Судебное дело "Басок против России"
03.07.2017
Communicated on 15 May 2017
THIRD SECTION
Application no. 10252/10
Yuriy Borisovich BASOK
against Russia
lodged on 24 January 2010
STATEMENT OF FACTS
The applicant, Mr Yuriy Borisovich Basok, is a Russian national, who
was born in 1969 and lives in Zarechnyy. He is represented before the
Court by Mr Anton Leonidovich Burkov and Mr Vladimir Yakovlevich
Kapustin, lawyers practising in Yekaterinburg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Events on 8 January 2009 and related proceedings
On 8 January 2009, acting as a freelance journalist for an Internet
news portal, the applicant was present at the venue of a public
protest against an increase in the tax on foreign imported vehicles.
Seeing Mr D., a senior official of the traffic police in charge of
supervising the event, park his vehicle at a pedestrian crossing, the
applicant or some other journalists present at the event venue made
video recordings and took photographs of the vehicle.
Allegedly, Mr D., inter alia, slapped the applicant in the face, tried
to strangle him, and damaged his photo camera. According to the
applicant, this was seen by other officers and journalists. The matter
received some media coverage.
It appears that on 23 January 2009 the applicant applied to bring a
private criminal prosecution for battery and insulting behaviour
against D., but this application was turned down since at the time a
criminal investigation was already pending (see below).
On 27 January 2009 the authorities opened a criminal investigation
against D. in respect of the offences of wilful damage to property and
abuse of power by a public official (Article 167 and of the Criminal
Code). The applicant was given victim status in the criminal case and
also lodged civil claims against D. The case was submitted for trial
before the Verkh-Isetskiy District Court of Yekaterinburg in October
2009. In December 2009 the prosecutor dropped the charges, stating
that there was insufficient evidence. On 21 December 2009 the judge
validated this decision, referring to Article 246 of the Code of
Criminal Procedure, and discontinued the case for lack of corpus
delicti. On 3 February 2010 the Sverdlovsk Regional Court upheld the
judgment, noting that the dropping of charges inevitably resulted in a
judicial decision to discontinue a criminal case.
The applicant again attempted to bring a private prosecution against
D. for battery and insulting behaviour (under Articles 116 and 130 of
the Criminal Code). On 27 January 2010 a justice of the peace refused
to examine the case because D. had already been subject to criminal
prosecution in respect of the same accusation (обвинение) relating to
the same facts and a decision on it had been delivered on 21 December
2009. On 28 June 2010 the District Court upheld the decision of 27
January 2010. On an unspecified date, the Regional Court dismissed a
cassation appeal lodged by the applicant.
The applicant lodged a constitutional complaint challenging
Article 246 of the Code of Criminal Procedure. By decision
no. 1711-O-O of 16 December 2010 the Constitutional Court of Russia
declined to hear this complaint, noting that while a public
prosecutor's decision to drop charges did entail the discontinuation
of a criminal case, it did not prevent the person concerned from
lodging a separate civil claim later on and from securing the
examination of such claim.
B. Events on 31 January 2009 and related proceedings
At 11.30 a.m. on 31 January 2009 the applicant and two others were
stopped by the police and then taken to a police station while they
were apparently on their way to take part in a public event in the
form of a meeting (митинг) organised by the local branch of the
Communist Party that was scheduled to start at 1 p.m. According to the
applicant, it was explained to him that he had been stopped because
his appearance matched the description of a suspect in an unspecified
robbery.
The police searched the applicant and seized several leaflets from a
batch (entitled "Trust yourself, not the authorities", "The Government
- to be dissolved", and "A call to the police") that the applicant had
in his bag, as well as an edition of a newspaper, People's Friend.
The applicant was released two and a half hours later, after the end
of the public event. No arrest record or other record was compiled in
relation to the robbery or any other offence.
The police submitted the leaflets to the anti-extremism unit of the
Department of the Interior. The latter ordered a linguistic expert
report, which concluded that the leaflets contained incitements to
racial, religious, ethnic and other hatred. The report furthermore
concluded that both the leaflet entitled "Trust yourself, not the
authorities" and the newspaper contained calls to get ready for
difficult times and thus fostered a "depressive attitude", which in
turn incited social enmity between different groups of the population.
Overall, the material reflected the ideology promoted by the so-called
National Bolshevik Party (Национал-большевистская партия), a
prohibited organisation.
On 27 February 2009 the authorities refused to initiate criminal
proceedings in respect of charges of extremism because the
above-mentioned materials had not been disseminated.
In February 2009 the applicant instituted court proceedings,
challenging his arrest. The applicant argued as follows:
- the real purpose of his being taken to the police station had been
to prevent him from taking part in the demonstration and from
distributing leaflets; at the police station he had not been
interviewed in relation to any robbery and no related investigative
measures had been carried out - instead, he had been "dealt with" by
officers of the anti-extremism unit of the Department of the Interior;
- the police had not compiled a written record in respect of his
deprivation of liberty.
The police submitted to the court a list containing descriptions of
several dozen alleged robbers.
On 13 July 2009 the Kirovskiy District Court of Yekaterinburg
delivered a judgment. Having given a long summary of the
anti-extremist legislation and the authorities' actions in relation to
the applicant's leaflets, the court concluded that the applicant had
been subject to the escort procedure (доставление) under Article 27.2
of the Code of Administrative Offences ("the CAO") and that the use of
this procedure had been lawful since the police had stated that the
applicant had matched the description(s) of suspects issued in the
course of pending robbery investigation(s). However, the court
considered that the failure to compile an escort record had been
unlawful. Lastly, the court summarily dismissed the remainder of the
claims as unsubstantiated.
The applicant appealed, arguing, inter alia, that he had not been
accused or suspected of any administrative offence; thus, it had been
unlawful to use the escort procedure under the CAO since his taking to
the police station could and did not pursue the statutory aim of
compiling an administrative offence record; in any event, this finding
contradicted the authorities' explanation regarding his resemblance to
a robber.
On 20 October 2009 the Sverdlovsk Regional Court upheld the judgment,
endorsing its reasoning.
The Kirovskiy district prosecutor's office instituted court
proceedings, seeking to have the leaflets declared to be extremist
material. It appears that at least two court hearings were held in
March 2010. The outcome of the case is unclear.
COMPLAINTS
Regarding the events of 8 January 2009, the applicant complains that
the respondent State should be held liable for a violation of Article
10 of the Convention in relation to his mistreatment by an on-duty
public official while he (that is to say the applicant) was gathering
material intended to be used for news reporting. The applicant also
complains that the damage caused to his camera amounted to a violation
of Article 1 of Protocol No.1 to the Convention. Lastly, he argues
that he was deprived of effective remedies in relation to the above
violations in view of the biased and arbitrary decision to drop the
charges and the courts' inability to oppose this decision, thereby
rendering impossible criminal and civil liability on the part of the
official responsible or the State.
Furthermore, the applicant complains under Article 5 of the Convention
that on 31 January 2009 he was subjected to an unlawful and arbitrary
deprivation of liberty with the sole purpose of preventing him from
participating in the public event and from distributing leaflets; that
the arbitrary findings reached by judicial review proceedings barred
him from claiming compensation in relation to this deprivation of
liberty.
QUESTIONS TO THE PARTIES
Regarding the events of 8 January 2009:
1.1. Has there been an interference with the applicant's freedom of
expression (in particular his right to receive and impart information
and ideas) within the meaning of Article 10 S: 1 of the Convention? If
so, was that interference prescribed by law and necessary in terms of
Article 10 S: 2?
1.2. Was there a violation of Article 1 of Protocol No.1 to the
Convention in respect of the damage caused to the applicant's property
by an on-duty public official?
1.3. Did the applicant have at his disposal an effective domestic
remedy for his above-mentioned complaints, as required by Article 13
of the Convention (compare Abakarova v. Russia, no. 16664/07, S: 104,
15 October 2015; and Denis Vasilyev v. Russia, no. 32704/04, S: 136,
17 December 2009)?
Regarding the events of 31 January 2009:
2.1. Was the applicant deprived of his liberty on 31 January 2009, in
breach of Article 5 S: 1 of the Convention? In particular, did that
deprivation of liberty fall within any of the sub-paragraphs of this
provision (compare Ostendorf v. Germany, no. 15598/08, S:S: 63-105, 7
March 2013)? Was the applicant's detention "in accordance with a
procedure prescribed by law" or arbitrary? Was the applicant suspected
of any administrative offence when taken to the police station on that
date?
2.2. Did the applicant have an effective and enforceable right to
compensation for his unlawful and arbitrary detention, as required by
Article 5 S: 5 of the Convention?
4 BASOK v. RUSSIA - STATEMENT OF FACTS AND QUESTIONS
BASOK v. RUSSIA - STATEMENT OF FACTS AND QUESTIONS 3
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