![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
. On 26 January 2015 the applicants participated in a spontaneous gathering on Lubyanskiy Proyezd in Moscow to demand the release of captured Ukrainian pilot Nadezhda Savchenko. They were arrested during the gathering and convicted of administrative offences.<\/p>\n
THIRD SECTION
\nCASE OF BORETS-PERVAK AND MALDON v. RUSSIA
\n(Applications nos. 42276\/15 and 54278\/15)
\nJUDGMENT
\nSTRASBOURG
\n6 October 2020<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Borets-Pervak and Maldon v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Helen Keller, President, Having regard to:<\/p>\n the applications (nos.\u00a042276\/15 and 54278\/15) 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 two Russian nationals, the first applicant Mr Igor Yuryevich Borets\u2011Pervak and the second applicant Ms Yekaterina Anatolyevna Maldon (\u201cthe applicants\u201d), on 5 August 2015 and 10 October 2015 respectively;<\/p>\n the decision to give notice of the applications to the Russian Government (\u201cthe Government\u201d);<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 15 September 2020,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n 1. On 26 January 2015 the applicants participated in a spontaneous gathering on Lubyanskiy Proyezd in Moscow to demand the release of captured Ukrainian pilot Nadezhda Savchenko. They were arrested during the gathering and convicted of administrative offences.<\/p>\n THE FACTS<\/strong><\/p>\n 2. The applicants, whose details are set out in the Appendix, were represented respectively by Ms D.S. Pigoleva and Mr\u00a0N.S\u00a0Zboroshenko, lawyers practising in Moscow.<\/p>\n 3. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr\u00a0G.\u00a0Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr\u00a0M.\u00a0Galperin.<\/p>\n 4. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 5. On 27 October 2014 the Basmannyy District Court of Moscow extended the detention of Nadezhda Savchenko, a Ukrainian female pilot.<\/p>\n 6. On 26 January 2015 the President of the PACE stated that Russia should free Nadezhda Savchenko. In response to this statement, several public gatherings took place in support of the pilot in Washington, New\u00a0York, Kyiv, Jerusalem, Tel Aviv, St Petersburg and Moscow.<\/p>\n 7. On the evening of 26 January 2015 eleven people gathered on Lubyanskiy Proyezd in Moscow for a stationary demonstration; the gathering had not been notified to the city authorities. At first the participants stood silently holding handwritten posters \u201cNo to war\u201d, \u201cFreedom for Nadezhda Savchenko!\u201d A while later they started to chant \u201cFreedom for Nadezhda Savchenko!\u201d At different times the applicants were arrested and taken to police stations.<\/p>\n 8. Details as regards the administrative proceedings against each applicant are stated in the Appendix.<\/p>\n RELEVANT LEGAL FRAMEWORK<\/strong><\/p>\n 9. Article 20.2 \u00a7 5 of the Code of Administrative Offences (CAO) provides that violation by a participant in a public event of the established procedure for conducting a public event is punishable with a fine of 10,000 to 20,000 roubles (RUB) or up to forty hours of community work.<\/p>\n 10. For a summary of other relevant domestic provisions see Navalnyy v.\u00a0Russia [GC] (nos. 29580\/12 and 4 others, \u00a7\u00a7 46-47, 15\u00a0November 2018); Lashmankin and Others v. Russia (nos. 57818\/09 and 14 others, \u00a7\u00a7\u00a0223 and 226, 7\u00a0February 2017); and Korneyeva v. Russia (no. 72051\/17, \u00a7\u00a7\u00a022-26, 8\u00a0October 2019).<\/p>\n 11. The domestic legal provisions governing administrative transfer (escorting) and detention are also set out in the case of Butkevich v.\u00a0Russia (see no.\u00a05865\/07, \u00a7\u00a7\u00a033-36, 13 February 2018).<\/p>\n THE LAW<\/strong><\/p>\n I. JOINDER OF THE APPLICATIONS<\/p>\n 12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION<\/p>\n 13. The applicants complained of disproportionate measures taken against them as participants of a peaceful public assembly, namely their arrest followed by their transfer to the police station and conviction for an administrative offence. They relied on Articles 10 and 11 of the Convention. However, this falls to be examined under Article 11, which reads as follows:<\/p>\n \u201c1. 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.<\/p>\n 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.\u201d<\/p>\n 14. The Government submitted that the gathering in the present case had not been a spontaneous one because the activists could have held it later, after proper notification of their demonstration. They pointed out that the applicants in the present case had been convicted under Articles 19.3 \u00a7\u00a01 (failure to comply with a lawful order of an official in connection with the exercise of his duties) and 20.2 \u00a7 5 (violation by a participant of the procedure for a public event) of the Code of Administrative Offences (\u201cthe CAO\u201d) with reference to the failure to notify the authorities of the public gathering in accordance with the procedure prescribed by sections 5 and 7 of the Public Events Act.<\/p>\n 15. It follows that the applicants were arrested, transferred to the police station and charged with administrative offences for the sole reason that their gathering as such had not been authorised.<\/p>\n 16. The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevi\u010dius and Others v.\u00a0Lithuania [GC], no.\u00a037553\/05, ECHR 2015, with further references) and proportionality of interference with it (see Oya Ataman v.\u00a0Turkey, no.\u00a074552\/01, ECHR 2006\u2011XIV, and Hyde Park and Others v.\u00a0Moldova, no.\u00a033482\/06, 31 March 2009).<\/p>\n 17. In the leading cases (see, for example, Frumkin v.\u00a0Russia, no.\u00a074568\/12, 5\u00a0January 2016; Navalnyy and Yashin v.\u00a0Russia, no.\u00a076204\/11, 4\u00a0December 2014; and Kasparov and Others v.\u00a0Russia, no.\u00a021613\/07, 3\u00a0October 2013), the Court already found a violation in respect of issues similar to those in the present case.<\/p>\n 18. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the measures applied to the applicants as peaceful participants in the public assembly did not correspond to a pressing social need and were thus not necessary in a democratic society.<\/p>\n 19. These complaints are therefore admissible and disclose a breach of Article 11 of the Convention.<\/p>\n III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE LAW<\/p>\n 20. The applicants submitted other complaints which also raised issues under Articles 5 and 6 of the Convention, given the relevant well\u2011established case-law of the Court. These complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. They must therefore be declared admissible.<\/p>\n 21. Having examined all the material before it, the Court concludes that these remaining complaints also disclose violations of Articles 5 and 6 of the Convention, as indicated in the appended table, in the light of its findings in Vyerentsov v. Ukraine (no.\u00a020372\/11, \u00a7\u00a7 81-83, 11\u00a0April 2013); Karelin v.\u00a0Russia (no. 926\/08, \u00a7\u00a7 60-84, 20 September 2016); and Lashmankin and Others v. Russia (nos. 57818\/09 and 14 others, \u00a7\u00a7\u00a0486\u201192, 7\u00a0February 2017).<\/p>\n 22. As regards Article 5 \u00a7 1, the finding of a violation relates to the arbitrary character of the applicants\u2019 arrests on 26\u00a0January 2015. Having reached this conclusion, in the circumstances of this case the Court does not consider it necessary to examine the first applicant\u2019s allegation that his detention on that day exceeded the statutory limit of three hours (see the appended table).<\/p>\n 23. As regards Article 6 \u00a7 1, the complaints relying on this provision disclose a violation of the impartiality requirement on account of the absence of a prosecuting party (see the appended table). Having reached the conclusion that the administrative proceedings, taken as a whole, were conducted in violation of the right to a fair hearing, the Court considers that it is not necessary to address the remainder of the applicants\u2019 complaints under Article 6 \u00a7 3 (c) and (d) of the Convention, set out in the appended table (see Frumkin, cited above, \u00a7\u00a0168).<\/p>\n IV. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 24. Article\u00a041 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. Damage<\/strong><\/p>\n 25. The applicants each claimed 20,000 euros (EUR) for non\u2011pecuniary damage.<\/p>\n 26. The Government contested these claims as unsubstantiated and excessive.<\/p>\n 27. Having regard to the parties\u2019 submissions and to its case\u2011law concerning violations of Article 11 in relation to arbitrary arrests at peaceful assemblies, and taking into account the severity of the applicants\u2019 respective sentences, the Court considers it reasonable to award the following amounts, plus any tax that may be chargeable, in respect of non-pecuniary damage: EUR 7,500 to the first applicant and EUR\u00a05,000 to the second applicant.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 28. The first applicant also claimed EUR 2,030 for costs and expenses incurred before the domestic courts and the Court and EUR 220 for the translation costs. The second applicant claimed EUR 9,810 for costs and expenses, including legal fees set out in the legal services agreement and the itemised schedule, and postal expenses.<\/p>\n 29. The Government contested these claims as excessive, unsubstantiated and having no legal basis.<\/p>\n 30. According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession to its case\u2011law and the repetitive nature of the legal issues examined in this case, the Court considers it reasonable to award the following amounts, plus any tax that may be chargeable to the applicants: EUR 1,700 to each applicant (representing EUR 850 in respect costs and expenses incurred in the domestic proceedings plus EUR 850 for representation before the Court). In accordance with the second applicant\u2019s request, her award for costs and expenses is to be paid to the representative\u2019s bank account.<\/p>\n C. Default interest<\/strong><\/p>\n 31. 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Decides to join the applications;<\/p>\n 2. Declares the applications admissible;<\/p>\n 3. Holds that there has been a violation of Article 11 of the Convention in respect of both applicants;<\/p>\n 4. Holds that there has been a violation of Articles 5 and 6 of the Convention as regards the other complaints raised under the well\u2011established case-law of the Court (see the appended table);<\/p>\n 5. Holds that there is no need to examine the complaints under Article\u00a05\u00a0\u00a7\u00a01 of the Convention concerning deprivation of liberty in excess of three hours and the complaints under Article 6 \u00a7 3\u00a0(c) and (d) of the Convention (see the appended table);<\/p>\n 6. Holds<\/p>\n (a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i) to the first applicant EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non\u2011pecuniary damage;<\/p>\n (ii) to the second applicant EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non\u2011pecuniary damage;<\/p>\n (iii) to each applicant EUR\u00a01,700 (one thousand seven hundred euros) plus any tax that may be chargeable to the applicants, for costs and expenses, payable in the second applicant\u2019s case to her representative;<\/p>\n (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 7. Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 6 October 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Olga Chernishova \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Helen Keller <\/p>\n APPENDIX<\/strong><\/p>\n no. and date of introduction<\/strong><\/td>\n Date of birth<\/strong><\/p>\n Place of residence<\/strong><\/p>\n Nationality<\/strong><\/td>\n (Russian roubles)<\/strong><\/td>\n (i)\u00a0admissible and disclosing a violation<\/strong><\/p>\n (ii) not necessary to examine<\/strong>\u00a0<\/strong><\/td>\n<\/tr>\n<\/thead>\n\n 05\/08\/2015<\/p>\n <\/td>\n 1959<\/p>\n Moscow<\/p>\n Russian<\/p>\n <\/td>\n Administrative detention 11 days<\/p>\n <\/p>\n Article 20.2 \u00a7 5 of the CAO<\/p>\n Administrative fine<\/p>\n RUB 10,000<\/td>\n <\/p>\n <\/p>\n Appeal decision 14\/04\/2015 Moscow City Court<\/td>\n Art. 6 \u00a7 1<\/strong> \u2013 lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.\u00a0Russia, no.\u00a0926\/08, 20\u00a0September 2016).<\/p>\n \u00a0<\/strong><\/p>\n (ii) Art. 5 \u00a7 1<\/strong> \u2013 unlawful detention for more than three hours.<\/p>\n Art. 6 \u00a7 3 (c)<\/strong> \u2013 the first-instance court dismissed the applicant\u2019s motion to provide him with time to retain a lawyer (proceedings under Art. 19.3 of the CAO).<\/p>\n Article 6 \u00a7 3 (d)<\/strong> \u2013 the first instance (proceedings under Art.\u00a020.2) and appeal (proceedings under Art. 19.3) courts refused to call prosecution witnesses, namely the police officers who had arrested the applicant.<\/td>\n<\/tr>\n 10\/10\/2015<\/p>\n <\/td>\n 1972<\/p>\n Moscow<\/p>\n Russian<\/p>\n <\/td>\n Administrative fine<\/p>\n RUB 20,000<\/p>\n <\/p>\n <\/p>\n <\/td>\n Art. 6 \u00a7 1<\/strong> \u2013 lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.\u00a0Russia, no.\u00a0926\/08, 20\u00a0September 2016).<\/p>\n \u00a0<\/strong><\/p>\n (ii) Art. 6 \u00a7 3 (d)<\/strong> \u2013 the appellate court refused to question prosecution witnesses, namely the police officers who had arrested the applicant.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\nMar\u00eda El\u00f3segui,
\nAna Maria Guerra Martins, judges,
\nand Olga Chernishova, Deputy Section Registrar,<\/p>\n<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n\n\n
\n No.<\/strong><\/td>\n Application<\/strong><\/p>\n Applicant name<\/strong><\/p>\n Represented by<\/strong><\/td>\n Charge and penalty<\/strong><\/p>\n Final domestic decision details<\/strong><\/td>\n Other complaints under well-established case-law<\/strong><\/p>\n \n 1.<\/td>\n 42276\/15<\/p>\n Igor Yuryevich BORETS-PERVAK<\/strong><\/p>\n Darya Sergeyevna PIGOLEVA<\/td>\n Article 19.3 \u00a7 1 of the CAO<\/p>\n Appeal decision 06\/02\/2015 Moscow City Court<\/p>\n (i) Art. 5 \u00a7 1<\/strong> \u2013 unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of administrative offence (see Lashmankin and Others v.\u00a0Russia, nos. 57818\/09 and 14\u00a0others, \u00a7\u00a7 486\u201192, 7\u00a0February 2017);<\/p>\n \n 2.<\/td>\n 54278\/15*<\/p>\n Yekaterina Anatolyevna MALDON<\/strong><\/p>\n Nikolay Sergeyevich ZBOROSHENKO<\/td>\n Article 20.2 \u00a7 5 of the CAO<\/p>\n Appeal decision 20\/04\/2015 Moscow City Court<\/td>\n (i) Art. 5 \u00a7 1<\/strong> \u2013 unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of administrative offence (see Lashmankin and Others v.\u00a0Russia, nos. 57818\/09 and 14\u00a0others, \u00a7\u00a7 486\u201192, 7\u00a0February 2017);<\/p>\n