Communicated on 23 September 2016
THIRD SECTION
Applications nos. 42276/15 and 54278/15
Igor Yuryevich BORETS-PERVAK against Russia
and Yekaterina Anatolyevna MALDON against Russia
lodged on 5 August 2015 and 10 October 2015 respectively
(see the Appendix)
STATEMENT OF FACTS
The applicants are two Russian nationals. They are represented before the Court by Ms D. Pigoleva and Mr N. Zboroshenko, lawyers practising in Moscow.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On 27 October 2014 the Basmannyy District Court of Moscow extended the detention of the Ukrainian woman pilot Nadezhda Savchenko.
On 26 January 2015 the President of the PACE stated that Russia should free Nadezhda Savchenko. As a response to this statement, several public gatherings took place in support of the pilot in Washington, New York, Kyiv, Jerusalem, Tel Aviv, St Petersburg and Moscow.
On the evening of 26 January 2015 around eleven people gathered on Lubyanskiy Proyezd in Moscow; the gathering had not been duly authorised by the city authorities. At first the participants stood silently holding homemade posters “No to war”, “Freedom for Nadezhda Savchenko!” A while later they started to chant “Freedom for Nadezhda Savchenko!” At different time the applicants were arrested and taken to police stations.
Details as regards the administrative proceedings against each applicant are stated in the Appendix.
B. Relevant domestic law and practice
1. The relevant provisions of the Code of Administrative Offences of 30 December 2001, as in force at the material time, read as follows:
Article 19.3 Refusal to obey a lawful order of a police officer ...
“1. Refusal to obey a lawful order or demand of a police officer ... in connection with the performance of their official duties related to maintaining public order and security, or impeding the performance by them of their official duties shall be punishable by a fine of between 500 Russian roubles (RUB) and RUB 1,000 or administrative detention of up to fifteen days ...”
Article 20.2 Breaches of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets
“5. Breaches by participant in a public event of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets ... shall be punishable by an administrative fine of between RUB 10,000 and RUB 20,000 or compulsory community service of up to 40 hours.”
Article 25.1 Person against whom administrative proceedings have been instituted
“1. Any person against whom administrative proceedings have been instituted is entitled to study the case-file material, to make submissions, to adduce evidence, to lodge motions and challenges, and to have legal assistance ...”
Article 27.2 Escorting of individuals
“1. The escorting or the transfer by force of an individual ... for the purpose of drawing up an administrative offence report, if this cannot be done at the place where the offence was discovered and if the drawing up of a report is mandatory, shall be carried out:
(1) by the police ...
...
2. The escort operation shall be carried out as quickly as possible.
3. The escort operation shall be recorded in an escort operation report, an administrative offence report or an administrative detention report. The escorted person shall be given a copy of the escort operation report if he or she so requests.”
Article 27.3 Administrative detention
“1. Administrative detention or short-term restriction of an individual’s liberty may be applied in exceptional cases if this is necessary for the prompt and proper examination of the alleged administrative offence or to secure the enforcement of any penalty imposed by a judgment concerning an administrative offence ...
5. The detained person shall have his rights and obligations under this Code explained to him, and the corresponding entry shall be made in the administrative arrest report.”
Article 27.4 Administrative detention report
“1. Administrative detention shall be recorded in a report ...
2. ... If he or she so requests, the arrested person shall be given a copy of the administrative detention report.”
Article 27.5 Duration of administrative detention
“1. The duration of the administrative detention shall not exceed three hours, except in the cases set out in paragraphs 2 and 3 of this Article.
2. Any person subject to administrative proceedings concerning offences involving unlawful crossing of the Russian border ... may be subject to administrative detention for up to 48 hours.
3. Any person subject to administrative proceedings concerning offences punishable, among other administrative sanctions, by administrative arrest may be subject to administrative detention for up to 48 hours.
4. The term of the administrative detention is calculated from the time when [a person] being escorted in accordance with Article 27.2 is taken [to the police station] ...”
2. The Constitutional Court’s case-law on equality of arms and adversarial procedure in administrative proceedings reads as follows:
Decision No. 630-O of 23 April 2013 by the Russian Constitutional Court
“Articles 118 § 2 and 123 § 3 of the Russian Constitution provide that the principles of equality of arms and adversarial procedure should apply in court proceedings, including those under the Code of Administrative Offences of Russia. These constitutional provisions should be interpreted as guaranteeing the application of the principles of equality of arms and adversarial procedure only to cases that are in the courts’ jurisdiction. Meanwhile, administrative offence cases can be examined not only by the courts, but also by the authorities and officials (Articles 22.1 and 22.2 of the CAO).
Those charged with an administrative offence by an official or an authority may challenge their decisions in the courts (Article 30.1 § 1 of the CAO). Such review proceedings should provide for equality of arms and adversarial proceedings ...”
COMPLAINTS
The applicants’ complaints are set out in the Appendix.
The applicants complain under Article 11 of the Convention about the allegedly unlawful and disproportionate measures taken against them as peaceful protesters. One of the applicants also alleges a violation of Article 10 of the Convention in this respect.
Both applicants also complain about their arrest, alleging that it was arbitrary. One of them also claims that his detention at the police station after the arrest was unlawful, in violation of Article 5 § 1 of the Convention.
The applicants complain under Article 6 § 1 of the Convention that the proceedings in which they were convicted of the administrative offences fell short of the guarantees of a fair hearing. They point out, in particular, that there was no prosecuting authority; that role was allegedly performed by the judge. One applicant also alleges that he was not given adequate time to retain a lawyer before the first-instance hearing in the proceedings under Article 19.3 § 1 of the CAO.
Both applicants complain under Article 6 § 3 (d) of the Convention that the courts refused to call prosecution witnesses, namely the police officers who had arrested them at the gathering.
COMMON QUESTION
1. As regards each applicant, has there been an interference with his or her freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention?
2. If so, was that interference prescribed by law and necessary in terms of Article 11 § 2 of the Convention, in respect of each applicant? In particular, given the spontaneous character of the assembly and impossibility to give a notice within the time-limit prescribed by law, was the interference proportionate in the circumstances of the present case (see Bukta and Others, v. Hungary, no. 25691/04, §§ 35-37, ECHR 2007‑III, and Éva Molnár v. Hungary, no. 10346/05, §§ 36-38, 7 October 2008)?
3. Was each applicant’s arrest on 26 January 2015 compatible with the requirements of Article 5 § 1 of the Convention? In particular:
(a) What were the legal grounds for the applicant’s arrest during the gathering on 26 January 2015?
(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?
4. As regards each applicant’s trial, did they have a fair hearing by an independent and impartial tribunal in the administrative proceedings against them, in accordance with Article 6 § 1 of the Convention, given the absence of any prosecuting authority, whose role was allegedly performed by the judge?
5. As regards each applicant, were they able to examine witnesses against them, in particular, the police officers who had arrested them at the public gathering, as required by Article 6 § 3 (d) of the Convention?
CASE SPECIFIC QUESTIONS
Application no. 42276/15
1. Was the applicant’s deprivation of liberty lasting more than three hours compatible with the requirements of Article 5 § 1 of the Convention? In particular:
(a) What were the legal grounds for the applicant’s detention?
(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?
2. Was the applicant afforded adequate time and facilities for the preparation of his defence, and was he able to retain counsel for the first‑instance hearing in the proceedings under Article 19.3 of the CAO, as required by Article 6 § 3 (b) and (c) of the Convention?
APPENDIX
No.
Application
no. and date of introduction
Applicant name
Date of birth
Place of residence
Nationality
Represented by
Charge and penalty
(Russian roubles)
Final domestic decision details
Complaints
42276/15
05/08/2015
Igor Yuryevich BORETS-PERVAK
09/08/1959
Moscow
Russian
Darya Sergeyevna PIGOLEVA
Article 19.3 § 1 of the CAO
Administrative detention 11 days
Article 20.2 § 5 of the CAO
Administrative fine
RUB 10.000
Appeal decision 06/02/2015 Moscow City Court
Appeal decision 14/04/2015 Moscow City Court
Art. 5 § 1 – unlawful detention for more than three hours.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 6 § 3 (c) – the first-instance court dismissed the applicant’s motion to provide him with time to retain a lawyer (proceedings under Art. 19.3 of the CAO).
Article 6 § 3 (d) – the first instance (proceedings under Art. 20.2) and appeal (proceedings under Art. 19.3) courts refused to call prosecution witnesses, namely the police officers who had arrested the applicant.
Art. 10 and 11 – arrest and conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly and freedom of expression.
54278/15
10/10/2015
Yekaterina Anatolyevna MALDON
22/08/1972
Moscow
Russian
Nikolay Sergeyevich ZBOROSHENKO
Article 20.2 § 5 of the CAO
Administrative fine RUB 20.000
Appeal decision 20/04/2015 Moscow City Court
Art. 5 § 1 – unlawful arrest.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 6 § 3 (d) – the appellate court refused to question prosecution witnesses, namely the police officers who had arrested the applicant.
Art. 11 – arrest and conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
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