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Судебное дело "Басок против России"


ЕСПЧ начал рассматривать дело о нападении действующего начальника ГИБДД Свердловской области Юрия Демина на журналиста Юрия Баска, которому главный облгаишник разбил фотокамеру и лицо (текст коммуникации дела 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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