CASE OF ACHILOV AND IVANOV v. RUSSIA

 

 

THIRD SECTION

CASE OF ACHILOV AND IVANOV v. RUSSIA

(Applications nos. 55674/10 and 54271/12)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

2 November 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Achilov and Ivanov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 María Elósegui, President,
 Darian Pavli,
 Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 55674/10 and 54271/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals (see the appended table);

the decisions to give notice to the Russian Government (“the Government”) of the complaints under Articles 3, 5, 8, 11 and 13 of the Convention and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 5 October 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The present case concerns, inter alia, the first applicant’s static demonstration in November 2009 and his prosecution for a related administrative offence, and the interception of the applicants’ telephone communications.

THE FACTS

2.  The Government were represented initially by Mr G. Matyushkin and then Mr M. Galperin, Representatives of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, their successor in that office.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  Between 2005 and 2012 the applicants worked for the Gelendzhik Human Rights Centre. The first applicant was also a registered private entrepreneur. Among their various activities, they were involved in locating unlawfully constructed buildings in the town of Gelendzhik and reporting them to the authorities. In the absence of an adequate response, they would initiate various proceedings before the civil or commercial courts. They also had recourse to other actions, such as demonstrations (see also Achilov and Others v. Russia [Committee], nos. 10780/07 and 54004/07, 9 June 2020).

Application no. 55674/10

5.  On an unspecified date the second applicant was arrested on suspicion of a criminal offence.

6.  The first applicant submitted a notice to the Gelendzhik municipality, thereby notifying them of his intention to hold a static demonstration on 26 November 2009 near the town office of the Federal Security Service (“FSB”). The notice specified that the event’s goal was to draw the public’s attention to the allegedly unlawful arrest of the second applicant.

7.  Referring to section 12 § 2 of the Public Events Act and Article 294 of the Criminal Code, on 23 November 2009 the municipality issued a warning document to the first applicant, inviting him to abstain from holding the event and indicating if it were to be held he and participants might be held liable.

8.  On 26 November 2009 the first applicant held the demonstration as planned. By a judgment of 15 December 2009 a justice of the peace convicted him under Article 20.2 § 2 of the Code of Administrative Offences (CAO) and sentenced him to a fine of 2,000 Russian roubles (45 euros at the time). The justice of the peace held that he had committed a breach of public order on account of his failure to abstain from holding the demonstration, despite the lawful warning document issued by the municipality. The court stated that such actions amounted to “putting pressure on justice in relation to a specific criminal case”.

9.  On 20 January 2010 the Gelendzhik Town Court of the Krasnodar Region upheld the judgment. It stated, notably, that the goal of the first applicant’s demonstration amounted to indirect interference with the administration of justice in the criminal case against Mr Ivanov.

Application no. 54271/12Interception of telephone communications

10.  By two decisions of 3 October 2011, an unspecified judge of Oktyabrskiy District Court of Novorossiysk authorised the tapping of the applicants’ conversations on three mobile telephone numbers from 3 October 2011 for 180 days. The decision in respect of the second applicant mentioned that, according to the information held by the FSB office of the Krasnodar Region, he was the subject of investigative file no. 543 (дело оперативного учета) and that the data obtained in respect of him indicated that he had been involved in the organisation of an extremist community, which is an offence under Article 282.1 of the Criminal Code.

11.  On 20 February 2012 the applicants were arrested in relation to unrelated criminal proceedings concerning fraud charges under Article 159 of the Criminal Code. On 18 April 2012 the court extended the first applicant’s detention. On 16 May 2012 the appeal court heard representations from the prosecutor and upheld the extension.

12.  The applicants learnt about the tapping in June 2012 when they studied the material in the case file concerning the criminal case. The file did not contain the decisions of 3 October 2011. On 8 October 2012 the Krasnodar Regional Court declassified these decisions. During the trial the prosecutor submitted two documents that appeared to be excerpts from these decisions. The documents did not bear the name of the authorising judge or the official seal of the authorising court. At a court hearing on 27 November 2012 the prosecutor requested the trial court to require the FSB to submit the decisions mentioned above. On the same day the FSB submitted their photocopies. The documents had not been signed by a judge and they did not bear the official seal of the authorising court. They bore the seal of the FSB office.

13.  By a judgment of 30 April 2013, the Town Court convicted the applicants as charged. It held that the interception of communications had been lawful and thus the records could be relied on as evidence; no circumstance was identified for rejecting the records as inadmissible evidence. It held as follows:

“The court rejects the defendants’ argument that the records of the intercepted telephone communications should not be used in evidence because during the preliminary investigation the investigator did not receive court decisions authorising the interception and because the court decisions do not bear the seal of the authorising court ... The authorities that carry out operational-search activities [“OSA”] rely on the [Operational-Search Activities Act, “the OSAA”, and] the Instruction of 17 April 2007 on providing the OSA results to an enquirer, an investigator, a prosecutor or a court ... The Instruction contains requirements concerning the OSA results and the procedure for providing them to an investigator or a court ... Under section 13 of the Instruction, OSA results arising from ... the interception of telephone communications ... should be accompanied by a copy of the related court decisions authorising the OSA.

On 27 November 2012 ... the court admitted to the file copies of court decisions nos. 706 and 707 dated 3 October 2011 ... An authorised official certified those copies of the court decisions and apposed an appropriate seal ... Thus, the court decisions were requested and admitted to the file in compliance with Articles 271 and 286 of the Code of Criminal Procedure, section 11 of the OSAA and paragraphs 11 and 21 of the Instruction ... The fact that those court decisions were not handed over to the investigator during the investigation does not tarnish the OSA results.”

14.  On 13 August 2013 the Regional Court upheld the judgment. It appears that in 2015 a request for a review in cassation was dismissed.

The second applicant’s enquiries

15.  In February 2013 the FSB informed the second applicant in the following terms:

“Pursuant to section 5 of the Operational-Search Activities Act, at present you have not acquired the right to have access to the information received in the framework of file no. 543 as you are not a person whose guilt has not been established in the relevant procedure (by way of a refusal to institute criminal proceedings or to discontinue such proceedings for lack of evidence that a crime has been committed or corpus delicti) ... Within the measures taken for the purposes of file no. 543 we received information indicating that you, Mr Achilov, [and two others] had committed crimes under Article 159 of the Criminal Code. The relevant material was then transferred to [the investigating authority] in order to take a decision on whether or not to institute criminal proceedings. Such proceedings were instituted on 21 February 2012 ... We have no other information that would indicate that you have committed other offences, for instance under Article 282.1 of the Criminal Code.”

16.  By a letter of 18 November 2013, the President of the District Court informed him that the court had no information in relation to any operational-search activities in respect of him on the part of FSB officers.

17.  On 27 July 2015 the Judiciary Department of the Supreme Court of Russia informed the second applicant that pursuant to paragraph 12.5 of the Instruction on case processing in a district court (as adopted by the Department in its Decree no. 36 of 29 April 2003), copies of court decisions issued by a court must be certified with the signature of the judge presiding in the relevant case or, if not possible, by the signature of the (deputy) president of the court, or another authorised member of personnel, such as a court clerk. The copy must bear the official seal of the court. In order to certify compliance of the copy with the original court decision, it must be stamped “Copy verified” and the court’s seal must appear on the last sheet of the court decision.

18.  On 24 August 2015 the FSB’s regional office gave a similar reply, concluding that the office had no authority to certify copies of court decisions. On 13 July 2016 the FSB’s regional office informed one of the applicants’ co-defendants that the originals of court decisions nos. 706 and 707 of 3 October 2011 had been kept in file no. 543; in October 2013 the file had been disposed of, as it no longer had any practical, scientific or historical value.

Conditions of detention

19.  Between February 2012 and August 2013 the applicants were kept, for varying consecutive periods of time, in the temporary detention centre in Gelendzhik (where the proceedings were pending) or in remand centre no. 23/3 in the town of Novorossiysk.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

public events

20.  Pursuant to Federal Law no. 54-FZ of 19 June 2004 (“Public Events Act”), a public event may be held in any convenient location, provided that it does not create a risk of building collapse or any other risks to the safety of the participants (section 8 § 1).

21.  If the information contained in the notification or other factors give reason to believe that the aims of the public event or the manner of its conduct are contrary to the Constitution, the Criminal Code or the CAO, the competent regional or municipal authority must warn the organisers in writing that they may be held liable for any unlawful actions, in accordance with the procedure prescribed by law (section 12 § 2).

interception of telephone communications

22.  For a summary of the relevant provisions of Federal Law no. 144-FZ of 12 August 1995 (the Operational-Search Activities Act or “the OSAA”), see Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 43-55, 7 November 2017.

23.  A court decision authorising an OSA (such as the interception of telephone communications) must be certified with a seal and handed over to the requesting authority (section 9 of the OSAA). The administration of the courts must ensure the protection of the data contained in the documents submitted by the requesting authority (ibid.). A court decision authorising an OSA and the material submitted for making such an order are both kept only by the authority carrying out the OSA (section 12). According to the Constitutional Court of Russia, OSA results may be used in evidence in criminal proceedings only after a court decision authorising the OSA or a copy (копия) of such a decision has been admitted to the criminal case file (decision no. 460-O-O of 15 July 2008 [unpublished]). Section 12 did not prohibit the defendant having access to the court decision or receiving a copy of the court decision and thus did not impede the right to seek judicial review of a court decision authorising an OSA (decision no. 1585-O-O of 17 November 2011 [unpublished]).

THE LAW

Joinder of the applications

24.  The Court finds it appropriate to examine the applications jointly in a single judgment.

ALLEGED VIOLATION OF article 11 of THE CONVENTION IN Application no. 55674/10

25.  The first applicant complained that the municipality’s decision in relation to the static demonstration and his prosecution (see paragraphs 7-9 above) had been in breach of Article 11 of the Convention, which reads as follows:

“1.  Everyone has the right to freedom of peaceful assembly ...

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ...”

26.  The complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

27.  The prosecution under the CAO amounted to an “interference” under Article 11 § 2. In so far as the applicant was required to abstain, under the threat of prosecution, from holding a public event as planned and was then prosecuted in that connection, the municipality’s decision of 23 November 2009 amounted to an “interference” too (compare Karastelev and Others v. Russia, no. 16435/10, §§ 70-75, 6 October 2020, concerning a similar warning procedure under the anti-extremism legislation).

28.  The applicant was convicted of breaching sections 8 and 12 § 2 of the Public Events Act. The Court does not need to ascertain whether, as the courts adjudged, section 8 authorised restrictions relating to a venue of a public event in view of any “specificities of the objects [объекты]” located in the vicinity of that venue, or banned such events near FSB buildings (see paragraphs 8 and 20 above). For the reasons stated below the interferences were not convincingly shown to have been “necessary in a democratic society” in pursuance of some legitimate aim under Article 11 § 2 of the Convention (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 128, 15 November 2018).

29.  The goal of the demonstration was related to the second applicant’s arrest and his ongoing detention on remand in relation to an unspecified offence. When “inviting” the first applicant, under a threat of prosecution, to abstain from the demonstration near the local FSB office, the municipality inferred, without any further assessment or substantiation, that that event would interfere with the administration of justice in the second applicant’s criminal case. The municipality assessed no circumstances, which would justify the existence of any real and immediate risk of the first applicant interfering with the activities of a court with the aim to impede the administration of justice (that is an offence under Article 294 of the Criminal Code). Thus it has not been established that the interference was proportionate to the aim of “preventing crime” (compare Karastelev and Others, cited above, §§ 84-86). The municipality did not rely, at least in substance, on another legitimate aim. Its decision was not specifically circumscribed to address any precise risk to public safety or a precise risk of disorder with the minimum impairment of the right of peaceful assembly. Nor did that decision contain any reasoning as to protecting the judicial process in a specific case from outside influence, and thereby protecting the rights of others, namely the parties to judicial proceedings. Article 11 § 2 does not contain such aim as “maintaining the authority and impartiality of the judiciary” (compare with Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 431-42 and 472, 7 February 2017).

30.  Similarly, the courts in the first applicant’s CAO case provided no reasoning as to why holding the demonstration near the FSB building interfered with the administration of justice or what legitimate aim was pursued under Article 11 § 2 by prosecuting him for holding it there (ibid., concerning a violation of Article 11 on account of the statutory general ban on holding any public events in the immediate vicinity of court buildings). The courts had no regard to any statements made during that demonstration and did not rely on any factual circumstances concerning any court proceedings then pending or, at least, completed in respect of the second applicant.

31.  The Court is mindful of its fundamentally subsidiary role in the Convention system (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 175, ECHR 2016). Faced with the domestic authorities’ failure to provide relevant and sufficient reasons to justify the “interferences”, the Court finds that they cannot be said to have applied standards which were in conformity with the principles embodied in Article 11 or to have based themselves on an acceptable assessment of the relevant facts (see, among many others, Navalnyy, § 148, and Lashmankin and Others, § 358, both cited above). It has not been convincingly demonstrated that the interferences were “necessary in a democratic society” in pursuance of a legitimate aim.

32.  There has therefore been a violation of Article 11 of the Convention in respect of the first applicant.

ALLEGED VIOLATIONS OF THE CONVENTION IN application no. 54271/12In respect of the first applicant (Mr Achilov)The Government’s unilateral declaration

33.  Pursuant to Rule 62A of the Rules of Court, the Government submitted a unilateral declaration dated 28 June 2016 concerning the complaints under Article 3, Article 5 §§ 1 and 3, Article 8 (as regards the interception of communications) and Article 13 in conjunction with Article 3. They undertook to pay the applicant 10,000 euros (EUR) within three months of the notification of the Court’s decision under Article 37 § 1 of the Convention. The applicant was not satisfied with the terms of the declaration because it would not serve the purpose of seeking a re-opening of the criminal proceedings against him.

34.  Noting the admissions contained in the declaration and the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is appropriate to strike out the complaints mentioned above (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 76, ECHR 2003-VI, and De Tommaso v. Italy [GC], no. 43395/09, § 134, 23 February 2017). Noting the nature and scope of the complaints, it is not necessary to examine whether the acceptance of the Government’s unilateral declaration would indeed prevent the first applicant from requesting the reopening of the proceedings in his criminal case (see, mutatis mutandis, Ryabkin and Volokitin v.Russia (dec.), nos. 52166/08 and 8526/09, § 50, 28 June 2016, and Sirota v. Russia (dec.) [Committee], no. 19006/07, 27 November 2018). Respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the complaints (Article 37 § 1 in fine). Should the Government fail to comply with the terms of their declaration, the application may be restored to the list of cases in accordance with Article 37 § 2 (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

The remaining complaints

35.  Having regard to the above findings, the Court considers that it is not necessary to examine the admissibility and merits of the remaining complaints under Article 5 § 4 and Article 8 of the Convention.

In respect of the second applicant (Mr Ivanov)Articles 3 and 13 of the Convention (remand centre)

36.  The second applicant remained in the remand centre until late August 2013 and lodged related complaints before the Court in February 2014. They concern the same remand centre during the same period of time as for the first applicant. The description of the material conditions of detention was similar to the grievances underlying the first applicant’s complaint. While the Government acknowledged violations of Articles 3 and 13 in respect of the first applicant and issued a unilateral declaration on that account, they put forward no argument relating to any factual or legal elements that might distinguish the situation of the second applicant. Having examined the available material, the Court considers that the complaints are admissible and concludes that there have been violations of Articles 3 and 13 of the Convention in respect of the second applicant.

Tapping of telephone communications

37.  The second applicant complained that the tapping of his telephone communications had violated Article 8 of the Convention, which reads as follows:

“1.  Everyone has the right to respect for his private ... life ... and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

(a)   Admissibility

38.  The Government submitted that the applicant had raised the matter before the Court belatedly on 11 February 2014. The applicant argued that in late 2012 he had started to have suspicions about the arbitrary tapping of his telephone communications and attempted to obtain information about the court decisions authorising the tapping and stating the grounds for it. It was the District Court’s letter of 18 November 2013 stating that that court had no information on the matter that had provided both the factual basis and the substantiation for his suspicion of unlawfulness of such interference. He then lodged this complaint before the Court on 11 February 2014.

39.  The Court notes that no original of a court decision bearing a district judge’s signature and that court’s seal was ever presented in the domestic proceedings. The Supreme Court’s regulations of general application required that the original of a court decision had to be kept at the relevant court’s registry and that a certified copy of a court decision issued to a party to the proceedings would normally contain a judge’s signature and the court’s seal (see paragraph 17 above). The District Court’s letter of 18 November 2013 (see paragraph 16 above) lends support to the applicant’s suspicion regarding the authenticity of the edited version of the court decision submitted by the FSB during the trial (see also paragraphs 17-18 and 23 above concerning the domestic regulations on originals of court decisions and their certified copies). In the Court’s view, in the particular circumstances of the case his enquiry resulting in that letter has to be taken into account for the purpose of applying the six-month rule under Article 35 § 1 of the Convention. Accordingly, given the sequence of events (see paragraphs 12-17 above) and in the absence of any argument that the applicant should have exhausted a specific remedy before lodging a complaint before the Court, it concludes that this complaint was lodged in time in the present case.

40.  It is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

(b)   Merits

41.  The essential factual and legal matters in the present case are similar to those already examined in previous cases (see Moskalev v. Russia, no. 44045/05, §§ 35-45, 7 November 2017; Dudchenko v. Russia, no. 37717/05, §§ 95-100, 7 November 2017; and Zubkov and Others, cited above, §§ 125-33).

42.  In its decision of 3 October 2011 the Oktyabrskiy District Court of Novorossiysk mentioned no fact or information that would satisfy an objective observer that the second applicant might have committed an offence under Article 282.1 of the Criminal Code. There is no evidence that any information or documents confirming the suspicion against him was submitted to that court (see paragraphs 10 and 15 above). The reasonableness of the suspicion was therefore not verified by it (see, similarly, Roman Zakharov v. Russia ([GC], no. 47143/06, §§ 260‑67, ECHR 2015 and Moskalev, cited above, § 42). The lengthy and extensive covert surveillance was not justified (see Moskalev, § 43, and Dudchenko, § 98, both cited above).

43.  In view of the foregoing considerations and also taking note of the Government’s admission of a similar violation concerning the first applicant, there has therefore been a violation of Article 8 of the Convention in respect of the second applicant.

Other complaints

44.  The second applicant’s complaints under Articles 3, 8 and 13 on account of the conditions of his detention in the temporary detention centre were lodged on 11 February 2014. His lawyer submitted to the Court that following the trial judgment of 30 April 2013 the applicant had remained in another detention facility (the remand centre) until the end of the appeal proceedings on 13 August 2013. Accordingly, these complaints related to detention prior to 30 April 2013 must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

45.  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.”

46.  The applicants claimed 275,000 and 210,000 euros (EUR) in respect of non‑pecuniary damage.

47.  The Government contested the claims.

48.  As regards the first applicant, the Court notes that as to certain complaints in application no. 54271/12, under the terms of their unilateral declaration the Government have undertaken to pay him EUR 10,000 within three months of the notification of the present judgment. The Court finds that the proposed award is sufficient to cover the non-pecuniary damage that has been suffered by the first applicant on account of the violations found.

49.  The Court awards EUR 7,500 to the second applicant, in respect of non-pecuniary damage, plus any tax that may be chargeable.

50.  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,

Decides to join the applications;Takes note of the terms of the Government’s declaration in respect of the first applicant in application no. 54271/12 and of the arrangements for ensuring compliance with the undertakings referred to therein;Decides to strike out in accordance with Article 37 § 1 (c) of the Convention the first applicant’s complaints under Article 3, Article 5 §§ 1 and 3, Article 8 (as regards phone tapping) and Article 13 in conjunction with Article 3 in application no. 54271/12;Decides that it is not necessary to examine the first applicant’s remaining complaints in application no. 54271/12;Declares the first applicant’s complaint under Article 11 and the second applicant’s complaints under Articles 3 and 13 (as regards the remand centre) and Article 8 of the Convention (as regards phone tapping) admissible and the remainder of the second applicant’s complaints inadmissible;Holds that there has been a violation of Article 11 of the Convention in respect of the first applicant;Holds that there have been violations of Articles 3, 8 and 13 in respect of the second applicant;Holds

(a)  that the respondent State is to pay the second applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

Dismisses the remainder of the claim for just satisfaction.

Done in English, and notified in writing on 2 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova  María Elósegui
Deputy Registrar President

APPENDIX

 

 

No.

Application no.

Case name

Lodged on

Applicant
Date of Birth
Place of Residence
Nationality

Represented by

1.

55674/10

Achilov v. Russia

19/07/2010

Zufar Karsheyevich ACHILOV
1958
Aleksandriyskaya
Russian

 

2.

54271/12

Achilov and Ivanov v. Russia

23/06/2012

 

 

 

 

 

 

 

11/02/2014

Zufar Karsheyevich ACHILOV
1958
Aleksandriyskaya
Russian
Vladimir Viktorovich IVANOV
1959
Aleksandriyskaya
Russian

Sergey Ivanovich BOGDANOV

 

 

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