\u043a\u0435\u0442\u0438\u0440\u043e\u0432\u0430\u043d\u0438\u0435), which consisted of distribution of leaflets. It considered that the applicant had attempted to escape during the identity check and had been arrested, and that the use of force and handcuffs had complied with the relevant regulations. Further, the court dismissed the applicant\u2019s allegation that the administrative proceedings against him had been discontinued, on the grounds that no formal decision had been issued. The court also relied on the statements of a representative of the regional department of the Ministry of the Interior in that regard, who had testified that the administrative-offence file against the applicant had been lost. However, the police had been reassembling the file at the time of the trial.<\/p>\n

19.\u00a0\u00a0On the basis of several testimonies, the District Court concluded as follows:<\/p>\n

\u201cIn the present case the police officers intended to put an end to the breach of public order, consisting of [showing] disrespect to society accompanied by the use of foul language in a public place [by the applicant], disturbing citizens in an insulting manner and refusing to obey an order by a public official … The police officers … acted within their powers and did not violate the applicant\u2019s rights. Nor did they cause any impediment to the exercise of any such rights …\u201d<\/p>\n

20.\u00a0\u00a0The applicant appealed against the judgment. He contended that the finding of the first-instance court had been based on the pending charge against him and the wording of Article 20.1 of the CAO, and had thus violated his right to be presumed innocent. Furthermore, in the applicant\u2019s view, the court had failed to specify the factual details concerning his showing of \u201cdisrespect to society\u201d, the content and the alleged victims of the foul language allegedly used by him, the details of his \u201cdisturbing others\u201d and \u201cthe order by a public official\u201d and the lawfulness of any such order.<\/p>\n

21.\u00a0\u00a0On 17 June 2013 the Rostov Regional Court dismissed the appeal, endorsing the reasoning of the first-instance judgment. The court pointed out that the circumstances concerning the applicant\u2019s guilt in the commission of an administrative offence should be discussed in the context of the administrative offence proceedings.<\/p>\n

II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n

22.\u00a0\u00a0For a summary of domestic law and practice concerning regulations relating to the conduct of public events, liability for breaches committed in their course and administrative escorting and arrest, see Lashmankin and Others v. Russia (nos. 57818\/09 and 14 others, \u00a7\u00a7 216-312, 7 February 2017) and Novikova and Others v. Russia (nos. 25501\/07 and 4 others, \u00a7\u00a7\u00a047-74 and 82-84, 26 April 2016).<\/p>\n

23.\u00a0\u00a0For a summary of the relevant domestic law provisions governing requirement of fairness and procedural guarantees in administrative proceedings, see Novikova and Others (cited above, \u00a7\u00a7 75-79).<\/p>\n

24.\u00a0\u00a0Article 1.5 of the CAO provides for the presumption of innocence. The official or the court dealing with the administrative offence case should establish whether the person concerned is guilty or innocent (ruling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia).<\/p>\n

25.\u00a0\u00a0Article 20.1 of the CAO defines minor hooliganism as violations of public order consisting in actions displaying a manifest disregard to society, accompanied by foul language in a public place, harassing others or by damaging property.<\/p>\n

26.\u00a0\u00a0Under the Police Act (Federal Law no. 3-FZ of 7 February 2011), the police are empowered to check an individual\u2019s identity documents where there are reasons to suspect the person of a criminal offence or if his or her name is on a wanted persons list, where there is a reason for prosecuting him or her for an administrative offence, or where there are other grounds, prescribed by federal law, for arresting the person (section 13 of the Act). The police are also empowered to take the person to the police station in order to decide whether he or she should be arrested if it cannot be done on the spot (section 13 of the Act). A police officer may use physical force to put an end to a crime or an administrative offence being committed, to escort the alleged perpetrator to the police station or other premises and to arrest him or her, and to overcome resistance to lawful acts of a police officer (section 20 of the Act). Such special means as handcuffs may be used to overcome resistance to a police officer; to arrest a person who was caught during the commission of a crime and who tried to escape; to escort to the police station and to convoy arrested persons and detainees who are subject to administrative detention, and to suppress escape attempts by persons resisting a police officer or attempts to cause harm to self and others (section 21 of the Act). If the physical force used results in damage to health, or if special means or a weapon are used, then a police officer must submit a report about the use of physical force, special means or weapon to his or her supervisor within twenty-four hours (section 19 of the Act).<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n

27.\u00a0\u00a0The applicant complained about the allegedly excessive use of force and handcuffing during his arrest by the police. He relied on Article 3 of the Convention, which reads as follows:<\/p>\n

\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n

28.\u00a0\u00a0The Government submitted that the police officers had acted in accordance with the law, and relied on the findings of the domestic courts in that respect. They argued that Article 3 of the Convention did not apply because the use of force and handcuffing by the police had entailed no bodily injuries for the applicant.<\/p>\n

29.\u00a0\u00a0The applicant maintained his complaint.<\/p>\n

A.\u00a0\u00a0Admissibility<\/strong><\/p>\n

30.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

B.\u00a0\u00a0Merits<\/strong><\/p>\n

31.\u00a0\u00a0The Court notes at the outset that the applicant was diagnosed with a sprain of the right shoulder and bruises on both wrists, and that he stayed on sick leave for twenty-four days owing to these injuries (see paragraph 14 above). It considers that this treatment attained the minimum level of severity required to fall within the scope of Article 3 of the Convention (see, mutatis mutandis, Bouyid v. Belgium [GC], no. 23380\/09, \u00a7 87, ECHR\u00a02015).<\/p>\n

32.\u00a0\u00a0The Court further observes that the parties did not dispute the fact that the applicant\u2019s injuries, as shown by medical evidence, had arisen in the course of his arrest on 1 September 2012. It follows that the question to be determined is whether recourse to physical force and special means (specifically handcuffs) had been strictly necessary and not excessive in the circumstances of the case (see Annenkov and Others v. Russia, no.\u00a031475\/10, \u00a7\u00a7 78-83, 25 July 2017 for a recent summary of the general principles on the use of force by the police during arrest).<\/p>\n

33.\u00a0\u00a0The Court reiterates that the substantive limb of Article 3 of the Convention requires that a proper assessment of an allegedly excessive use of force should determine whether the degree of physical force was excessive, having regard to relevant circumstances such as the person\u2019s own conduct (see Davitidze v. Russia, no. 8810\/05, \u00a7 89, 30 May 2013). In the present case, the Court is not satisfied that the internal inquiry by the regional department of the Ministry of the Interior resulted in an assessment which corresponded, at least in substance, to this requirement. Nor did the judicial proceedings initiated by the applicant cure any related defects. In fact, in the present case no attempt was made by the authorities to determine the proportionality of the police officers\u2019 reaction to the applicant\u2019s behaviour, namely distributing leaflets and using foul language. Even if the applicant did indeed try to escape, he did not threaten the police officers arresting him, for example, by openly carrying a weapon or by attacking them (see Nadrosov v. Russia, no. 9297\/02, \u00a7 36, 31 July 2008). In any event, the domestic authorities failed to consider whether less intrusive means than an armlock and handcuffs could have been used to stop the applicant\u2019s allegedly unlawful behaviour.<\/p>\n

34.\u00a0\u00a0In view of the foregoing considerations, the Court concludes that it has not been convincingly shown that the recourse to physical force and the use of handcuffs by the police was not excessive. Such use of force and special means entailed relatively significant injuries which undoubtedly caused suffering to the applicant, of a nature amounting to inhuman treatment (see Rehbock v. Slovenia, no. 29462\/95, \u00a7\u00a077, ECHR 2000-XII, and Davitidze, cited above, \u00a7 96).<\/p>\n

35.\u00a0\u00a0There has accordingly been a violation of Article 3 of the Convention in respect of the applicant.<\/p>\n

II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION<\/p>\n

36.\u00a0\u00a0The applicant complained that he had been unlawfully deprived of his liberty on 1 September 2012. He relied on Article 5 \u00a7 1 of the Convention, which in so far as relevant reads as follows:<\/p>\n

\u201c1.\u00a0\u00a0Everyone 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:<\/p>\n

…<\/p>\n

(c)\u00a0\u00a0the 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;<\/p>\n

…\u201d<\/p>\n

37.\u00a0\u00a0The Government submitted that the applicant had been escorted to the police station for the purpose of compiling an administrative-offence record. The subsequent period of his administrative arrest did not exceed three hours, which complied with the requirements of Article 27.5 of the CAO.<\/p>\n

38.\u00a0\u00a0The Court observes that the applicant confined his complaint under Article 5 of the Convention to stating that the police officers had not asked him to cease his allegedly unlawful actions before arresting him. In the Court\u2019s view, those submissions do not disclose any arbitrariness on the part of the authorities. Accordingly, this part of the application is manifestly ill\u2011founded and must be rejected in accordance with Article\u00a035 \u00a7\u00a7\u00a03\u00a0(a) and\u00a04 of the Convention. This finding is, however, without prejudice to examining the same facts as part of the \u201cinterference\u201d under Article 10 of the Convention below.<\/p>\n

III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n

39.\u00a0\u00a0The applicant further complained that the domestic civil proceedings in his case had been unfair and violated his right to the presumption of innocence. He relied on Article 6 of the Convention, which in so far as relevant reads as follows:<\/p>\n

\u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n

2.\u00a0\u00a0Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.<\/p>\n

…\u201d<\/p>\n

A.\u00a0\u00a0Admissibility<\/strong><\/p>\n

40.\u00a0\u00a0The Court notes that the fairness-related aspect of the complaint is unspecific and lacks substantiation. Accordingly, it is manifestly ill-founded and must be rejected in accordance with Article\u00a035 \u00a7\u00a7\u00a03\u00a0(a) and\u00a04 of the Convention.<\/p>\n

41.\u00a0\u00a0As to the presumption of innocence, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7\u00a03\u00a0(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

B.\u00a0\u00a0Merits<\/strong><\/p>\n

1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n

42.\u00a0\u00a0The applicant maintained his complaint.<\/p>\n

43.\u00a0\u00a0The Government submitted that the domestic courts had examined whether recourse to physical force and special means by the police during the applicant\u2019s arrest had been justified and lawful. The courts had made no findings as to whether the applicant had indeed committed an administrative offence or a crime. The applicant\u2019s allegations of a violation of his right to the presumption of innocence were therefore unsubstantiated. The fact that the applicant was unhappy with the result of the trial did not mean that the domestic courts had not been diligent when examining his complaint.<\/p>\n

2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n

44.\u00a0\u00a0The Court reiterates at the outset that the criminal limb of Article 6 of the Convention was applicable to the proceedings against the applicant under the Russian CAO (see Mikhaylova v. Russia, no. 46998\/08, \u00a7\u00a7 50-74, 19 November 2015), the presumption of innocence operating in such proceedings in terms of both Article 6 \u00a7 2 of the Convention and national law (see paragraph 24 above).<\/p>\n

45.\u00a0\u00a0The applicable general principles are summarised in Allen v.\u00a0the\u00a0United Kingdom [GC], no. 25424\/09, \u00a7\u00a7 94 and 103-04, ECHR 2013.<\/p>\n

46.\u00a0\u00a0The applicant\u2019s complaint concerns the alleged violation of his right to the presumption of innocence on account of the wording used in a judgment issued in separate (civil) proceedings. In its judgment, the Voroshilovskiy District Court stated that the police officers had intended to \u201cput an end to the breach of public order, consisting of [showing] disrespect to society accompanied by the use of foul language in a public place [by the applicant], disturbing citizens in an insulting manner and refusing to obey an order by a public official\u201d.<\/p>\n

47.\u00a0\u00a0The civil courts considered that, as of 17 June 2013 when the decision on the appeal in the civil case was issued, the administrative proceedings were still pending. The applicant\u2019s civil claims about the alleged unlawfulness of the police officers\u2019 actions arose out of the same facts as those underlying the administrative charge against him. Having examined the wording used by the civil court (see above), the Court considers that it took up the wording of the offence under Article 20.1 of the CAO, which refers to \u201cviolations of public order … displaying a manifest disregard to society, accompanied by foul language in a public place …\u201d (see paragraph 25 above).<\/p>\n

48.\u00a0\u00a0In the Court\u2019s view, this amounted to a pronouncement that the applicant had committed an administrative offence before it had been proved according to law (compare with Ye\u015filova v. Turkey (dec.) [Committee], no. 20556\/10<\/a>, \u00a7 18, 16 June 2018). Moreover, the Regional Court failed to rectify this wording on appeal despite the duty to observe the applicant\u2019s right to be presumed innocent in respect of the administrative proceedings which were assumed to be still pending (see also Kemal Co\u015fkun v. Turkey, no. 45028\/07, \u00a7\u00a7 42 and 56, 28 March 2017).<\/p>\n

49.\u00a0\u00a0There has accordingly been a violation of Article 6 \u00a7 2 of the Convention.<\/p>\n

IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION<\/p>\n

50.\u00a0\u00a0Referring to Articles 10 and 11 of the Convention, the applicant complained that by stopping his distribution of leaflets, taking him to the police station and prosecuting him for an administrative offence the authorities had violated his rights to freedom of expression and freedom of peaceful assembly.<\/p>\n

51.\u00a0\u00a0The Court considers that this complaint falls to be examined under Article 10 of the Convention, the relevant parts of which read as follows:<\/p>\n

Article 10<\/strong><\/p>\n

\u201c1.\u00a0\u00a0Everyone 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 …<\/p>\n

2.\u00a0\u00a0The 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.\u201d<\/p>\n

A.\u00a0\u00a0Admissibility<\/strong><\/p>\n

52.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

B.\u00a0\u00a0Merits<\/strong><\/p>\n

1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n

53.\u00a0\u00a0The applicant maintained his complaints.<\/p>\n

54.\u00a0\u00a0The Government argued that there had been no interference with the applicant\u2019s rights to freedom of expression and freedom of peaceful assembly. He had been escorted to the police station because he had failed to obey a police officer\u2019s order and had tried to escape, and not because he had staged a solo demonstration.<\/p>\n

2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n

55.\u00a0\u00a0The Court notes at the outset that the intervention of the police and the applicant\u2019s arrest accompanied by the use of force and handcuffs prevented him from expressing his opinions and disseminating information and, therefore, constituted interference with his rights guaranteed under Article 10 of the Convention (see, mutatis mutandis, Fatma Akaltun F\u0131rat v.\u00a0Turkey, no.\u00a034010\/06, \u00a7 52, 10 September 2013). The fact that the prosecution for an administrative offence did not result in a conviction does not alter that finding.<\/p>\n

56.\u00a0\u00a0Officers M. and T. approached the applicant to check his identity documents. However, the domestic authorities have never argued that there were reasons to suspect the applicant of a criminal offence or that his name was on a wanted persons list. Neither have they indicated if there were any reasons for prosecuting the applicant for an administrative offence or any other grounds for arresting a person which could justify an identity check under Russian law, namely section 13 of the Police Act (see paragraph 26 above). Even assuming that there was a legal basis for the police officers\u2019 order to present an identity document, the applicant has never been accused of disobeying such an order (compare Huseynli and Others v. Azerbaijan, nos. 67360\/11 and 2 others, \u00a7 95, 11 February 2016), a fact which casts doubt on the legitimacy of the ensuing intervention by the police. Furthermore, while there is little to contradict the finding that the applicant tried to escape and resisted police officers during his arrest, it is not made out that taking him to the police station was a direct consequence of his behaviour towards the police rather than a consequence of his exercising his freedom of expression by way of leafleting (compare Dilek Aslan v. Turkey, no. 34364\/08, \u00a7 76, 20 October 2015). The Government have not disputed that officer O. had shown some interest in the content of the leaflets distributed by the applicant before the arrival of a special group of police officers, and that Ms B. had wished to stop his leafleting (see paragraph 10 above). In that regard, the interference with the applicant\u2019s right to freedom of expression cannot be viewed as an incidental effect of a police operation (compare with Butkevich v. Russia, no. 5865\/07<\/a>, \u00a7\u00a7 121-23, 13 February 2018, and Malofeyeva v. Russia, no. 36673\/04, \u00a7\u00a7 129-30, 30 May 2013).<\/p>\n

57.\u00a0\u00a0The authorities have consistently maintained that the applicant was using foul language and was disturbing passers-by in an insulting manner before being arrested. The applicant has contested that he used any utterances which could be perceived as foul language during his leafleting. Indeed, it remains unclear what exact words were allegedly uttered by and held against the applicant, in the absence of any detail in the administrative offence record or any further judicial assessment of them. The Court considers that it has not been established whether the applicant used foul language to such an extent or in such a way as to constitute an administrative offence which could have justified his arrest and the termination of his leafleting. The domestic authorities failed to make an assessment as to how exactly the applicant had disturbed passers-by and in what manner he had insulted them. Nor did they consider the adverse effect that the intervention by the police and the arrest of the applicant had on the exercise of his freedom of expression. In this context, the Court cannot but conclude that it was not convincingly shown at the domestic level that these measures were justified (see, for similar context and reasoning, Novikova and Others, cited above, \u00a7\u00a7 223-24; see also Ivashchenko v. Russia, no.\u00a061064\/10<\/a>, \u00a7\u00a7 89-91, 13 February 2018). Faced with the domestic authorities\u2019 failure to give reasons that would be both relevant and sufficient to justify the interference, the Court finds that the domestic authorities cannot be said to have applied standards which were in conformity with the principles embodied in Article 10 or to have based themselves on an acceptable assessment of the relevant facts (see, for the approach, Terentyev v. Russia, no. 25147\/09, \u00a7 24, 26 January 2017; Annenkov and Others v.\u00a0Russia, no. 31475\/10, \u00a7 139, 25 July 2017, and \u00d6\u011fr\u00fc and Others v.\u00a0Turkey, nos. 60087\/10 and 2 others, \u00a7\u00a7 64-71, 19\u00a0December 2017).<\/p>\n

58.\u00a0\u00a0There has accordingly been a violation of Article 10 of the Convention in respect of the applicant.<\/p>\n

V.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

59.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

A.\u00a0\u00a0Damage<\/strong><\/p>\n

60.\u00a0\u00a0The applicant claimed 41,500 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n

61.\u00a0\u00a0The Government contested the claim as excessive and unreasonable.<\/p>\n

62.\u00a0\u00a0The Court observes that it has found violations of Articles 3, 6 and 10 of the Convention in respect of the applicant. Making its assessment on an equitable basis, it awards the applicant EUR 9,800 in respect of non\u2011pecuniary damage, plus any tax that may be chargeable.<\/p>\n

B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n

63.\u00a0\u00a0The applicant did not submit any claims under this head. Accordingly, there is no call to award him any sum on that account.<\/p>\n

C.\u00a0\u00a0Default interest<\/strong><\/p>\n

64.\u00a0\u00a0The 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Declares the complaints under Article 3, Article 6 \u00a7 2 and Article 10 of the Convention admissible and the remainder of the application inadmissible;<\/p>\n

2.\u00a0\u00a0Holds that there has been a violation of Article 3 of the Convention;<\/p>\n

3.\u00a0\u00a0Holds that there has been a violation of Article 6 \u00a7 2 of the Convention;<\/p>\n

4.\u00a0\u00a0Holds that there has been a violation of Article 10 of the Convention;<\/p>\n

5.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months, EUR 9,800 (nine thousand eight 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;<\/p>\n

(b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n

6.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 12 February 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Helen Keller
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

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THIRD SECTION CASE OF NIKOLAYEV v. RUSSIA (Application no. 61443\/13) JUDGMENT STRASBOURG 12 February 2019 This judgment is final but it may be subject to editorial revision. In the case of Nikolayev v. Russia, The European Court of Human Rights…<\/p>\n

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