Communicated on 13 October 2014
FIRST SECTION
Application no. 50041/14
Vladimir Georgiyevich AKIMENKOV against Russia
and 4 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The applicants were charged with criminal offences committed during the mass disorders that allegedly took place at a political rally held on 6 May 2012 at Bolotnaya Square in Moscow.
Their submissions on the circumstances in which a demonstration took place and was dispersed by the authorities are set out in Section A below. The facts relating to the applicants’ criminal proceedings are set out in Section B. The applicants’ submissions concerning the conditions at the court hearings are set out in Section C.
A. Background facts
On 23 April 2012 five individuals submitted a notice of a public demonstration to the mayor of Moscow stating the date, time and route of the intended march. It was to begin at 4 p.m. on 6 May 2012, with an estimated number of about 5,000 participants, who would march from Kaluzhskaya Square down Bolshaya Yakimanka Street and Bolshaya Polyanka Street, followed by a meeting at Bolotnaya Square. The meeting was to end at 7.30 p.m. The notice stated that the proposed demonstration was intended “to express protest against abuses and falsifications in the course of the elections to the State Duma and of the President of the Russian Federation, and to express a demand for fair elections, respect for human rights, for the rule of law and the international obligations of the Russian Federation”.
On 4 May 2012 the deputy mayor of Moscow assigned the Tsentralnyy district prefect to assist the organisers of the demonstration in maintaining public order and security during the event.
On 5 May 2012 a plan of the intended demonstration was officially published, which included a map of the area designated for the march and the meeting. The centre of Bolotnaya Square was indicated on it as the place of the meeting.
On 6 May 2012 the march began as planned at 4 p.m. The turnout exceeded the expectations, but there is no consensus as to the exact numbers. The organisers of the demonstration considered that about 25,000 people took part in the event. The police stated that the number of participants was 8,000; the applicants contended that there had been at least 35,000-55,000 participants, whereas the estimates given in different media varied between 45,000 and 120,000 people.
The march down Yakimanka Street and Bolshaya Polyanka Street went peacefully without any disruption. However, when the marchers arrived at Bolotnaya Square it turned out that the designated venue of the meeting had been cordoned off; its layout been altered and its size reduced compared to the plan originally adopted by the Moscow authorities and agreed on by the meeting organisers. All of Bolotnaya Square, except for a narrow strip along its embankment, was barred with metal barriers and gaurded by the riot police. The strip was left to serve as a corridor leading to the entrance to the meeting venue, and it was equipped with 15 metal detectors. The corridor was substantially narrower than the streets by which the marchers arrived, and a stampede and panic occurred.
The organisers of the meeting and two MPs attempted to talk to the police superiors about opening up some of the cordons and widening the corridor at the entrance of the meeting, so as to comply with the original plan, but these talks were unsuccessful.
Apparently some protestors attempted to break through the police cordon, but they were forced back to the restricted area and clashes between them and the police began. The police allegedly used truncheons, electric shock and teargas against the participants who had stepped over the limits.
At 5.30 p.m. the police declared the early closure of the meeting and began to disperse the participants. It took them about two hours to clear the protestors away from the square. According to the official sources, 436 protestors were arrested at the site, but the organisers considered their number underestimated and claimed that there had been about 650 persons taken into custody.
On the same day the Investigative Committee of the Russian Federation opened criminal proceedings to investigate the suspected mass disorders and violent acts against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code).
On 28 May 2012 the investigation was also launched into the criminal offence of organising mass disorders (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.
On 22 June 2012 the Investigative Committee set up an investigation group of 27 investigators and put them in charge of the criminal file concerning the events of 6 May 2012.
On an unidentified date two human rights activists filed a request with the Investigative Committee to open criminal investigation into the conduct of the police in the above events, in particular their alleged suppression of the lawful public demonstration. There is no information about the follow‑up to this request.
Another petition was filed, also on an unidentified date, by 44 human rights activists and members of NGOs, calling for curbing repression against the protestors arrested and prosecuted in relation to the events of 6 May 2012 and denying that mass riots had taken place during the demonstration.
In 2012-2014 several individuals were prosecuted and convicted for having taken part in mass disorders and for having committed violent offences against the police, and two activists were convicted for having organised mass disorders.
B. The applicants’ individual cases
1. The application of Mr Akimenkov (no. 50041/14)
The applicant is a political activist, a member of an opposition movement “Levyy Front”.
He claims that on 6 May 2012 he arrived at Bolotnaya Square to take part in the peaceful demonstration. He denies having taken part in any clashes with the police or having caused disorder.
On 10 June 2012 the applicant was detained on suspicion of having participated in mass disorders on 6 May 2012, between 5 p.m. and 8 p.m. He was charged with the offences provided for by Articles 212 § 2 of the Criminal Code (participation in mass disorders) and 318 § 1 (violence against a public official). On the same day he was placed in pre-trial detention where he remained for one year, six months and nine days.
On 9 January 2013 the applicant lodged an application with the Court concerning the grounds and the length of his detention on remand, the poor conditions of detention and transfer and the lack of medical assistance at the detention facility. This application was communicated to the respondent Government on 10 September 2013, with priority granted under Rule 41 of the Rules of Court (Akimenkov v. Russia, no. 2613/13 and 6 other applications).
On 24 May 2013 the applicant’s criminal case file was submitted to the Zamoskvoretsky District Court of Moscow, and it began the hearing of the criminal case against the applicants and seven other persons.
On 18 December 2013 the State Duma passed the Amnesty Act which absolved persons charged with offences punishable with prison sentences of up to five years of criminal liability.
On 19 December 2013 the applicant requested the termination of his criminal proceedings by operation of the Amnesty Act. On the same day the Zamoskvoretsky District Court granted the request and released him from detention.
2. The application of Mr Belousov (no. 60980/14)
At the time of arrest the applicant was a student of the political science faculty of the Moscow State University.
He claims that on 6 May 2012 he arrived at Bolotnaya Square to take part in the peaceful demonstration. He denies having taken part in any clashes with the police or having caused disorder.
On 17 May 2012 the applicant was convicted of non-compliance with a lawful order by a police officer, an offence under Article 19.3 of the Code of Administrative Offences. He was sentenced to a 24-hour’ detention.
On 9 June 2012 the applicant was detained on suspicion of having participated in mass disorders on 6 May 2012, between 5 p.m. and 8 p.m. He was charged with the offences provided for by Articles 212 § 2 of the Criminal Code (participation in mass disorders) and 318 § 1 (violence against a public official). On the same day he was placed in pre-trial detention where he remained pending the investigation and trial, and following his conviction for the duration of the prison sentence, in total two years and three months.
On 20 December 2012 the applicant lodged an application with the Court concerning the grounds and the length of his detention on remand, the poor conditions during his detention, transfer and the judicial hearing, and the lack of medical assistance at the detention facility. This application was communicated to the respondent Government on 10 September 2013, with priority granted under Rule 41 of the Rules of Court (Akimenkov v. Russia, no. 2613/13 and 6 other applications).
On 24 May 2013 the applicant’s criminal case file was submitted to the Zamoskvoretsky District Court of Moscow, and it began the hearing of the criminal case against the applicants and seven other persons.
The applicant claims that he has asked the court to examine the written statements by key witness, police officer F., made on 8 May 2012 (volume 8, pages 76-81 of the criminal case file). According to the applicant, this statement was capable of exonerating him, but the court rejected the motion. He also requested to dismiss the evidence given by this witness at the trial on the grounds that during the investigation F. had been introduced to the applicant for a confrontation examination before any identification parade. The applicant claims that the sole aim of the confrontation was to ensure that the witness could later identify him as a perpetrator. Moreover, F,’s role of a police officer who had taken part in the suppression of the rally should not have allowed treating him as a neutral witness.
On 21 February 2014 the Zamoskvoretsky District Court found the applicant guilty as charged. He was sentenced to two years and six months of imprisonment.
On 20 June 2014 the Moscow City Court upheld the first-instance judgment in substance, but reduced the prison sentence to two years and three months.
On 8 September 2014 the applicant was released after having served his sentence.
3. The application of Mr Kovyayzin (no. 50043/14)
From 2006 to 2012 the applicant was a philosophy and philology student at the Vyatskiy State University in Kirov. From 15 December 2011 until his arrest he was also working part-time as a video-operator for a newspaper “Vyatskiy Nablyudatel”.
On 4 May 2012 the applicant received an assignment from the newspaper chief editor to attend on 6 May 2012 the “March of Millions” on Bolotnaya Square and to take video footage of the event.
He claims that on 6 May 2012 he arrived at Bolotnaya Square, filmed the event and did not take part in any clashes with the police and did not cause disorder.
On 15 May 2012 the applicant submitted the footage of the events of 6 May 2012 in Bolotnaya Square to the editor, and it was published on the newspaper’s website.
On 5 September 2012 the applicant was charged with having participated in mass disorders between 5 p.m. and 8 p.m. on 6 May 2012. The charges were formulated under Article 212 § 2 of the Criminal Code. He was accused, in particular, of having breached public order during the demonstration, of having turned over portable toilet cabins and having piled them on the road to build a barrier for the police and the militia.
On 7 September 2012 the applicant was placed in pre-trial detention where he remained for one year, three months and five days.
On 12 February 2013 the applicant lodged an application with the Court concerning the grounds and the length of his detention on remand, the poor conditions of detention and the lack of medical assistance at the detention facility. This application was communicated to the respondent Government on 10 September 2013, with priority granted under Rule 41 of the Rules of Court (Akimenkov v. Russia, no. 2613/13 and 6 other applications).
On 24 May 2013 the applicant’s criminal case file was submitted to the Zamoskvoretsky District Court of Moscow, and it began the hearing of the criminal case against the applicants and seven other persons.
On 18 December 2013 the State Duma passed an Amnesty Act which absolved persons charged with offences punishable with prison sentences of up to five years of criminal liability.
On 19 December 2013 the applicant requested the termination of his criminal proceedings by operation of the Amnesty Act. On the same day the Zamoskvoretsky District Court granted the request and released him from detention.
4. The application of Mr Lutskevich (no. 60902/14)
At the time of his arrest the applicant was a first-year student of the faculty of culture studies of the Moscow Humanities University.
He claims that on 6 May 2012 he arrived at Bolotnaya Square to take part in the peaceful demonstration and that he did not intend to take part in any disorder or clashes with the police. However, he claims that he was beaten up by the police as they were dispersing the demonstration.
On 9 June 2013 the applicant was detained on remand on suspicion of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012. He remained in detention pending the investigation and trial, and then following his conviction.
On 18 June 2012 charges were brought against the applicant for having participated in mass disorders, aggravated by violence, and for having assaulted a police officer. In particular, he was accused of having pulled a protection helmet off a police officer’s head. The charges were formulated under Articles 212 § 2 of the Criminal Code (participation in mass disorders) and 318 § 1 (violence against a public official).
On 11 January 2013 the applicant lodged an application with the Court concerning the grounds and the length of his detention on remand, the poor conditions of detention and transfer, the ill-treatment during his arrest and the lack of effective investigation into the alleged ill-treatment. This application was communicated to the respondent Government on 19 December 2013, with priority granted under Rule 41 of the Rules of Court (Lutskevich v. Russia, no. 6312/13 and 3 other applications).
On 24 May 2013 the applicant’s criminal case file was submitted to the Zamoskvoretsky District Court of Moscow, and it began the hearing of the criminal case against the applicants and seven other persons.
On 21 February 2014 the Zamoskvoretsky District Court found the applicant guilty as charged. He was sentenced to three years and six months of imprisonment.
On 20 June 2014 the Moscow City Court upheld the first-instance judgment.
The applicant is currently serving his prison sentence.
5. The application of Mr Zimin (no. 60894/14)
At the time of his arrest the applicant was a fourth-year student at the faculty of history, political studies and law of the Russian State Humanities University.
He claims that on 6 May 2012 he arrived at Bolotnaya Square to take part in the peaceful demonstration. He denies having taken part in any clashes with the police or having caused disorder.
On 8 June 2013 the applicant was detained on remand on suspicion of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012. He remained in detention pending the investigation and trial, and then following his conviction.
On 18 June 2012 charges were brought against the applicant for having participated in mass disorders, aggravated by violence, and for having committed an act of violence against an official. In particular, he was accused of having thrown three chunks of tarmac in the direction of the policemen and of having hit a policeman causing a fracture of his finger. The charges were formulated under Articles 212 § 2 of the Criminal Code (participation in mass disorders) and 318 § 1 (violence against a public official).
On 1 October 2013 the applicant lodged an application with the Court concerning the grounds and the length of his detention on remand and the poor conditions of detention and transfer. This application was communicated to the respondent Government on 19 December 2013, with priority granted under Rule 41 of the Rules of Court (Lutskevich v. Russia, no. 6312/13 and 3 other applications).
On 24 May 2013 the applicant’s criminal case file was submitted to the Zamoskvoretsky District Court of Moscow, and it began the hearing of the criminal case against the applicants and seven other persons.
On 21 February 2014 the Zamoskvoretsky District Court found the applicant guilty as charged. He was sentenced to three years and six months of imprisonment.
On 20 June 2014 the Moscow City Court upheld the first-instance judgment.
The applicant is currently serving his prison sentence.
C. Conditions at the court hearing
From 6 June 2013 to August 2013 the first-instance hearings of the applicants’ criminal case took place in the hearing room no. 338 of the Moscow City Court; from mid-August to mid-September 2013 in the hearing room no. 635 of the same court; from mid-September 2013 to the end of December 2013 in the hearing room no. 303 of the Nikulinskiy District Court of Moscow; and in January-February 2014 in the hearing room no. 410 of the Zamoskvoretsky District Court.
According to the applicants, the court hearings in the case were held three to five days a week, a schedule too intensive for the defendants detained on remand. On the day of the hearing the applicants would wake up at 6 a.m., spend several hours in transfer to the courthouse in poor conditions; the hearings would typically begin at 11 a.m. and last until 7.30 p.m.; after the hearing the transfer back would again take several hours, and they would arrive at the detention facility at 9.30 p.m. at the earliest; they would then have to prepare for the next day hearing, leaving insufficient time for sleep and rest. The frequency of the hearings combined with the enduring conditions in the detention facility and in transfer to the courthouse and back exhausted the applicants and reduced their ability to follow the proceedings and to defend themselves.
The applicants further allege that during the hearings at the Moscow City Court, in the hearing room no. 338 they were among the eleven defendants crumped in a small room separated by a plastic partition from the rest of the courtroom. The room lacked space and ventilation; the sound circulated through the narrow slots between the frames and the applicants had troubles hearing and following the proceedings. The lack of space made it impossible to have documents. The bench had no backrest.
The hearing room no. 635 of the Moscow City Court had two glass cabins which gave the defendants more space but it was virtually soundproof. The glass partition which separated the defendants from their counsels and the rest of the hearing room made it impossible to have an oral exchange between a defendant and a lawyer other than through a microphone making their conversation audible by everyone present in the hearing room. The screen on which the video materials were projected was too far for the applicants with poor eye sight to see the details of the footage.
In the hearing room no. 303 of the Nikulinskiy District Court the applicants were held in a metal cage; the bench of counsels was too far from the defendants to allow for consultation during the hearing. Moreover, they were separated by the convoy officers.
The applicants claim that during the trial they did not have sufficient access to their lawyers for consultations between the hearings and that during the hearings, including the intervals, these contacts have not been confidential. In particular, they allege that the convoy supervised the defendants’ conversations with their legal counsels and read all documents that they were exchanging, despite the applicants’ and the counsel’s objections.
D. Relevant domestic law
The Criminal Code of the Russian Federation provides as follows:
Article 212 Mass disorders
“1. The organisation of mass disorders accompanied by violence, riots, arson, destruction of property, use of firearms, explosives and explosive devices, as well by armed resistance to a public official shall be punishable by four to ten years’ deprivation of liberty.
2. The participation in the mass disorders provided for by paragraph 1 of this Article shall be punishable by three to eight years’ deprivation of liberty.
3. The instigation of mass disorders provided for by paragraph 1 of this Article, or the instigation of participation in them, or the instigation of violence against citizens shall be punishable by restriction of liberty for up to two years, or community works for up to two years, or deprivation of liberty for the same term.”
Article 318 Use of violence against a public official
“1. The use of violence not endangering life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of up to 200,000 roubles or an equivalent of the convicted person’s wages for 18 months, or community works for up to five years, or up to five years’ deprivation of liberty...”
COMPLAINTS
All applicants complain about a violation of their right to freedom of expression and the right to peaceful assembly following the security measures implemented by the authorities in relation to the authorised and peaceful political rally on Bolotnaya Square on 6 May 2012 which, in their view, had disrupted the demonstration, had been unlawful, arbitrary and not necessary in a democratic society. They further complain that the security measures in respect of the demonstration and their ensuing prosecution for criminal offences had been a reprisal for expressing views critical of the authorities and that it had an aim of discouraging the public events led by the opposition activists. These complaints fall to be examined under Articles 10, 11 and 18 of the Convention.
All applicants complain that the conditions in the courtrooms during the hearing of their criminal case were inhuman and degrading, in violation of Article 3 of the Convention, stressing in particular the difficulties caused by their placement in the glass and metal cages separating them from the rest of the hearing room.
Mr Belousov, Mr Lutskevich and Mr Zimin also allege a violation of the right to a fair hearing in the criminal proceedings against them, in particular of the lack of time and facilities to prepare their defense, the poor conditions of the court hearing that had allegedly impeded their defense and the lack of confidential contacts with their legal counsels during the trial. They rely on Article 6 §§ 1 and 3 (b) and (c) of the Convention.
Mr Belousov, in addition, complains under Article 6 § 3 (d) of the Convention that the key witness against him, the police officer F., had confronted the applicant before the identification parade and that his original witness statement, allegedly exonerating the applicant, has not been examined as evidence at the court hearing.
QUESTIONS TO THE PARTIES
I. QUESTIONS RELATING TO THE DEMONSTRATION OF 6 MAY 2012
1. In the present case, have the authorities complied with their duty to take appropriate measures with regard to lawful demonstrations in order to ensure their peaceful conduct, as required by Article 11 of the Convention (see Oya Ataman v. Turkey, no. 74552/01, § 35, ECHR 2006-XIII)? The Government are invited to submit documents relating to the authorisation of the demonstration on Bolotnaya Square on 6 May 2012 and the security and crowd-control measures taken by the authorities prior to, during and after the demonstration.
2. What was the reason for the authorities’ order to stop the demonstration earlier than originally planned? If the decision to stop the demonstration was taken because of serious public disorder, has the cause of the disorder been identified?
3. If the demonstration involved serious public disorder, was the authorities’ response adequate to the nature and the extent of the disorder? In particular, was the order to stop the demonstration and its dispersal justified?
4. Has there been an inquiry into the events of 6 May 2012 at Bolotnaya Square? If so, the Government are requested to provide the results of the inquiry and all relating documents and video materials, as well as the verbatim records of the applicants’ trial.
II. QUESTIONS RELATING TO ALL APPLICANTS
As regards each of the applicants the Government are invited to answer the following questions:
1. Having regard to the applicant’s specific allegations in respect of their arrest and the ensuing criminal charges, has there been an interference with the applicant’s freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 11 § 2?
2. Have the same measures constituted an interference with the applicants’ freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
3. Were the crowd-control and security measures implemented and the applicants’ liberty restricted for the purpose of undermining the rights to freedom of assembly and expression, in breach of Article 18 of the Convention (see Gusinskiy v. Russia, no. 70276/01, ECHR 2004‑IV)?
4. Were the conditions of the applicants’ detention during the hearings at the Moscow City Court and the Nikulinskiy District Court of Moscow compatible with Article 3 of the Convention (see, in particular, Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, 17 July 2014)? In answering this question the Government need not reiterate the submissions already made in the cases Akimenkov v. Russia, no. 2613/13 and 6 other applications and Lutskevich v. Russia, no. 6312/13 and 3 other applications, which the Court will take into account in the present case.
III. QUESTIONS RELATING TO INDIVIDUAL APPLICANTS
As regards the applications by Mr Belousov, Mr Lutskevich and Mr Zimin the Government are invited to answer the following questions:
1. Having regard to each applicant’s specific allegations in respect of the criminal proceedings, did he receive a fair hearing by an independent and impartial tribunal in accordance with Article 6 §§ 1 and 3 (b) and (c) of the Convention?
2. In Mr Belousov’s case, having regard to the allegation that the key witness against him, police officer F., had confronted him before the identification parade and that F.’s original witness statements had not been examined as evidence at the court hearing, did the applicant receive a fair hearing as required by Article 6 §§ 1 and 3 (d) of the Convention?
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
50041/14
15/06/2014
Vladimir Georgiyevich AKIMENKOV
10/06/1987
Moscow
Russian
Dmitriy Vladimirovich AGRANOVSKIY
50043/14
15/06/2014
Leonid Nikolayevich KOVYAZIN
28/09/1986
Kostino, Kirov Region
Russian
Dmitriy Vladimirovich AGRANOVSKIY
60894/14
02/09/2014
Stepan Yuryevich ZIMIN
18/01/1992
Uzlovaya, Tula Region
Russian
Dmitriy Vladimirovich AGRANOVSKIY
60902/14
02/09/2014
Denis Aleksandrovich LUTSKEVICH
11/04/1992
Lobnya, Moscow Region
Russian
Dmitriy Vladimirovich AGRANOVSKIY
60980/14
02/09/2014
Yaroslav Gennadiyevich BELOUSOV
30/07/1991
Moscow
Russian
Dmitriy Vladimirovich AGRANOVSKIY
Full & Egal Universal Law Academy