Судебное дело "А.В. Захаркин против России"
16.04.2014
Communicated on 24 March 2014
FIRST SECTION
Application no. 25501/07
Marina Viktorovna NOVIKOVA against Russia
and 16 other applications
(see list appended)
This communication in
Russian
STATEMENT OF FACTS
I. THE CIRCUMSTANCES OF THE CASES AND THE COMPLAINTS
The applicants are Russian nationals.
A list of the applicants is set out in the appendix.
The facts of the cases, as submitted by the applicants, may be
summarised as follows.
1. Application no. 25501/07 was lodged on 27 April 2007 by Marina
Viktorovna NOVIKOVA, who was born on 28 February 1972 and lives in
Moscow.
On 10 November 2006 the applicant staged a demonstration in front of
the State Duma in Moscow and held a banner reading "Psychiatry kills
our children on our taxes". According to her, this was a solo static
demonstration (одиночное пикетирование) (see "Relevant domestic law
and practice" below). In ten minutes, she was approached by police
officers who then took her to the district police station. She spent
some three hours there and was then allowed to leave. An arrest record
was compiled; the legal grounds and reasons for her arrest are
unclear.
The record of administrative offence states that she was accused of
"taking part, together with other citizens, in a demonstration in
respect of which no prior notification was provided to the public
authorities". Her actions were classified under Article 20.2 of the
Code of Administrative Offences ("the CAO", hereinafter) which
regulates the penalties applied to violations of the regulations on
public gatherings detailed, inter alia, in the Public Assemblies Act.
Officer G. submitted a written report to his hierarchical superior
indicating that the applicant "had been arrested and taken to the
police station for violating the regulations on public assemblies,
namely, Article 20.2 of the CAO".
On an unspecified date, the case against the applicant was submitted
to the justice of the peace of the Tverskoy District. According to the
authorities (see below), on 10 November 2006 the applicant was
summoned to a hearing on 15 November 2006 but refused to sign the
document. According to the applicant, the order listing a hearing for
15 November 2006 was only issued on 14 November 2006, and she had not
been aware of it.
The applicant made no written submissions to the justice of the peace.
Having examined the file, on 15 November 2006 the judge issued a
judgment finding the applicant guilty under Article 20.2 of the CAO
and imposing a fine of 1,000 Russian roubles (RUB)^. The judge
considered that the applicant had been apprised of the hearing but had
refused to sign the summons. The court decided to proceed with the
case in her absence and considered that the applicant had been
afforded an adequate opportunity to make written or oral submissions.
Referring to the arrest record, the offence record and G.'s report
(see above), the court considered that the applicant had participated
in a demonstration after which some five unspecified people and the
applicant had been arrested. In the court's view, the applicant's
behaviour amounted to participation in a public assembly which the
public authorities had not been notified of in advance.
The applicant sought re-examination of the case on appeal by the
Tverskoy District Court of Moscow. On 5 December 2006 it heard the
applicant and upheld the judgment of the justice of the peace. On 23
January 2007 the Deputy President of the Moscow City Court confirmed
those court decisions on supervisory review.
Complaint: The applicant alleges that the authorities' actions
disclose a violation of her freedom of expression.
2. Application no . 44135/08 wa s lo dged on 31 July 2008 by Denis
Viktorovich MATVEYEV, who was born on 10 December 1977 and is
being held in a temporary detention centre in Naberezhniye Chelny.
Apparently, the applicant notified the local authority of his
intention to hold a public assembly in front of the Naberezhniye
Chelny Prosecutor's Office on 22 April 2008. After the authority
disagreed, he decided to stage a solo demonstration.
On 22 April 2008 the applicant held the demonstration. According to
the authorities, he set up a tent and a banner, gathered passers-by
and voiced his claims to them. After four hours, he was arrested by
the police.
(a) On 24 April 2008 the justice of the peace found the applicant
guilty under Article 20.2 of the CAO and imposed a fine of RUB 1,000.
The court stated that the applicant had intended to hold a non-stop
hunger-strike (for an indefinite period of time) while displaying a
banner reading "Hunger strike. Call for signatures". The court
concluded that the applicant had intended to hold a public assembly.
The court considered that, in breach of the Public Assemblies Act, he
had failed to specify how he would ensure that public order be
maintained and any necessary medical aid be provided during the event.
The court also mentioned that the Act prohibited public events between
11 p.m. and 7 a.m.
The applicant appealed to the Naberezhniye Chelny Town Court. By a
decision of 7 May 2008 the Town Court upheld the judgment of the
justice of the peace. The applicant obtained a copy of the decision on
an unspecified date. On 3 June 2008 the applicant lodged a
supervisory-review appeal with the Supreme Court of the Tatarstan
Republic. By a letter of 8 July 2008 the Deputy President of that
court dismissed it. The applicant received that letter on an
unspecified date.
(b) In separate proceedings, on 7 May 2008 the justice of the peace
found the applicant guilty under Article 19.3 of the CAO because he
had disobeyed the police order to stop the demonstration on 22 April
2008. The court sentenced him to seven days of administrative
detention. On 8 May 2008 the Town Court upheld the judgment in a
summary manner. The applicant obtained a copy of the appeal decision
on an unspecified date. The case was not subject to supervisory
review.
Complaints: Referring to Articles 7, 10 and 11 of the Convention the
applicant complains about his arrest on 22 April 2008 and his
conviction in the administrative offence proceedings and that the
supervisory court's failure to issue a procedural decision impeded
further appeal to the Supreme Court of Russia, in breach of Articles 6
and 13 of the Convention.
3. Application no . 2886/09 wa s lo dged on 6 November 2008 by
Vyacheslav Aleksandrovich BASHKOV, who was born on 20 May 1977 and
lives in Yekaterinburg.
In the afternoon of 13 December 2007 the applicant staged a solo
demonstration in front of the regional office of the Ministry of the
Interior in Yekaterinburg. He was holding a poster ("УБОП - УБийцы
ОПпозиции!") criticizing the Organised Crime Unit (УБОП) and blaming
them for the recent murder of an opposition activist. Around 4 p.m.
several police officers approached the applicant. According to him,
they tore apart the poster he was holding and took him to the regional
office of the Ministry of the Interior. Soon thereafter, the applicant
was taken to the local police station. No escorting/arrest record was
compiled. The applicant was allowed to leave at 5.45 p.m.
The applicant complained to the the regional office of the Ministry of
the Interior. On 7 March 2008 his complaint was dismissed.
The applicant also brought court proceedings challenging the actions
of the police in respect of him, including the unlawful deprivation of
his liberty. By a judgment of 7 April 2008 the Zheleznodorozhniy
District Court of Yekaterinburg considered that the police had
unlawfully disrupted the solo demonstration. The court also considered
that the applicant had not been "deprived of [his] liberty" in
accordance with the procedure set out under the CAO in respect of
arrest or escorting to the police station. On 7 August 2008 the
Sverdlovsk Regional Court upheld the judgment.
Complaints: The applicant complains under Article 5 of the Convention
that he was unlawfully deprived of his liberty on 13 December 2007 and
that he could obtain no compensation, and that the disruption of his
demonstration and his unlawful arrest amounted to a violation of
Articles 10 and 11 of the Convention.
4. Application no . 7941/09 wa s lo dged on 19 December 2008 by Gleb
Vadimovich EDELEV, who was born on 25 May 1969 and lives in
Yekaterinburg.
The applicant, a local newspaper journalist, was present during the
solo demonstration held by Mr Bashkov on 13 December 2007. He was
taken to the regional office of the Ministry of the Interior and then
to the local police station where he remained for one hour. The
applicant brought civil proceedings challenging the actions of the
police officers. By a judgment of 22 July 2008 the Kirovskiy District
Court of Yekaterinburg dismissed his claims. On 4 September 2008 the
Sverdlovsk Regional Court upheld the judgment. The applicant obtained
a copy of the appeal decision on an unspecified date.
Complaints: The applicant complains under Article 5 that he was
unlawfully and arbitrarily deprived of his liberty on 13 December 2007
and could obtain no compensation, and that the actions by the police
in respect of him disclosed a violation of Article 10 of the
Convention, in particular in relation to his right to receive and
impart information and ideas.
5. Application no . 40377/10 wa s lodged on 19 June 2010 by Aleksandr
Vladimirovich ZAKHARKIN, who was born on 1 August 1961 and lives
in Surgut, in the Khanty-Mansiyskiy Autonomous Region. He is
represented by Sergey Ivanovich BELYAYEV and Anton Leonidovich
BURKOV.
The applicant was the leader of a trade union in a private company.
His co-workers expressed their wish to hold a public assembly on
Constitution Day on 12 December 2009. The applicant, in his capacity
as trade union leader, decided to help them. According to him, such
help was "an indirect expression of his own opinion". The applicant
distributed banners and explained that it would be more practicable to
stage solo demonstrations. To avoid prosecution for holding a public
assembly without notifying the authorities in advance, the applicant
suggested that his co-workers position themselves at some distance
from each other, for instance on different streets. At the time, there
was no federal or regional statutory requirement concerning a minimum
distance between simultaneous solo demonstrations (see "Relevant
domestic law and practice").
The applicant was then arrested and taken to the police station, where
he stayed for three hours. On 18 December 2009 the justice of the
peace found him guilty under Article 20.2 of the CAO and imposed a
fine of RUB 1,500 on him. On 22 January 2010 the Surgut Town Court
upheld the judgment. The applicant did not apply for supervisory
review of those court decisions.
Complaints: The applicant complains under Articles 5 and 13 of the
Convention that he was unlawfully and arbitrarily deprived of his
liberty on 12 December 2009; under Articles 6 and 13 that he was not
given legal assistance free of charge in the administrative offence
proceedings, and that the court took the function of prosecution; and
under Articles 10, 11 and 13 that he was impeded in organising solo
demonstrations held by trade union members and was deprived of his
liberty and fined.
6. Application no. 57569/11 was lodg ed on 2 6 August 2011 by Yuriy
Ignatyevich MATSNEV, who was born on 27 October 1937 and lives in
Kaliningrad.
On 30 July 2010 the applicant staged a solo demonstration in front of
the Kaliningrad Regional Administration building. He was arrested by
the police and taken to the police station. He remained there for two
hours and was then allowed to leave. No administrative offence
proceedings were instituted against him.
The applicant brought civil proceedings seeking RUB 500,000 as
compensation in respect of non-pecuniary damage caused by the
authorities' actions. By a judgment of 14 March 2010, the Tsentralnyy
District Court of Kaliningrad acknowledged that the taking of the
applicant to the police station and his retention there had been
unlawful. The court awarded him RUB 6,000 in respect of non-pecuniary
damage.^ However, the court dismissed his claim concerning the alleged
destruction of a banner by the police. On 25 May 2011 the Kaliningrad
Regional Court upheld the judgment.
Complaints: The applicant complains that he was unlawfully deprived of
his liberty and awarded a derisory sum in compensation, and that the
circumstances of the case disclosed a violation of Article 10 of the
Convention.
7. Application no. 66314/11 was lodged on 7 October 2011 by Aleksandr
Alekseyevich DEMIN, who was born on 27 June 1954 and lives in
Syktyvkar, in the Komi Republic.
(a) At 2 p.m. on 10 December 2011 the applicant held a solo
demonstration. He held banners reading "We stand for fair elections"
and "Shame on the elections in Komi". At 2.25 p.m. he was approached
by police officers P. and Z. who, for unspecified reasons, asked him
to show his identity documents. According to officer P., the applicant
disobeyed this order. Having consulted their hierarchical superior in
relation to the contents of the banners, the officers took the
applicant to the police station. Later on, during a police inquiry in
February 2012, P. stated that he had informed the on-duty officer of
the applicant's name; the on-duty officer had ordered him to take the
applicant to the police station as a criminal suspect.
No record of escorting him to the police station or record of arrest
was compiled. According to the logbook of the police station, the
applicant was admitted there at 3 p.m. The applicant was then taken to
the town police department as he resembled a theft suspect (Caucasian,
around 50 years old). He was made to give fingerprints and be
photographed against his will (according to the applicant). As it was
considered that he had not been involved in the theft, he was allowed
to leave at or around 3.30 p.m.
The applicant sued the police in relation to the above-mentioned
actions. On 17 July 2012 the Syktyvkar Town Court of the Komi Republic
dismissed his claims.
The court considered that the applicant had consented to be
photographed and have his fingerprints taken and that the police
officers had acted in compliance with the Police Act, in particular
when they had taken the applicant to the police station. On 13
September 2012 the Supreme Court of the Komi Republic upheld the
judgment. The applicant did not apply for further review of those
court decisions.
Complaints: The applicant alleges that the stopping of the
demonstration and the deprivation of his liberty violated Articles 10
and 11 of the Convention; he also complains that he could obtain no
compensation.
(b) On 24 February 2012 the applicant staged a solo demonstration in
Stefanovskaya Square in Syktyvkar. On 5 May 2012 the justice of the
peace convicted him under Article 20.2 of the CAO because he had been
standing less than 150 metres from a court building, whereas the
Public Assemblies Act prohibited public events in the immediate
vicinity of court buildings. The applicant was ordered to pay a fine
of RUB 1,000. On 6 June 2012 the Syktyvkar Town Court upheld the
judgment. The applicant did not apply for supervisory review of those
court decisions.
Complaint: The applicant complains of a violation of Articles 10 and
11 of the Convention.
(c) In March 2004 the authorities instituted criminal proceedings
against K. and B., who were accused of causing bodily injuries to the
applicant. In November 2010 the case was discontinued due to the
expiry of the time-limit for prosecution.
The applicant also sought the institution of administrative offence
proceedings in relation to a traffic accident. An inquiry conducted in
September 2005 concluded that the relevant file had been lost.
The applicant sought RUB 25,000 in compensation in respect of
non-pecuniary damage on account of the length of the criminal
investigation and RUB 5,000 on account of the loss of the file. On
27 January 2011 the Syktyvkar Town Court awarded him RUB 5,000 and RUB
2,000 respectively.^ On 11 April 2011 the Supreme Court of the Komi
Republic upheld the judgment.
Complaints: The applicant complains, in substance, about the length of
the proceedings and the derisory amount of compensation he received.
8. Application no. 80153/12 was lodged on 10 November 2012 by Viktor
Mikhaylovich SAVCHENKO, who was born on 18 October 1967 and lives
in the village of Platonovo-Pevrovka in the Rostov region.
On 23 June 2011, when Mr Putin was on his visit to the village of
Peshkovo, the applicant staged a demonstration, standing at some
distance from a road close to the village and holding a banner reading
"Mr Putin! In the Rostov region they disregard your Decree on social
assistance to families. The Russian Government disregard their
obligations to issue housing certificates!"
According to the applicant, police officers approached him and ordered
him to go to another place where journalists were filming. He arrived
there and displayed his banner. He was approached by people in plain
clothes who ordered that he be taken to the police station. The police
complied. After some three hours there, he was free to leave.
The applicant was accused of disorderly behaviour on account of his
use of coarse language in a public place on 23 June 2011. On 24 June
2011 the senior police officer found him guilty under Article 20.1 of
the CAO and imposed a fine of RUB 500 on him. On 21 December 2011 the
Azov Town Court quashed the conviction because the senior police
officer had not heard evidence from the applicant. The court
discontinued the case owing to the expiry of the time-limit for
prosecution. On 7 February 2012 the Rostov Regional Court upheld the
judgment.
The applicant brought civil proceedings challenging the actions of the
police in respect of him. On 4 April 2012 the Town Court dismissed his
claims. On 14 June 2012 the Regional Court upheld the judgment. The
applicant did not apply for further review of those court decisions.
Complaints: The applicant alleges that the circumstances of the case
disclosed violations of Articles 5, 10 and 11 of the Convention.
9. Application no. 5790/13 was lodg ed on 3 0 N ovember 2012 by
Aleksandr Mikhaylovich KIRPICHENKO, who was born on 18 July 1984
and lives in Astrakhan. He is represented by Konstantin Ilyich
TEREKHOV.
On 3 July 2012 the applicant staged a solo demonstration at a bus
stop. He was holding a banner reading "The Kremlin is not for sale -
it is a piece of architecture!". After several minutes some five
passers-by stopped and looked at him. The applicant was then arrested
and accused of holding a public assembly without giving prior notice.
On 20 July 2012 the justice of the peace convicted him under Article
20.2 of the CAO and imposed a fine of RUB 20,000^ on him. On 21 August
2012 the Kirovskiy District Court of Astrakhan upheld the judgment.
The applicant did not apply for supervisory review of those court
decisions.
Complaints: The applicant alleges a violation of Article 11 of the
Convention, arguing that it was only natural that a solo demonstration
was capable of attracting the attention of passers-by and that there
were no compelling reasons to stop it or to arrest him.
10. Application no. 23944/13 was lodged on 25 February 2013 by Nina
Tagirovna BELYAYEVA, who was born on 9 June 1956 and lives in Moscow.
(a) The applicant was dismissed from her job in a public hospital in
Moscow. At 7.30 on 4 July 2011 the applicant staged a solo
demonstration in front of the hospital. At or around 10 a.m. she was
approached by police officers and paramedics, who took her to a
psychiatric hospital. The hospital staff considered that there were no
compelling reasons to proceed with an involuntary admission. The
applicant was thus allowed to leave the hospital at 6 p.m.
The applicant sued the police station, the paramedics' office and the
State for unlawful deprivation of liberty. On 22 November 2012 the
Simonovskiy District Court of Moscow dismissed her claims. On 14
December 2012 the Moscow City Court upheld the judgment.
The applicant also sued the psychiatric hospital. On 14 February 2013
the Nagatinskiy District Court of Moscow dismissed her claims. On
18 April 2013 the City Court upheld the judgment. The applicant did
not apply for further review of those court decisions.
Complaints: The applicant complains that the circumstances of the case
disclosed violations of Articles 5 and 10 of the Convention, and that
she could obtain no compensation.
(b) On 3 April 2013 the applicant was sticking up flyers on the
building of the Moscow City Court and on the fences. On 16 April 2013
the justice of the peace convicted her of disobeying an order by the
court bailiff to stop breaching internal court rules by sticking up
flyers containing unspecified "coarse language" (Article 17.3 of the
CAO). The applicant was given a fine of RUB 1,000. She appealed,
arguing that she had stuck the flyers up outside the court premises,
that she had not used coarse language and that the court had omitted
to specify the internal court rules which she had violated and whether
the bailiffs were competent to act in relation to any such breach. On
10 June 2013 the Preobrazhenskiy District Court dismissed the
applicant's appeal in a summary manner. The applicant did not apply
for further review of those court decisions.
In the meantime, on 23 April 2013 the applicant was convicted under
Article 20.1 of the CAO for sticking up flyers. She was fined RUB
2,500. She appealed, contending that the court had not established any
motive for the alleged disorderly behaviour, had not specified any
"coarse language" and had not examined, in any event, the contents of
the flyers. On 24 May 2013 the City Court upheld the judgment. The
applicant did not apply for supervisory review of those court
decisions.
Complaints: The applicant complains that the circumstances of the case
disclosed a violation of Article 11 of the Convention.
11. Application no. 35000/13 was lodged on 20 May 2013 by Filipp
Igorevich TSUKANOV, who was born on 19 December 1984 and lives in
Moscow. He is represented by Konstantin Ilyich TEREKHOV.
The State Duma scheduled for December 2012 the examination of the
draft law imposing a ban on the adoption of Russian children by
nationals of the United States of America. On 17 December 2012 the
next (apparently, the last) reading was scheduled for 19 December
2012. According to the applicant, he read on various online social
networks that many people intended to stage solo demonstrations on 19
December 2012 in front of the Duma to express their opposition to the
draft law. He decided to hold his own solo demonstration since there
was no longer time to respect the minimum statutory three-day notice
period for any public assembly.
At or around 9 a.m. the applicant started his solo demonstration at
some distance from the other demonstrators. Some minutes later, he was
arrested by the police. He was accused of participating in a public
assembly without giving prior notice, in breach of Article 20.2 of the
CAO.
Since January 2013 Moscow city law no. 10 of 4 April 2007 has included
a requirement that solo demonstrators keep a distance of fifty metres
from each other.
Also since 1 January 2013 certain administrative offence cases,
including those under Article 20.2 of the CAO, have had to be examined
by district courts at first instance. On an unspecified date, the
administrative offence case against the applicant was accepted for
examination by a justice of the peace.
On 6 February 2013 the justice of the peace held a hearing and ordered
that the police officer who had arrested the applicant give evidence.
Having heard the officer and the applicant, the judge found the latter
guilty under Article 20.2 of the CAO and imposed a fine of RUB 20,000
(EUR 500) on him. On 11 March 2013 the Tverskoy District Court of
Moscow upheld the judgment. The applicant did not apply for
supervisory review of those court decisions.
Complaints: The applicant argues under Article 11 of the Convention
that he was arrested and prosecuted for a solo demonstration; that
even presuming that he had participated in a public assembly, such
assembly was justified as an immediate and peaceful response to the
imminent adoption of a controversial draft law; and that his taking to
the police station and prosecution on the sole ground of failing to
observe the notice requirement constituted a disproportionate
interference with his freedom of assembly. The applicant also argues
under Article 6 of the Convention that due to the lack of a
prosecuting party, the first-instance court took on the role of
prosecution and collected incriminating evidence, including the
calling of witnesses. The applicant also argues that the courts at
both levels of jurisdiction were not "established by law" because
after 1 January 2013 justices of the peace had no jurisdiction in
cases relating to Article 20.2 of the CAO; district courts could no
longer act as courts of appeal in such cases.
12. Application no. 35010/13 was lodged on 20 May 2013 by Artem
Aleksandrovich TORCHINSKIY, who was born on 28 June 1979 and lives in
Moscow. He is represented by Konstantin Ilyich TEREKHOV.
The circumstances of the present case are similar to those of Mr
Tsukanov's case (see application no. 35000/13 above).
On an unspecified date, the administrative offence case against the
applicant was accepted for examination by a justice of the peace. On
15 January 2013 the judge convicted the applicant under Article 20.2
of the CAO and imposed a fine of RUB 20,000 on him. On 13 February
2013 the Tverskoy District Court of Moscow upheld the judgment. The
applicant did not apply for supervisory review of those court
decisions.
Complaints: The applicant argues under Article 11 of the Convention
that he was arrested and prosecuted for a solo demonstration; that
even assuming that he did participate in a public assembly, such
assembly was justified as an immediate and peaceful response to the
imminent adoption of a controversial draft law. The applicant argues
under Article 6 of the Convention that due to the lack of a
prosecuting party, the first-instance court took the role of
prosecution and collected incriminating evidence, including the
calling of witnesses. The applicant also argues that the courts at
both levels of jurisdiction were not "established by law", that as of
1 January 2013 justices of the peace had no jurisdiction in cases
relating to Article 20.2 of the CAO, and that district courts could no
longer act as courts of appeal in such cases.
13. Application no. 35015/13 was lodged on 20 May 2013 by Valeriy
Leonidovich ROMAKHIN, who was born on 30 July 1965 and lives in
Astrakhan. He is represented by Konstantin Ilyich TEREKHOV.
At 1.30 p.m. on 10 November 2012 the applicant held a solo
demonstration in front of the Maritime University in Astrakhan, to
express his disagreement with the recent decision to close the
university. Some fifty metres away, across the road, Mr A. held a
demonstration, making similar claims. Shortly after starting his
demonstration, the applicant was arrested by the police and was taken
to the police station. He was allowed to leave after several hours.
In the Astrakhan Region, law no. 80/2012-FZ of 27 November 2012 set
the minimum distance between solo demonstrators at no less than twenty
metres.
On 6 December 2012 a justice of the peace convicted him under Article
20.2 of the CAO and imposed a fine of RUB 20,000 on him. On 5 February
2013 the Sovetskiy District Court of Astrakhan upheld the judgment.
The courts considered that the applicant and Mr A. had held a public
assembly together (the common logistical organisation, timing and
claims disclosing a common goal), which by law required the local
authorities to be notified in advance. The courts concluded that the
offence impinged upon public order and public security, "having a
significant adverse impact on protected public relations". The
applicant did not apply for supervisory review of those court
decisions.
Complaints: The applicant alleges that the circumstances of the case
disclosed a violation of Article 11 of the Convention, in that his
arrest and prosecution on the sole ground of failing to respect the
notification requirement were disproportionate.
14. Application no. 37038/13 was lodged on 20 May 2013 by Igor
Aleksandrovich TARASOV, who was born on 16 September 1980 and lives in
Moscow. He is represented by Konstantin Ilyich TEREKHOV.
The circumstances of the present case are similar to those of Mr
Tsukanov's case (see application no. 35000/13 above).
On an unspecified date, the administrative offence case against the
applicant was accepted for examination by a justice of the peace. On
15 January 2013 the judge convicted the applicant under Article 20.2
of the CAO and imposed a fine of RUB 20,000 on him. On 20 February
2013 the Tverskoy District Court of Moscow upheld the judgment. The
applicant did not apply for supervisory review of those decisions.
Complaints: The applicant argues under Article 11 of the Convention
that he was arrested and prosecuted for a solo demonstration, and that
even assuming that he did participate in a public assembly, such
assembly was justified as an immediate and peaceful response to the
imminent adoption of a controversial draft law. The applicant argues
under Article 6 of the Convention that the courts at both levels of
jurisdiction were not "established by law".
15. Application no. 42294/13 was lodged on 2 June 2013 by Yelena
Sergeyevna BELAN, who was born on 6 August 1961 and lives in
Rostov-on-Don.
On 3 September 2012 Ms Sviderskaya and Ms T. notified the local
authority of their intention to hold a public assembly from 4 p.m. to
5 p.m. on 15 September 2012 in Sovetov Square in Rostov-on-Don. Later
on, they and the other organisers decided not to hold the public
assembly (see application no. 42585/13 below).
The applicant submits that on 15 September 2012 she staged a solo
demonstration instead. Shortly after she had started, police officers
ordered her to stop the demonstration and issued a formal warning
against a violation of public order. According to the applicant, one
of the officers asked a passer-by, Mr Z., to hold her banner while she
was signing the warning. The events were recorded on video. Both the
applicant and Mr Z. were then arrested and taken to the police
station. No arrest record was compiled. The applicant remained in the
police station for some three hours and was then allowed to leave.
On an unspecified date, the case against the applicant was submitted
to the justice of the peace. She was accused of holding a public
assembly without giving prior notification to the local authority.
On 25 September 2012 the judge declared two photographs and a video
recording (apparently showing the events of 15 September 2012)
inadmissible in evidence owing to "the uncertainty as to who had taken
the photographs and made the recording, and where and when". At the
applicant's request, the judge ordered that the street camera footage
be obtained. On 7 October 2012 the city police department confirmed
that the recording existed and invited the judge to bring an
electronic storage device onto which it could be copied. However, on
18 October 2012 the on-duty police officer informed the judge that on
15 September 2012 the recording/archiving system and the cameras had
been out of order.
The justice of the peace heard officer A., who stated that on 15
September 2012 the police had taken photographs of what appeared to be
a public assembly of at least four people displaying banners. The
judge asked to see those photographs. The police department denied
that any photographs had been taken.
The judge also saw the (apparently edited) video recording made by the
police on 15 September 2012. It showed the applicant with a banner,
the applicant reading a piece of paper and a man (Mr Z.) holding a
banner above his head.
On 13 November 2012 the justice of the peace convicted the applicant
under Article 20.2 of the CAO and imposed a fine of RUB 20,000 on him.
The applicant appealed, arguing that the Public Assemblies Act
conferred on the regional authorities the power to determine the
minimum distance between solo demonstrations; since no such
specification had been issued in the Rostov region there was no legal
criterion for not treating people standing at some, even short,
distance from each other as solo demonstrators or, by implication, for
treating them as a public assembly. On 3 December 2012 the Leninskiy
District Court of Rostov-on-Don upheld the judgment. The District
Court established that several people, including Z., had been present
in the same place on 15 September 2012 and had been holding banners,
that the public nature of the situation and the number of people who
had been present sufficed to disclose a "public assembly", that the
applicant was the event organiser and that no prior notification of
the said assembly had been given by her.
The applicant lodged a criminal complaint, seeking the institution of
criminal proceedings against the police officers (Articles 149 and 286
of the Criminal Code concerning impediment to a public assembly and
abuse of power respectively). By a letter of 9 January 2013 the
Regional Prosecutor's Office dismissed her complaint.
The justice of the peace authorised that the fine be paid in three
instalments.
On 6 March and 20 May 2013 the Deputy President of the Rostov Regional
Court upheld the decisions of 13 November and 3 December 2012. The
applicant did not apply for further review of those court decisions
before the Supreme Court of Russia.
Complaints: The applicant complains under Articles 3 and 5 of the
Convention that she was unlawfully and arbitrarily deprived of her
liberty, that the public authorities stopped her solo demonstration
and imposed a heavy fine in breach of Articles 10 and 11 of the
Convention, and that the domestic law at the time did not specify that
any specific distance had to be maintained between unrelated solo
demonstrators. She also alleges that the requirements of fairness and
equality of arms were not respected in the domestic court proceedings.
16. Application no. 42585/13 was lodged on 4 June 2013 by Svetlana
Olegovna SVIDERSKAYA, who was born on 2 April 1949 and lives in
Rostov-on-Don.
On 3 September 2012 the applicant and Ms T. notified the local
authority of their intention to hold a public assembly from 4 p.m. to
5 p.m. on 15 September 2012 in Sovetov Square in Rostov-on-Don. On 5
September 2012 the authority suggested that, instead, the event be
held from 9.30 a.m. to 10.30 a.m. in the square in front of the City
Library. On 6 September 2012 the event organisers dismissed the
suggestion as unsuitable for the purposes of their assembly. On 12
September 2012 the authority insisted on their suggestion and refused
to make another one. Ms T. withdrew her request to hold the proposed
event.
The applicant claims that on 15 September 2012 from 1.30 p.m. to 2.45
p.m. she staged a solo demonstration instead. On her way back home,
she saw a man holding a banner, whom she approached in order to be
able to read the banner, which read "I will not give up my freedom of
choice, which is granted by God and the Constitution!". Immediately,
she was approached by a police officer, who ordered her to show her
own banner. She refused. The applicant was then taken to the police
station. After some five hours at the police station, she was allowed
to leave.
The applicant argued before the justice of the peace that at the time
of her arrest she had not been taking part in any public assembly or
holding a solo demonstration. On 9 November 2012 the judge convicted
her under Article 20.2 of the CAO for holding (проведение) a public
assembly without giving prior notice to the authorities. The court
concluded that in the circumstances of the case it was appropriate to
impose the minimum statutory fine of RUB 20,000 on her. On 6 December
2012 the Leninskiy District Court of Rostov-on-Don upheld the
judgment. The court considered that the justice of the peace had
imposed the minimum fine on account of the applicant's personal
circumstances. In an ancillary procedure, on 26 December 2012 the
justice of the peace allowed payment of the fine in three monthly
instalments (which is the best possible solution under Article 31.5 of
the CAO), namely, two instalments of RUB 7,000 and one of RUB 6,000.
The court took note of the fact that the applicant received a monthly
old-age pension of RUB 5,561. It was not specified whether she had any
other income.
The applicant lodged a criminal complaint, seeking the institution of
criminal proceedings against the police officers (Articles 149 and 286
of the Criminal Code). By a letter of 9 January 2013 the Regional
Prosecutor's Office dismissed her complaint.
In the meantime, the applicant sought supervisory review of the
decisions of 9 November and 6 December 2012, arguing, inter alia, that
she was in a precarious situation. She sought a reduction of the fine
below the statutory minimum, in accordance with the constitutional
ruling of 14 February 2013 (see "Relevant domestic law and practice").
On 6 March and 29 May 2013 the deputy President of the Rostov Regional
Court confirmed the judgments and the amount of the fine as "being
within the scope of the statutory requirement". On 10 January 2014 the
Supreme Court of Russia also confirmed the judgments.
Complaints: The applicant complains that the amount of the fine was in
breach of Article 3 of the Convention; under its Article 5 that she
was unlawfully and arbitrarily deprived of her liberty; and under
Articles 10 and 11 about the deprivation of liberty on that date and
imposition of a disproportionately high fine.
17. Application no. 61443/13 was lodged on 30 August 2013 by Eduard
Anatolyevich NIKOLAYEV, who was born on 21 January 1971 and lives in
Rostov-on-Don.
In early 2012 Ms B., headmistress of a public school and chairwoman of
the local electoral committee, removed the applicant from his position
as committee member.
Around 8 a.m. on 1 September 2012 the applicant stood in front of the
school distributing leaflets, expressing his negative opinion about
B.'s professional and personal qualities. The school staff called the
police. According to the applicant, he complied with the police 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, on reflection, he changed his
mind and came back. According to the applicant, officer T. then put
him in a painful armlock and handcuffed him, without any valid reason.
The applicant was taken to the police station where he remained for
some two hours. On the same day, the applicant was examined by a
doctor and received treatment for pain in the shoulder and bruises on
his wrists. The applicant sought the institution of criminal
proceedings against the officer. Those proceedings are pending.
The applicant was accused of disorderly behaviour (Article 20.1 of the
CAO). The outcome of this case is unclear.
In November 2012 the applicant brought proceedings challenging the
following actions on the part of the public authorities and officials
(Article 254 of the Code of Civil Procedure): 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; his taking to the police station; and his prosecution under
the CAO.
By a judgment of 5 April 2013 the Voroshilovskiy District Court of
Rostov-on-Don dismissed his claims. The court accepted the applicant's
submission that he had staged a static demonstration (пикетирование),
which consisted of distribution of leaflets. The court considered that
the applicant had attempted to flee during the identity check and had
been arrested (задержан), and that the use of force and handcuffs had
complied with the relevant regulations. Having summarised several
testimonies, the court concluded as follows:
"The police officers intended to put an end to the breach of public
order, consisting of [showing] disrespect to society. This disrespect
was accompanied by the use of coarse language in a public place [by
the applicant], imposing [himself] on citizens and refusing to obey an
order by a public official ... The police officers acted within their
powers and did not violate the applicant's rights. Nor did they cause
any impediment to the exercise of any such rights ..."
The applicant appealed, contending that the finding corresponded in
substance to the pending charge against him and the wording of Article
20.1 of the CAO, and thus violated his right to be presumed innocent.
Furthermore, in the applicant's submission, the court failed to
specify the factual details concerning his showing of "disrespect to
society", the contents and the alleged victims of the coarse language
allegedly used by him, the details of his "imposing on others" and
"the order by a public official" and the lawfulness of any such order.
On 17 June 2013 the Rostov Regional Court dismissed the appeal,
endorsing the reasoning of the first-instance judgment. The applicant
did not apply for further review of those court decisions.
Complaints: The applicant complains that the use of force and
handcuffs against him violated Article 3 of the Convention; that his
arrest was unlawful and arbitrary, in breach of Article 5 of the
Convention; under its Article 6 that the civil courts were biased,
unfair and violated the right to presumption of innocence; under
Articles 10 and 11 of the Convention about the stopping of his
leafleting, his taking to the police station, prosecution for an
administrative offence and the dismissal of his claims by the civil
courts.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Freedom of assembly and freedom of expression
The Constitution of Russia guarantees the right to freedom of peaceful
assembly and the right to hold meetings, demonstrations, marches and
pickets (Article 31); the freedom of thought and expression, as well
as the freedom to freely seek, receive, transfer and spread
information by any legal means (Article 29).
Article 149 of the Criminal Code penalises unlawful impediment by a
public official to a public meeting, demonstration, march or picket,
or to anyone's participation in it.
Article 286 of the Criminal Code penalises actions on the part of a
public official which clearly fall outside the scope of his competence
and constitute a serious violation of a person's rights or interests.
Procedure for the conduct of public events
(a) General provisions
Federal Law no. FZ-54 of 19 June 2004 on Gatherings, Meetings,
Demonstrations, Marches and Pickets ("the Public Assemblies Act"),
defines a public event (публичное мероприятие) as an open, peaceful
event accessible to all, organised on the initiative of Russian
citizens, political parties, other public associations or religious
associations. The aims of a public event are to express or develop
opinions freely and to voice demands on issues related to political,
economic, social or cultural life in the country, as well as issues
related to foreign policy (section 2(1)).
A public event may be held in any convenient location, provided that
it does not create a risk of building collapse or any other risks to
the safety of the participants. The access of participants to certain
locations may be banned or restricted in the circumstances specified
by federal laws (section 8(1)). Public events in the immediate
vicinity of a court are prohibited (section 8(2)).
No earlier than fifteen days and no later than ten days before the
intended public assembly, its organisers must notify the competent
regional or municipal authorities of the date, time, location or
itinerary and purposes of the assembly, its type, the expected number
of participants, and the names of the organisers. A notification in
respect of a picket involving several people must be submitted no
later than three days before the intended picket or, if the end of the
time-limit falls on a Sunday or a public holiday, no later than four
days before the intended picket (section 7(1) and (3)). A notification
of a public assembly is a document by which the competent authority is
informed, in accordance with the procedure established by this Act,
that an assembly will be held, so that the competent authority may
take measures to ensure safety and public order during the assembly
(section 2 (7)).
Upon receipt of such notification the competent regional or municipal
authorities must, inter alia:
1) confirm receipt of the notification;
2) provide the organisers of the assembly, within three days of
receiving the notification (or, in the case of a picket involving
several people, if the notification is submitted less than five days
before the intended picket, on the day of receipt of such
notification), with reasoned suggestions for changing the location
and/or time of the assembly, or for amending the purposes, type or
other arrangements if they are incompatible with the requirements of
this Act;
3) ensure, in cooperation with the organisers of the assembly and
representatives of the competent law-enforcement agencies, the
protection of public order and citizens' security, as well as the
administration of emergency medical aid if necessary (section 12(1)).
The competent regional or municipal authority may refuse to allow a
public assembly only if the person who has submitted the notification
is not entitled to organise a public assembly or if it is prohibited
to hold public assemblies at the location chosen by the organisers
(section 12(3)).
No later than three days before the intended date of the assembly
(this time-limit does not apply to pickets involving one person) the
organisers of a public assembly must inform the authorities in writing
whether or not they accept the authorities' suggestions for changing
the location and/or time of the assembly (section 5(4)(2)).
(b) Provisions on solo static demonstrations (solo "pickets")
The Public Assemblies Act defines a "picket" as a form of public
expression of opinion that does not involve movement or the use of
loudspeaker equipment, where one or more citizens with placards,
banners and other means of visual expression assemble near the target
object of the picket (section 2(6)).
No notification is required for gatherings or pickets involving one
person (section 7(1) and (3)). On 8 June 2012 the Public Assemblies
Act was amended. Under new subsection 1.1 in section 7 the distance
between solo demonstrators should be determined by the regional
statutes but should not exceed fifty metres. A court is empowered to
declare that several solo demonstrations, taken together, constitute a
single public event if they share the same goal and organisation
(ibid.).
In its ruling no. 4-P of 14 February 2013 the Russian Constitutional
Court noted that the absence of the notification requirement for solo
demonstrations excluded any State interference with such public
events, which could be held at any venue and at any time, unless
otherwise provided by the law. However, to avoid public assemblies
being disguised as solo demonstrations, the legislator imposed the
requirement that a minimum distance be kept between solo
demonstrators. This distance was to be specified by each region of
Russia but could not exceed fifty metres. This was aimed at ensuring
compliance with the notification requirement for assemblies. A court
may conclude that a given situation discloses a public assembly when
it is sufficiently clear that several, prima facie solo,
demonstrations have the same goal and organisation; that they are held
simultaneously and in close proximity; that their participants use
identical or similar visual support materials and put forward common
claims. The attention that a solo demonstration naturally attracts
does not deprive it of its solo nature. A court should establish the
existence of a common goal and organisation and should exclude the
possibility that several solo demonstrations have simply coincided.
The burden of proof rests with the authority or the official which
pursues civil, criminal or administrative offence proceedings against
the person concerned.
As regards the regional statutes on the distance between solo
demonstrators:
In the Rostov region, regional law no. 146-3C of 27 September 2004
complements the federal regulations on public gatherings. In December
2012 this law was amended to provide that the distance between solo
demonstrations should be no less than fifty metres (section 2 of the
law).
A similar law in Moscow (law no. 10 of 4 April 2007) has provided
since January 2013 for the same distance and specifies that
simultaneous demonstrations should be treated as solo demonstrations
provided that they do not have a common goal and organisation (section
2.3 of the law).
In the Tatarstan Republic, law no. 91-ZRT of 25 December 2012 provides
that the relevant distance should be no less than thirty metres
(section 8 of the law).
In the Sverdlovsk Region, law no. 102-FZ of 7 December 2012 provides
that the distance should attain or exceed forty metres (section 5 of
the law).
In the Astrakhan Region, law no. 80/2012-FZ of 27 November 2012 sets
the relevant distance at no less than twenty metres (section 4 of the
law).
B. Liability for violation of the rules on public assemblies
Before June 2012 a breach of the established procedure for the conduct
of public assemblies was punishable by a fine of 1,000 to 2,000
Russian roubles (RUB) for the organisers of the assembly, and from RUB
500 to 1,000 for the participants (Article 20.2 S:S: 1 and 2 of the
CAO).
On 8 June 2012 that Article was amended. The amended Article 20.2
provides that a breach of the established procedure for the conduct of
public assemblies committed by an organiser is punishable by a fine of
RUB 10,000 to 20,000 or up to forty hours of community work if the
organiser is a natural person, or by a fine of RUB 50,000 to 100,000
if the organiser is a legal person. The holding of a public assembly
without notification is punishable by a fine of RUB 20,000 to 30,000
or up to fifty hours of community work if the organiser is a natural
person, or by a fine of RUB 70,000 to 200,000 if the organiser is a
legal person. A breach by an organiser of the established procedure
for the conduct of public assemblies which causes the obstruction of
pedestrian or road traffic or leads to the maximum capacity of the
venue being exceeded is punishable by a fine of RUB 30,000 to 50,000
or up to a hundred hours of community work if the organiser is a
natural person, or by a fine of RUB 250,000 to 500,000 if the
organiser is a legal person. A breach by an organiser of the
established procedure for the conduct of public assemblies which
causes damage to someone's health or property, provided that it does
not amount to a criminal offence, is punishable by a fine of
RUB 100,000 to 300,000 or up to two hundred hours of community work if
the organiser is a natural person, or by a fine of RUB 400,000 to
1,000,000 if the organiser is a legal person. A breach of the
established procedure for the conduct of public assemblies committed
by a participant is punishable by a fine of RUB 10,000 to 20,000 or up
to forty hours of community work. A breach by a participant of the
established procedure for the conduct of public assemblies which
causes damage to someone's health or property, provided that it does
not amount to a criminal offence, is punishable by a fine of
RUB 150,000 to 300,000 or up to two hundred hours of community work.
In its ruling no. 4-P of 14 February 2013 the Constitutional Court
declared unconstitutional the minimum statutory fines (in particular
under Article 20.2 of the CAO) in so far as the relevant provisions of
the CAO did not allow imposition of a fine below the minimum fine,
which would correspond to a proper consideration of the nature of the
offence, the financial situation of the person or other factors
relating to the individualisation of the penalty and to the
requirements of proportionality and fairness. The Constitutional Court
required the legislator to amend the CAO accordingly. Until that time
the courts are instructed to consider the possibility of imposing a
fine below the minimum statutory fine.
Refusal to obey a lawful order or request of a police officer is
punishable by an administrative fine of RUB 500 to 1,000 or up to
fifteen days' administrative detention (Article 19.3 of the Code).
Non-payment of an administrative fine is punishable with a doubled
fine or up to fifteen days' administrative detention (Article 20.25 of
the Code).
C. Fairness and procedural guarantees in cases concerning
administrative offences
1. Equality of arms and adversarial proceedings under the CAO
Article 1.5 of the CAO provides for the presumption of innocence. The
official or court dealing with an 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).
The Constitutional Court stated that Articles 118 S: 2 and 123 S: 3 of
the Russian Constitution provided that the principles of equality of
arms and adversarial procedure should apply in court proceedings,
including under the CAO. While those constitutional guarantees apply
in cases examined (directly) by courts, they do not apply in cases
examined by non-judicial authorities or officials (decision no. 630-O
of 23 April 2013 by the Russian Constitutional Court). However, the
person concerned may seek judicial review of their decisions; such
review proceedings should provide for equality of arms and adversarial
procedure (ibid.).
Article 25.1 S: 4 of the CAO provides that a person prosecuted under
the CAO is entitled to study the case-file materials, to make
submissions, to adduce evidence, to lodge motions and challenges, and
to have legal assistance. The Constitutional Court considered that
those guarantees enabled the person concerned to refute, in the course
of court proceedings, the information contained in case file, for
instance in the offence record (протокол об административном
правонарушении), thereby exercising his or her right to judicial
protection based on the principle of adversarial procedure (decision
no. 925-O-O of 17 June 2010).
The Constitutional Court held, in relation to the Code of Criminal
Procedure, that requiring or allowing a court to take over the
functions normally attributed to a prosecuting authority contradicted
Article 123 of the Constitution and impeded independent and impartial
administration of justice (see, among others, ruling no. 16-P of 2
July 2013).
Article 30.6 of the CAO provides for an appeal against the
first-instance judgment. The appeal court is required to examine the
existing and new evidence in the case file, and to provide a full
review of the case.
2. Relevant provisions of the Code of Commercial Procedure
In certain circumstances, administrative offence cases should be
examined following the procedure set out by the Code of Commercial
Procedure.
Articles 8 and 9 of the Code provide for equality of arms and
adversarial procedure.
Article 65 of the Code provides that each party to the proceedings
should prove the circumstances to which he or she refers as a basis
for his or her claims.
Article 205 of the Code requires the authority which compiled the
administrative offence record to prove the related factual and legal
circumstances it is based on. The person being prosecuted for an
administrative offence does not bear the burden of proof in this
respect.
D. Escorting a person to the police station, arrest and other
coercive or preventive measures
Under the old Police Act (Federal Law no. 1036-I of 18 April 1991) the
police were empowered to carry out administrative arrest.
Under the current Police Act (Federal Law no. 3-FZ of 7 February 2011)
the police are empowered to check an individual's identity documents
where there are reasons to suspect the person of a criminal offence or
if his or her name is on a wanted 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. The police are
empowered to take fingerprints, to take photographs or make video
recordings of an arrestee suspected of a criminal offence or if it was
not possible to properly identify the arrestee during the arrest
(section 13 of the Act).
In exceptional circumstances relating to the need for a proper and
expedient examination of an administrative case, the person concerned
may be placed under administrative arrest (административное
задержание) (Article 27.3 of the CAO). The arrestee should be informed
of his rights and obligations; this notification should be mentioned
in the arrest record. The duration of such administrative arrest must
not normally exceed three hours. Administrative arrest for a longer
period, not exceeding forty-eight hours, is permissible only for
persons subject to administrative proceedings concerning an offence
punishable by administrative detention or offences involving unlawful
crossing of the Russian border. This term starts to run as soon as the
person has been escorted to the police station in accordance with
Article 27.2 of the Code (Article 25.5 of the Code). The
Constitutional Court has ruled that such arrest amounts to
"deprivation of liberty" as it is understood by the European Court
within the meaning of Article 5 S:1(c) of the Convention (Ruling
no. 9-P of 16 June 2009).
The CAO also authorises the competent authorities to compel a person
to follow the competent officer, for instance to a police station, for
the purposes of compiling an administrative offence record when it
cannot be done on the spot (административное доставление) (Articles
27.1 and 27.2 of the CAO). The Constitutional Court has held that this
measure of compulsion, which amounts to a temporary restriction of a
person's freedom of movement, should be applied only when it is
necessary and within short timeframes. Referring to the notion of
"deprivation of liberty" under Article 5 of the Convention, the
Constitutional Court has ruled that the relevant criteria relating to
Article 5 of the Convention are "fully applicable" to the measure
(Decision no. 149-O-O of 17 January 2012).
COMMON QUESTIONS
1. (a) Do the circumstances of each case (for instance, the order to
stop the demonstration, taking the applicant to the police station,
prosecution under Articles 19.3, 20.1 or 20.2 of the Code of
Administrative Offences), taken separately or cumulatively, disclose
interference with the applicants' freedom of expression under Article
10 S: 1 of the Convention, including the freedom to receive and impart
information and ideas?
(b) Was this interference prescribed by law? At the time of the
events and ensuing proceedings in each case (and a fortiori in the
cases before 2012), did the domestic law and judicial practice allow a
clear distinction to be drawn between simultaneous solo "pickets" and
a public assembly such as a group "picket" (for instance, on account
of a certain distance between demonstrators or the criterion of the
events having "a common goal and organisation")? If not, was the
"quality of law" adversely affected?
(c) Did the interference pursue a legitimate aim?
(d) Was the interference "necessary in a democratic society" and
proportionate to the legitimate aim pursued? Were the reasons adduced
by the national authorities to justify the interference "relevant and
sufficient"? Did the national authorities apply standards which were
in conformity with the principles embodied in Article 10 of the
Convention, where appropriate, considered in the light of its Article
11? Did the authorities base their decisions on an acceptable
assessment of the relevant facts, for instance when assessing the
coarse language imputed to some of the applicants, the content of the
leaflets distributed by some of them, or the contents and lawfulness
of the police orders which some of the applicants disobeyed?
2. Assuming that certain applicants did organise or participate in a
peaceful public assembly, did the authorities' putting an end to
(their participation in) the public assembly, the taking of the
applicants to the police station and, in some cases, their prosecution
on the sole ground of failing to observe the notification requirement
constitute a disproportionate interference with their freedom of
assembly under Article 11 of the Convention? When finding the
applicants guilty and when imposing penalties such as fines or
administrative detention, did the courts ponder the gravity of the
offence and the consequences it entailed, such as serious obstruction
of traffic, damage to property or similar?
3. Were the applicants "deprived of liberty" within the meaning of
Article 5 of the Convention (cf. M.A. v. Cyprus, no. 41872/10, S:S:
185-95, ECHR 2013 (extracts), and Gahramanov v. Azerbaijan (dec.),
no. 26291/06, 15 October 2013)? Did such deprivation of liberty fall
within the scope of one or several subparagraphs of Article 5 S: 1 of
the Convention?
If so, was the entire period (complained of) lawful and "in accordance
with a procedure prescribed by law"? In particular:
- Was it properly recorded as "escorting to the police station"
(административное доставление) (Articles 27.1 and 27.2 of the CAO)?
Was it necessary for the relevant statutory purpose (the compiling of
an administrative offence record because this could not be done on the
spot) and reasonable as to its duration (decision no. 149-O-O of 17
January 2012 by the Constitutional Court)?
- Was it properly recorded as administrative arrest (административное
задержание) under Article 27.3 of the CAO? Were the statutory
requirement of "exceptional circumstances" and the statutory purpose
(the need for a proper and expedient examination of the administrative
case) (see ruling no. 9-P of 16 June 2009 by the Constitutional Court)
respected?
- Was it properly recorded as "escorting" (i.e. to the police station
or other) under section 11 of the old Police Act (Federal Law no.
1036-I of 18 April 1991) or section 13 of the current Police Act
(Federal Law no. 3-FZ of 7 February 2011)? Was the deprivation of
liberty effected in order to decide whether the applicants should be
arrested, since such decision could not be taken on the spot?
Alternatively, do the circumstances of the cases disclose restrictions
on the applicants' freedom of movement, in breach of Article 2 of
Protocol No. 4?
ADDITIONAL CASE-SPECIFIC QUESTIONS
44135/08:
Did the proceedings before the Deputy President of the Supreme Court
of the Tatarstan Republic concern the "determination of the criminal
charge" against the applicant? If so, was Article 6 of the Convention
violated on account of the dismissal of the applicant's
supervisory-review appeal by way of a letter dated 8 July 2008?
2886/09, 7941/09:
Regard being had to the findings of the domestic courts, was there a
violation of Article 5 S: 5 of the Convention? Alternatively, was
there a violation of Article 13 taken in conjunction with Article 2 of
Protocol No. 4?
40377/10:
1. Assuming Article 6 of the Convention was applicable to the
proceedings under the CAO:
- Was the impartiality requirement respected in this case, in
particular on account of the absence of any prosecuting authority and
the role of the judge in these circumstances (see, by way of
comparison, Ozerov v. Russia, no. 64962/01, S:S: 52-57, 18 May 2010,
and Blum v. Austria, no. 31655/02, S:S: 36-38, 3 February 2005)? Did
the same situation obtain on appeal? Were the principle of equality of
arms and the requirement of adversarial procedure applicable and
actually respected in the present case? If yes, how? What was the
procedural role of the authority and public official who compiled the
administrative offence record under the CAO?
- Was the applicant afforded an adequate opportunity to defend
himself in person and to receive legal assistance at any stage of the
proceedings? Having regard to various relevant factors (for instance,
the seriousness of the offence, the severity of the possible
sentences, the complexity of the case and the personal situation of
the accused), did the interests of justice require that legal
assistance be provided free of charge? If so, was there a violation of
Article 6 of the Convention?
2. Noting the applicant's conviction under Article 20.2 of the CAO,
does he have standing to raise a complaint under Article 10 of the
Convention, as well as its Article 11?
57569/11:
1. Has the applicant lost victim status in respect of his complaint
concerning his taking to the police station on 30 July 2010? If not,
was there a violation of Article 5 S: 1 of the Convention or Article 2
of Protocol No. 4?
2. Was there a violation of Article 5 S: 5 of the Convention?
Alternatively, was there a violation of Article 13 taken in
conjunction with Article 2 of Protocol No. 4?
66314/11:
1. Does the applicant have standing to complain about the length of
the proceedings under the CAO and the Code of Criminal Procedure (see
section (c) for application no. 66314/11 in "Facts") (cf. Biro v.
Slovakia (no. 2), no. 57678/00, S:S: 37-45, 27 June 2006)? If yes, has
he lost victim status in relation to his complaint about the length of
those proceedings (court decisions of 27 January and 11 April 2011)?
If not, was there a violation of Article 6 S: 1 of the Convention?
2. Was there a violation of Article 5 S: 5 of the Convention (see
section (a) for application no. 66314/11 in "Facts")? Alternatively,
was there a violation of Article 13 taken in conjunction with Article
2 of Protocol No. 4?
23944/13:
Was there a violation of Article 5 S: 5 on account of the refusal to
award compensation (decisions of 22 November and 14 December 2012)?
Alternatively, was there a violation of Article 13 taken in
conjunction with Article 2 of Protocol No. 4?
35000/13 and 35010/13:
1. Was the criminal limb of Article 6 of the Convention applicable in
the proceedings under the CAO, having regard, inter alia, to the
nature and gravity of the statutory penalties, such as a fine and
compulsory community service, and the individual circumstances of the
cases, such as recourse to the arrest procedure under the CAO
(административное задержание) in respect of the applicants? If so:
- Were the applicants' cases examined by courts which were
"established by law" as required under Article 6 S: 1 of the
Convention?
- Was the impartiality requirement respected, in particular on
account of the absence of any prosecuting authority and the role of
the judge in these circumstances (see, by way of comparison, Ozerov v.
Russia, no. 64962/01, S:S: 52-57, 18 May 2010, and Blum v. Austria,
no. 31655/02, S:S: 36-38, 3 February 2005)? Did the same situation
obtain on appeal? Were the principle of equality of arms and the
requirement of adversarial procedure applicable and actually respected
in the present cases? If yes, how? What was the procedural role of the
authority and public official who compiled the administrative offence
record under the CAO?
2. Assuming that the applicants did participate in a public assembly
on the relevant date, did the circumstances of each case disclose a
violation of Articles 10 and 11 of the Convention, in particular
bearing in mind the alleged spontaneous nature of the assembly (see
Eva Molnar v. Hungary, no. 10346/05, S:S: 36-38, 7 October 2008)?
37038/13:
1. Was the applicant's case examined by courts which were
"established by law" as required under Article 6 S: 1 of the
Convention?
2. Assuming that the applicant did participate in a public assembly
on the relevant date, did the circumstances of the case disclose a
violation of Articles 10 and 11 of the Convention, in particular
bearing in mind the alleged spontaneous nature of the assembly (see
Eva Molnar v. Hungary, no. 10346/05, S:S: 36-38, 7 October 2008)?
42294/13:
Was there a violation of Article 6 S:S: 1 and 3 of the Convention on
account of the decisions or omissions in relation to the disclosure
and examination of the video and photo evidence in the applicant's
case? Was the applicant afforded an adequate opportunity to put
forward her defence?
42585/13:
Noting the amount of the fine, the requirements of Articles 31.5 and
20.25 of the CAO (up to three instalment payments and prosecution for
non-payment, respectively), the applicant's precarious situation and
the constitutional ruling of 14 February 2013, was there a violation
of Article 3 of the Convention in respect of the applicant (cf. Budina
v. Russia (dec.), no. 45603/05, 18 June 2009)?
61443/13:
1. Was the applicant subjected to inhuman or degrading treatment, in
breach of Article 3 of the Convention, on 1 September 2012?
2. Was Article 6 S: 1 of the Convention under its civil head
applicable to the proceedings, which ended with the court decisions of
5 April and 17 June 2013 (cf. Laidin v. France (no. 2), no. 39282/98,
S: 76, 7 January 2003, and Slyusar v. Ukraine, no. 34361/06, S: 20, 8
March 2012)? If so, did the applicant have a fair hearing in the
determination of his civil rights and obligations, in accordance with
Article 6 S: 1 of the Convention?
3. Having regard to the findings of the civil courts, was there a
violation of Article 6 S: 2 of the Convention?
APPENDIX
No.
Application
no.
Lodged on
Applicant's name
and date of birth
1.
25501/07
27/04/2007
Marina Viktorovna NOVIKOVA
28/02/1972
*
2.
44135/08
31/07/2008
Denis Viktorovich MATVEYEV
10/12/1977
*
3.
2886/09
06/11/2008
Vyacheslav Aleksandrovich BASHKOV
20/05/1977
*
4.
7941/09
19/12/2008
Gleb Vadimovich EDELEV
25/05/1969
*
5.
40377/10
19/06/2010
Aleksandr Vladimirovich ZAKHARKIN
01/08/1961
*
6.
57569/11
26/08/2011
Yuriy Ignatyevich MATSNEV
27/10/1937
*
7.
66314/11
07/10/2011
Aleksandr Alekseyevich DEMIN
27/06/1954
*
8.
80153/12
10/11/2012
Viktor Mikhaylovich SAVCHENKO
18/10/1967
*
9.
5790/13
30/11/2012
Aleksandr Mikhaylovich KIRPICHENKO
18/07/1984
10.
23944/13
25/02/2013
Nina Tagirovna BELYAYEVA
09/06/1956
*
11.
35000/13
20/05/2013
Filipp Igorevich TSUKANOV
19/12/1984
12.
35010/13
20/05/2013
Artem Aleksandrovich TORCHINSKIY
28/06/1979
13.
35015/13
20/05/2013
Valeriy Leonidovich ROMAKHIN
30/07/1965
14.
37038/13
20/05/2013
Igor Aleksandrovich TARASOV
16/09/1980
15.
42294/13
02/06/2013
Yelena Sergeyevna BELAN
06/08/1961
*
16.
42585/13
04/06/2013
Svetlana Olegovna SVIDERSKAYA
02/04/1949
*
17.
61443/13
30/08/2013
Eduard Anatolyevich NIKOLAYEV
21/01/1971
*
^Approx. 29 euros (per Bank of Russia rate on the relevant date)
^Approx. EUR 149
^apprx. EUR 123 and EUR 49
^Approx. EUR 505
26 NOVIKOVA v. RUSSIA AND OTHER APPLICATIONS -
STATEMENT OF FACTS AND QUESTIONS
NOVIKOVA v. RUSSIA AND OTHER APPLICATIONS -
STATEMENT OF FACTS AND QUESTIONS 25
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