Постановление ЕСПЧ от 05.01.2016 <Дело Фрумкин (Frumkin) против России> (жалоба N 74568/12) [англ.] Часть 5

1   2   3   4   5

  1. It appears that the mediators had some high-ranking interlocutors on the police side. The Ombudsman was talking to colonel Biryukov. According to the security plan, on 6 May 2012 he was responsible for «co-ordination with the representatives of public organisations and also co-ordination and information flow with other services of the Moscow Department of the Interior» (see paragraph 21 above). However, colonel Biryukov told the Ombudsman that the decision about the police cordon was outside his powers (see the testimonies of Ms Mirza and Mr Vasiliev, paragraphs 57 and 59 above). The deputies, Mr G. Gudkov and Mr D. Gudkov had apparently spoken to Mr Gorbenko, the Deputy Mayor; they did not identify the police officers to whom they had also spoken, but they claimed to have achieved a different result from the Ombudsman.
  2. The documents available in the case file do not disclose the identity of the official who took the decision as regards the cordon, or what the decision actually was. According to the security plan, the relevant segment of the cordon belonged to «Zone no. 8» under the command of police colonel Smirnov with nine officers as his deputies (listed in paragraph 22 above). However, it is not clear whether he had the authority to negotiate with the assembly organisers or to alter the position of the cordon stipulated in the security plan. Police colonel Deynichenko was in charge of the overall command of the security operation; on 4 May 2012 he took part in the working meeting, and on 6 May 2012 after the assembly he drew up a report on the implementation of the security plan. However, there is no information as to whether he was involved in the negotiations with the sit-in leaders or whether he gave any orders concerning the cordon.
  3. The Court notes that another official, colonel Makhonin, played an active role in policing the event. Before the march he met the assembly organisers for a final briefing, gave them instructions and had them sign a formal undertaking against any breach of public order. He also indicated to the organisers that he was their emergency contact and instructed them to call him for any outstanding public order issues.
  4. It is unknown whether Mr Udaltsov tried to call colonel Makhonin during the standoff. Likewise, the Court is unable to verify the testimonies of Mr Davidis that he tried to call Mr Deynichenko. The domestic courts did not rule on those points, and no relevant evidence has been presented to the Court. In any event, the senior police officers had ample opportunity to contact the organisers by telephone and to personally approach the sit-in participants by simply walking a few metres. Mr Makhonin, for his part, testified that he had not tried to call Mr Udaltsov until he arrived at Bolotnaya Square «after the mass disorder had already begun» (see paragraph 63 above). Given that the first incident occurred a few minutes after the sit-in had ended, this means that he did not call Mr Udaltsov during the sit-in and was away from Bolotnaya Square while it lasted. At 6 p.m. he appeared in the stage area, where he instructed Ms Mityushkina to end the assembly (see paragraphs 131 et seq. below).
  5. It is noteworthy that Mr Makhonin’s official function in relation to the assembly at Bolotnaya Square has not been specified. His name did not appear on the security plan among hundreds of named police officials personally responsible for various tasks, including checking the bins, apprehending offenders, video recording and press relations. He was not a member of the operational headquarters either. According to the security plan, it was colonel Smirnov’s and colonel Saprykin’s task to personally meet the organisers before the beginning of the march in order to brief them and to have them sign the undertakings (see paragraph 22 above), although in practice it was colonel Makhonin who did it.
  6. It is also peculiar that the security plan did not assign an officer to liaise with the assembly organisers, although it specifically designated officers for liaising with civil society organisations and with the press (see paragraph 21 above). As it happened, colonel Makhonin exercised some operational functions in relation to the assembly organisers, but without knowing the limits of his mandate it is impossible to tell whether he had the authority to decide on the cordon manoeuvre or to negotiate with the sit-in leaders.
  7. The Court has found above that the march leaders were taken by surprise because of the substantial restriction of space for the meeting, since the police cordon at Malyy Kamennyy bridge excluded a significant part of the venue as originally agreed. In the face of that situation, instead of proceeding to the place available in front of the stage, they began a sit-in which aggravated the congestion (see paragraphs 114 and 117 above). In the Court’s view, the controversy about the placement of the police cordon could reasonably have been dealt with had the competent officials been prepared to come forward in order to communicate with the assembly organisers and to discuss the placement of the cordon with them. Their involvement could have alleviated the tensions caused by the unexpected change of the venue layout and could have helped avoid the standoff and the consequent discontent on the part of the protestors.
  8. The Court’s findings in the foregoing paragraphs lead to the conclusion that the police authorities had not provided for a reliable channel of communication with the organisers before the assembly. This omission is striking, given the general thoroughness of the security preparations for anticipated acts of defiance on the part of the assembly leaders. Furthermore, the authorities failed to respond to the real-time developments in a constructive manner. In the first fifteen minutes after the march’s arrival at Malyy Kamenny bridge, no official took any interest in talking to the march leaders showing signs of distress in front of the police cordon. Eventually, when the sit-in began, they sent the Ombudsman with a message to the leaders to stand up and move on, which provided no answer to the protestors’ concerns. Whether or not the senior police officers beyond the cordon had initially understood the demands of the sit-in leaders, nothing prevented them from immediately clarifying the issue and from giving them a clear answer.
  9. In the light of the foregoing, the Court finds that in the present case the authorities made insufficient effort to communicate with the assembly organisers to resolve the tension caused by the confusion about the venue layout. The failure to take simple and obvious steps at the first signs of the conflict allowed it to escalate, leading to the disruption of the previously peaceful assembly.
  10. The Court has already referred to the Venice Commission’s Guidelines on Freedom of Peaceful Assembly, which recommends negotiation or mediated dialogue if a standoff or other dispute arises during the course of an assembly as a way of avoiding the escalation of conflict (see guideline 5.4, paragraph 80 above). It considers, however, unnecessary to define in relation to the Guidelines or otherwise the standard required. The Court considers that on any view the authorities in this case did not comply with even the minimum requirements in their duty to communicate with the assembly leaders, which was an essential part of their positive obligation to ensure the peaceful conduct of the assembly, to prevent disorder and to secure the safety of all the citizens involved.
  11. The authorities have thus failed to discharge their positive obligation in respect of the conduct of the assembly at Bolotnaya Square. There has accordingly been a violation of Article 11 of the Convention on that count.

(ii) Termination of the assembly and the applicant’s arrest, detention and charges

  1. At the end of the negotiations the position of the police cordon remained unchanged; it was only reinforced by the riot police. The subsequent events developed simultaneously on two opposite sides of Bolotnaya Square. Congestion occurred at Malyy Kamenny bridge at 5.50 p.m., at which point the protestors ended the sit-in and left for the stage. At 5.55 p.m. the pressure of the crowd caused the cordon to break for the first time, but it was quickly restored without the use of force, and in the next few minutes protestors from among the crowd began tossing various objects at the police cordon, including a Molotov cocktail. At the same time, at 6 p.m., at the far end of Bolotnaya Square Ms Mityushkina, acting on the instructions of colonel Makhonin, announced from the stage that the meeting was closed. In the next fifteen minutes several confrontations took place between the protestors and the police at Malyy Kamenny bridge, until at 6.15 p.m. the police began expansive action to disperse the crowd there.
  2. The Government did not specify whether it was colonel Makhonin who took the decision to terminate the assembly or whether he was following orders. It is also unclear exactly what prompted that decision, although some witnesses suggested that it was because of the sit-in. The fact that at 5.55 p.m. the authorities were threatening the assembly leaders with criminal sanctions corroborates that hypothesis (see paragraph 34 above). It is clear, in any event, that at 6 p.m. when the announcement was made, the crowd had built up, and there had been squeezing and pushing and isolated incidents of small-scale aggression at the cordon of Malyy Kamenny bridge, but no widespread disorder or intensive fighting.
  3. It does not appear that the assembly was suspended before being terminated, as required by section 15.3 of the Public Assemblies Act. According to the authorities, at that stage it was justified to announce an emergency termination under section 17.3, which curtails the termination procedure in the event of mass disorder. The Court considers that irrespective of whether the domestic qualification of «mass disorder» had been met, the tensions were still localised at Malyy Kamenny bridge while the rest of the venue remained calm. The authorities have not shown that prior to announcing the whole meeting closed they had attempted to separate the turbulent sector and target the problems there, so as to enable the meeting to continue in the sector of the stage where the situation remained peaceful. The Court is therefore not convinced that the termination of the meeting at Bolotnaya Square was inevitable.
  4. However, even assuming that the decision to terminate the assembly was taken because of a real and imminent risk that violence would spread and intensify, and that the authorities acted within the margin of appreciation which is to be allowed in such circumstances, such decision could have been implemented in different ways and using various methods. Given the diversity in the circumstances of the individual protestors, in particular the degree of their involvement or their non-involvement in clashes and the wide range of consequences incurred, it is impossible to give a general assessment of the police conduct in dispersing the assembly at Bolotnaya Square. For this reason, the Court will abstain from analysing the manner in which the police dispersed the protestors at Malyy Kamenny bridge, as it falls outside the scope of the applicant’s case. The Court will examine the actions taken against the applicant personally, and in doing so it will take into account the general situation in his immediate vicinity, that is, the area in front of the stage inside the designated meeting area at Bolotnaya embankment.
  5. It follows from the parties’ submissions corroborated by the video and documentary evidence that the area within the cordoned perimeter of the meeting venue at Bolotnaya embankment remained strictly peaceful for the whole time, even during the disorder outside that perimeter, at Malyy Kamenny bridge. It appears that during the sit-in the area in question was nearly empty, and that when the protest leaders abandoned the sit-in, some people then followed them towards the stage, although many had already left the meeting.
  6. After the arrest of Mr Udaltsov, Mr Navalnyy and Mr Nemtsov at the stage, a considerable number of people continued to congregate in that area. The police addressed them through megaphones, ordering them to vacate the area, but many of them refused to leave and «linked arms in passive resistance» (see paragraph 51 above). Given the benign character of their protests, the police did not use force against those protestors to the same extent as they did at Malyy Kamenny bridge. For the most part, the police were steadily pressing them out towards the exits and selectively arresting some individuals.
  7. The Court refers to the principles reiterated in paragraph 99 above which extend the protection of Article 11 to peaceful participants of an assembly tarnished by isolated acts of violence committed by other participants. In the present case, the Court finds that the applicant remained within the perimeter of the cordoned meeting venue and that his behaviour remained, by all accounts, strictly peaceful. Moreover, it does not follow from any submissions that he was among those who manifested even «passive resistance».
  8. It is in dispute between the parties whether the applicant was arrested before or shortly after the time-slot originally authorised for the assembly, and the Court will address this controversy in the context of Article 6 of the Convention (see paragraph 163 et seq. below). For the purposes of its analysis under Article 11 it is sufficient to note that even if the applicant was on the wrong side of the time-limit, measures taken after an assembly has ended fall, as a general rule, within the scope of Article 11 of the Convention as long as there is a link between the exercise of the freedom of peaceful assembly by the applicant and the measures taken against him (see Ezelin, cited above, § 41, and Navalnyy and Yashin, cited above, § 52). Accordingly, in the circumstances of this case, even after the assembly was officially terminated, the guarantees of Article 11 continued to apply in respect of the applicant, notwithstanding the clashes at Malyy Kamenny bridge. It follows that any measures taken against him in the given situation had to have complied with the law, pursued a legitimate aim and been necessary in a democratic society within the meaning of Article 11 § 2 of the Convention.
  9. The Court is mindful of the authorities’ admission that the entirety of the security measures, in particular the crackdown on those charged with offences committed on 6 May on Bolotnaya Square, was motivated by the «fear of Maidan»: the enhanced security was specifically aimed at preventing illegal campsites from being set up. At the same time, the Court observes, and the Government have insisted on this point, that the applicant was not arrested and sanctioned for breaching the rules on public assembly. Even if his presence at the meeting venue after its closure were to be considered as a manifestation of his objection to the early termination of the assembly, that was not the offence with which he was charged. According to the domestic courts and the Government’s submissions, he was arrested, detained and sentenced to fifteen days’ imprisonment because he was obstructing traffic and disobeyed lawful police orders to stop doing that.
  10. In this context, the severity of the measures applied against the applicant is entirely devoid of any justification. He was not accused of violent acts, or even of «passive resistance» in protest against the termination of the assembly. His motives for walking on the road and obstructing the traffic are left unexplained by the domestic judgments; the applicant’s explanation that there was no traffic and that he was simply not quick enough at leaving the venue in the general confusion has not been contested or ruled out. Therefore, even assuming that the applicant’s arrest, pre-trial detention and administrative sentence complied with domestic law and pursued one of the legitimate aims enumerated in Article 11 § 2 of the Convention — presumably, public safety — the measures taken against him were grossly disproportionate to the aim pursued. There was no «pressing social need» to arrest the applicant and to escort him to the police station. There was especially no need to sentence him to a prison term, albeit a short one.
  11. It must be stressed, moreover, that the arrest, the detention and the ensuing administrative conviction of the applicant could not but have had the effect of discouraging him and others from participating in protest rallies or indeed from engaging actively in opposition politics. Undoubtedly, those measures had a serious potential also to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate. The chilling effect of those sanctions was further amplified by the large number of arrests effected on that day, which attracted broad media coverage.
  12. There has accordingly been a violation of Article 11 of the Convention on account of the applicant’s arrest, pre-trial detention and administrative penalty.

 

  1. Alleged violation of Article 5 of the Convention

 

  1. The applicant further complained that his arrest and pre-trial detention pending the administrative proceedings had been arbitrary and unlawful. Article 5 § 1 of the Convention provides, in so far as relevant, as follows:

«1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.»

 

  1. Admissibility

 

  1. The Court notes that this part of application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits
  1. The parties’ submissions

 

(a) The Government

  1. The Government contended that after the authorised public assembly had been terminated the applicant had stayed on at Bolotnaya Square; he had walked on the road obstructing the traffic, and had disobeyed the police officers’ order to stop doing it. According to the Government, the applicant was escorted to the police station where he was issued a statement on the administrative offence provided for by Article 19.3 of the Code of Administrative Offences. The Government contended that the legal grounds for the arrest had been Article 27.2 of the Code of Administrative Offences, which empowered the police to escort individuals, that is, to take them to the police station in order to draw up an administrative offence report. The Government stated that the applicant had been in police custody since his arrest at 9.30 p.m. on 6 May 2012 until 8 a.m. on 8 May 2012. They explained that the length of the applicant’s detention had been calculated from 9.30 p.m. on 6 May 2012, the time when he was taken to the Krasnoselskiy District police station, and argued that the term of his pre-trial detention had not exceeded the statutory limit of forty-eight hours. Overall, the Government considered that the applicant’s deprivation of liberty had complied with domestic law and that all requisite formalities, such as issuing a lawful detention order, had been fulfilled.

(b) The applicant

  1. The applicant contested the Government’s submissions and alleged that it had not been necessary either to arrest him or to detain him at the police station after the police report and the statement on the administrative offence had been drawn up. Moreover, there had been no legal grounds to remand him in custody pending the hearing before the Justice of the Peace.

 

  1. The Court’s assessment

 

  1. The Court reiterates that the expressions «lawful» and «in accordance with a procedure prescribed by law» in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the «lawfulness» of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion. Furthermore, the list of exceptions to the right to liberty secured in Article 5 § 1 of the Convention is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his liberty (see Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports 1997-IV).
  2. The Court has noted above that the applicant was arrested for walking on the road and obstructing the traffic, although it remains unclear whether it is alleged that he was doing so within or after the period for which the traffic had been suspended and whether there actually was any traffic (see paragraph 140 above; see also paragraph 164 below). It appears that the police were in haste to disperse the remaining demonstrators from Bolotnaya Square after the early termination of the rally, and since the applicant had not yet left they decided to arrest him. Even if the preceding disorder at Malyy Kamenny bridge may explain, if not justify, their zealousness in pursuing the peaceful protestors lingering at the site, and accepting that the situation might not have allowed the relevant documents to be drawn up on the spot, there is no explanation, let alone justification, for the applicant’s ensuing detention at the police station.
  3. It has not been disputed that from the time of his arrest, at the latest at 8.30 p.m. on 6 May 2012, to his transfer to court at 8 a.m. on 8 May 2012 the applicant was deprived of his liberty within the meaning of Article 5 § 1 of the Convention. The Government submitted that his arrest and detention had the purpose of bringing him before the competent legal authority on suspicion of having committed an administrative offence and thus fell within the ambit of Article 5 § 1 (c) of the Convention. The Court notes that the duration of administrative detention should not as a general rule exceed three hours, which is an indication of the period of time the law regards as reasonable and sufficient for drawing up an administrative offence report. Once the administrative offence report had been drawn up at 9.30 p.m., the objective of escorting the applicant to the Krasnoselskiy District police station had been met and he could have been discharged.
  4. However, the applicant was not released on that day and was formally remanded in custody to secure his attendance at the hearing before the Justice of the Peace. The Government argued that the term of the applicant’s detention remained within the forty-eight-hour time-limit provided for by Article 27.5 § 3 of the Code of Administrative Offences. However, neither the Government nor any other domestic authorities have provided any justification as required by Article 27.3 of the Code, namely that it was an «exceptional case» or that it was «necessary for the prompt and proper examination of the alleged administrative offence». In the absence of any explicit reasons given by the authorities for not releasing the applicant, the Court considers that the thirty-six-hour detention pending trial was unjustified and arbitrary.
  5. In view of the foregoing, the Court finds a breach of the applicant’s right to liberty on account of the lack of reasons and legal grounds for remanding him in custody pending the hearing of his case by the Justice of the Peace.
  6. Accordingly, there has been a violation of Article 5 § 1 of the Convention.

 

III. Alleged violation of Article 6 of the Convention

 

  1. The applicant complained of a violation of the right to a fair and public hearing in the administrative proceedings against him. He relied on Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention, which provides, in so far as relevant, as follows:

«1. In the determination of… any criminal charge against him, everyone is entitled to a fair and public hearing… by [a]… tribunal…

  1. Everyone charged with a criminal offence has the following minimum rights:

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him…»

 

  1. Admissibility

 

  1. The Court reiterates that in order to determine whether an offence qualifies as «criminal» for the purposes of Article 6 the Convention, it is necessary to ascertain whether or not the provision defining the offence belongs, in the legal system of the respondent State, to the criminal law; the «very nature of the offence» and the degree of severity of the penalty risked must then be considered (see Menesheva v. Russia, no. 59261/00, § 95, ECHR 2006-III). Deprivation of liberty imposed as punishment for an offence belongs in general to the criminal sphere, unless by its nature, duration or manner of execution it is not appreciably detrimental (see Engel and Others v. the Netherlands, 8 June 1976, §§ 82 — 83, Series A no. 22, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 69 — 130, ECHR 2003-X).
  2. In the present case, the Government disagreed that Article 6 was applicable to the proceedings in question. However, the applicant in the present case was convicted of an offence which was punishable by detention, the purpose of the sanction being purely punitive. Moreover, he served a fifteen-day prison term as a result of his conviction. The Court has previously found that the offence set out in Article 19.3 of the Code of the Administrative Offences had to be classified as «criminal» for the purposes of the Convention in view of the gravity of the sanction and its purely punitive purpose (see Malofeyeva v. Russia, no. 36673/04, §§ 99 — 101, 30 May 2013; Nemtsov v. Russia, no. 1774/11, § 83, 31 July 2014; and Navalnyy and Yashin, cited above, § 78). The Court sees no reason to reach a different conclusion in the present case and considers that the proceedings in this case fall to be examined under the criminal limb of Article 6.
  3. The Court also considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. Thus, it should be declared admissible.

 

  1. Merits
  1. The parties’ submissions

 

(a) The Government

  1. The Government maintained that the proceedings in the applicant’s administrative case had complied with Article 6 of the Convention. They argued that the applicant had been given a fair opportunity to state his case, to obtain the attendance of three witnesses on his behalf and to present other evidence. The applicant was given an opportunity to lodge written requests and he availed himself of that right. The Government accepted that neither the police officers who had arrested the applicant and had drawn up the police report nor the officer who had issued the statement on the administrative offence had been called. However, they pointed out that those officers could have been summoned to the court hearing if doubts or questions had arisen.

(b) The applicant

  1. The applicant maintained that he had not been given a fair hearing in the determination of the charge against him. He complained that the court had refused to accept the video recordings of his arrest as evidence and to call and examine the police officers as witnesses. Furthermore, the court had not respected the equality of arms in that it had rejected the testimonies of all the defence witnesses while giving weight to the written police report and the statement on the administrative offence. In addition, the applicant complained that the hearing had not been open to the public, that his right to defence had been violated and that the hearing had not been adjourned following his request to allow him to prepare for it. He claimed that having spent about thirty-six hours in detention and transfer between the police station and court, he had been unfit to stand trial on 8 May 2012 and to defend himself effectively.

 

  1. The Court’s assessment

 

(a) General principles

  1. Although the admissibility of evidence is primarily governed by the rules of domestic law, it remains the task of the Court to ascertain whether the proceedings, considered as a whole, were fair as required by Article 6 § 1 of the Convention (see Delta v. France, 19 December 1990, § 35, Series A no. 191, and Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235-B). In the context of the taking of evidence, the Court has required that an applicant must be «afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage his opponent» (see Bulut v. Austria, 22 February 1996, § 47, Reports 1996-II, and Kasparov and Others, cited above, §§ 58 — 65).
  2. The Court has previously held that in circumstances where the applicant’s conviction was based primarily on the assumption of his being in a particular place at a particular time, the principle of equality of arms and, more generally, the right to a fair trial, imply that the applicant should be afforded a reasonable opportunity to challenge the assumption effectively (see Popov v. Russia, no. 26853/04, § 183, 13 July 2006, and Polyakov v. Russia, no. 77018/01, §§ 34 — 37, 29 January 2009).
  3. The guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 of the Convention is to evaluate the overall fairness of the criminal proceedings (see Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, with further references therein). Article 6 § 3 (d) of the Convention enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings (see v. Italy, no. 33354/96, § 39, ECHR 2001-II, and Solakov v. «the former Yugoslav Republic of Macedonia», no. 47023/99, § 57, ECHR 2001-X).
  4. It follows from the above-mentioned principle that there must be a good reason for the non-attendance of a witness. Furthermore, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 § 1 of the Convention (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118 — 19, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10, § 107 et seq., 15 December 2015).

(b) Application of these principles in the present case

  1. The Court observes that the applicant’s conviction for the administrative offence of disobeying lawful police orders was based on the following written documents: (i) the police report drawn up by two officers, Y. and A., whose orders the applicant had allegedly disobeyed and who had arrested him; the explanatory note by Y. reproducing the content of the police report; (iii) the statement on the administrative offence, which was produced at the police station by an on-duty officer on the basis of the aforementioned police report and reiterating it word-by-word; (iv) the escorting order; and (v) the detention order of 6 May 2012. The Court observes that the police report was drawn up using a template and contained no individualised information except the applicant’s name, the names and titles of the arresting officers and the time and place of the arrest. The report indicated that the applicant had been arrested at 9.30 p.m. for obstructing traffic, whereas the statement on the administrative offence indicated that he had been arrested at 8.30 p.m.
  2. The applicant contested the accusations and contended that he had been arrested during the authorised time-slot of the public assembly and that there had been no traffic there that he could possibly have obstructed. Three eyewitnesses confirmed his allegations; one of them had not been previously acquainted with the applicant and had no personal interest in the outcome of the administrative proceedings against him. Furthermore, the applicant had submitted a video recording, which the court rejected. Lastly, the court refused to call and examine the two police officers as witnesses, although there had been no impediment, and the applicant was not given any other opportunity to confront them.
  3. It follows that the only evidence against the applicant was not tested in the judicial proceedings. The courts based their judgment exclusively on standardised documents submitted by the police and refused to accept additional evidence or to call the police officers. The Court considers that given the dispute over the key facts underlying the charge, where the only evidence against the applicant came from the police officers who had played an active role in the contested events, it was indispensable for the domestic courts to exhaust every reasonable possibility of scrutinising their incriminating statements (see Kasparov and Others, cited above, § 64).
  4. Moreover, the courts limited the scope of the administrative case to the applicants’ alleged disobedience, having omitted to consider the «lawfulness» of the police order (see Nemtsov, cited above, § 93; Navalnyy and Yashin, cited above, § 84; cf. Makhmudov v. Russia, no. 35082/04, § 82, 26 July 2007). They thus punished the applicant for actions protected by the Convention without requiring the police to justify the interference with the applicant’s right to freedom of assembly, which included a reasonable opportunity to disperse when such an order is given. The failure to do so ran contrary to the fundamental principles of criminal law, namely, in dubio pro reo (see, mutatis mutandis, , and Jabardo v. Spain, 6 December 1988, § 77, Series A no. 146; Lavents v. Latvia, no. 58442/00, § 125, 28 November 2002; Melich and Beck v. the Czech Republic, no. 35450/04, § 49, 24 July 2008; and Nemtsov, cited above, § 92). The latter principles were applicable to the applicant’s administrative proceedings, which fell under the criminal limb of Article 6 of the Convention (see paragraph 155 above).
  5. The foregoing considerations are sufficient to enable the Court to conclude that the administrative proceedings against the applicant, taken as a whole, were conducted in violation of his right to a fair hearing.

168. In view of these findings, the Court does not consider it necessary to address the remainder of the applicants’ complaints under Article 6 §§ 1 and 3 (d) of the Convention.

  1. Alleged violation of Article 18 of the Convention

 

  1. Lastly, the applicant complained that the security measures taken in the context of the public assembly, his arrest, detention and the administrative charges against him had pursued the aim of undermining his right to freedom of assembly and freedom of expression, and had been applied for political ends. He complained of a violation of Article 18 of the Convention, which reads as follows:

«The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.»

  1. In their submissions under this head the parties reiterated their arguments as regards the alleged interference with the right to freedom of assembly, the reasons for the applicants’ deprivation of liberty and the guarantees of a fair hearing in the administrative proceedings.
  2. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
  3. The Court has already found that the applicant was arrested, detained and convicted of an administrative offence arbitrarily and that this had the effect of preventing and discouraging him and others from participating in protest rallies and engaging actively in opposition politics (see paragraph 141 above).
  4. In the light of the above, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 18 of the Convention.

 

  1. Alleged violation of Articles 3 and 13 of the Convention

 

  1. The applicant further complained of the appalling conditions of his detention at the Krasnoselskiy District police station and the lack of effective domestic remedies in respect of this complaint. He referred to Articles 3 and 13 of the Convention, which provide as follows:

Article 3 (prohibition of torture)

«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»

Article 13 (right to an effective remedy)

«Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.»

  1. The Government contested this part of the application as lodged out of time. They pointed out that the applicant’s pre-trial detention at the Krasnoselskiy District police station had ended on 8 May 2012, and there had been no domestic proceedings on this matter. His application to the Court was lodged on 9 November 2012, that is, more than six months after the end of the detention in the conditions complained of.
  2. Article 35 § 1 of the Convention permits the Court to deal with a matter only if the application is lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant. In cases featuring a continuing situation, the six-month period runs from the cessation of that situation (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 72, 10 January 2012, with further references).
  3. Since the Russian legal system offers no effective remedy in respect of complaints about conditions of pre-trial detention, conditions of transport between the remand prison and the courthouse and conditions of detention in the courthouse (see Ananyev and Others, cited above, § 119; Romanova v. Russia, no. 23215/02, § 84, 11 October 2011; and Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 104, 12 February 2009), the six-month period should be calculated from the end of the situation complained of.
  4. The Court notes that the applicant’s pre-trial detention ended on 8 May 2012. Following his conviction on that day he was placed in a different detention facility, which ended the situation complained of. He brought his complaint under Articles 3 and 13 of the Convention on 9 November 2012. It has therefore been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Grishin v. Russia, no. 30983/02, § 83, 15 November 2007).

 

  1. Application of Article 41 of the Convention

 

  1. Article 41 of the Convention provides:

«If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.»

 

  1. Damage

 

  1. The applicant requested the Court to award him compensation in respect of non-pecuniary damage, leaving its amount to the Court’s discretion.
  2. The Government considered that if the Court were to find a violation of the Convention in the present case, this finding would constitute in itself sufficient just satisfaction. They stated that any award to be made by the Court should in any event take into account the applicant’s individual circumstances, in particular the length of his deprivation of liberty and the gravity of the penalty.
  3. The Court has found a violation of Articles 11, 6 and 5 of the Convention, and it considers that, in these circumstances, the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it awards the applicant 25,000 euros (EUR) in respect of non-pecuniary damage.

 

  1. Costs and expenses

 

  1. The applicant also claimed 2,805.28 pounds sterling (GBP) (approximately 4,000 euros (EUR)) and EUR 3,300, inclusive of VAT, for the costs and expenses incurred before the Court. He submitted detailed invoices indicating the lawyers’ and the translators’ fees, the hourly rates and the time billed for the preparation of his observations and other procedural documents in this case.
  2. The Government submitted that the applicant had not produced a legal-services agreement and that it had not been necessary to retain three legal counsel in this case.
  3. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, which was of a certain complexity, the Court has found a breach of the Convention on several counts. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 7,000, plus any tax that may be chargeable to the applicant on this sum, in respect of costs and expenses. This sum is to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid into the representatives’ bank account in the United Kingdom, as identified by the applicant.

 

  1. Default interest

 

  1. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

 

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

 

  1. Declares the complaints under Articles 5, 6, 11 and 18 of the Convention admissible and the remainder of the application inadmissible;
  2. Holds that there has been a violation of Article 11 of the Convention on account of the authorities’ failure to ensure the peaceful conduct of the assembly at Bolotnaya Square;
  3. Holds that there has been a violation of Article 11 of the Convention on account of the applicant’s arrest, pre-trial detention and administrative sentence;
  4. Holds that there has been a violation of Article 5 § 1 of the Convention;
  5. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;
  6. Holds that there is no need to examine the remainder of the complaints under Article 6 of the Convention;
  7. Holds that there is no need to examine the complaint under Article 18 of the Convention;
  8. Holds, unanimously,

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 25,000 (twenty five thousand euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage;

(ii) EUR 7,000 (seven thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid into his representatives’ bank account in the United Kingdom;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

 

Done in English, and notified in writing on 5 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President

Stephen PHILLIPS Registrar

1   2   3   4   5

Добавить комментарий

Ваш e-mail не будет опубликован.

*

code