THIRD SECTION
CASE OF ARISTOV AND GROMOV v. RUSSIA
(Applications nos. 76191/12 and 5438/13)
JUDGMENT
STRASBOURG
9 October 2018
This judgment is final but it may be subject to editorial revision.
In the case of Aristov and Gromov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 18 September 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 76191/12 and 5438/13) 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, Mr Vyacheslav Vyacheslavovich Aristov and Mr Aleksandr Nikolayevich Gromov (“the applicants”), on 21 November 2012 and 15 January 2013 respectively.
2. The applicants were represented by Mr K. Terekhov and Mr A. Navalnyy, lawyers practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. On 28 August 2014 the applications were communicated to the Government.
4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The first applicant (Mr Aristov) was born in 1986 and lives in Moscow. The second applicant (Mr Gromov) was born in 1983 and lives in Moscow Region.
A. Demonstration of 6 May 2012
6. The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present cases are set out below.
7. On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it became apparent that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd, a police cordon forced the protestors to remain within the barriers. There were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protestors from the square.
8. The applicants took part in the demonstration on 6 May 2012 at Bolotnaya Square. They were arrested at the venue of the event and brought to the police stations where they were charged with administrative offences. After an overnight detention the applicants were brought before the justices of the peace and convicted as charged.
B. The applicants’ arrest, detention and conviction for administrative offences
1. The first applicant (Mr Aristov)
9. According to the first applicant, during the demonstration he stood at the intersection of Malyy Kamennyy Bridge and Bolotnaya Embankment and filmed the event. At 6 p.m. he was picked out of the crowd and apprehended by the police, though he did not cause any disorder. The applicant did not resist the police officers, who gave no orders during his arrest.
10. According to the Government, the first applicant was arrested at 6 p.m. at Bolotnaya Square because he had participated in breaking the police cordon and disregarded the police orders to cease his actions.
11. At 7.20 p.m. the first applicant was brought to Basmannyy district police station in Moscow. At the police station an on-duty officer drew up a record of the applicant’s administrative escort for the purpose of compiling an administrative file. The record of administrative arrest indicated that the applicant had been arrested at 7.20 p.m. at the police station and released on 7 May 2012 at 9.20 a.m.
12. After that an on-duty officer drew up an administrative-offence record, on the basis of the reports and explanatory notes by police officers P. and Ch., who had arrested the applicant. These reports and notes were drawn up using an identical template and contained no individualised information except the police officers’ personal information and the applicant’s name. The latter was accused of having disobeyed a lawful order of the police, an offence under Article 19.3 § 1 of the Code of Administrative Offences. The administrative-offence record reiterated the police reports, stating as follows:
“... [the applicant], acting as part of a group of 15,000 citizens, took part in an authorised meeting ... chanted slogans ‘Russia without Putin’, ‘Putin is a thief’, and ‘United Russia is a party of crooks and thieves’. During the event [the participants] broke the police cordon and tried to enter Red Square; [the applicant] did not react to the multiple lawful demands of Officers P. and Ch. to stop breaking the police cordon and continued his unlawful acts, in breach of Article 19.3 § 1 of the Code of Administrative Offences.”
13. On 7 May 2012 the first applicant was brought before the Justice of the Peace of Court Circuit no. 100 of the Yakimanka District of Moscow. The applicant insisted that he had not broken the police cordon and had been arrested by the police with no warnings or orders. He applied to have the two police officers who had arrested him examined as witnesses. This application was rejected in order to expedite the proceedings. The court questioned two witnesses for the defence and examined the video recording submitted by the applicant’s representative.
14. On the basis of the police officers’ reports and explanations and the records of the administrative escorting and arrest, the court established that the applicant had committed an administrative offence under Article 19.3 § 1 of the Code of Administrative Offences, as described in the administrative-offence record. The court dismissed as unreliable the testimony of defence witnesses, who stated that he had not chanted any slogans in their presence and had not participated in breaking the cordon. As for the video recording, it was dismissed on the grounds that it showed the background of the events in question rather than the applicant’s arrest. Moreover, it did not contain any sound and could not therefore prove whether the applicant had chanted any slogans or not. The court sentenced the applicant to twenty-four hours’ administrative detention.
15. On 22 May 2012 the Zamoskvoretskiy District Court of Moscow examined the applicant’s appeal against the judgment of 7 May 2012. The applicant repeated his application to summon and question the two police officers who had arrested him on 6 May 2012 but the court rejected it owing to the applicant’s failure to name those officers. At the trial the applicant insisted that he had not chanted any slogans and had not participated in breaking the police cordon. The court questioned two defence witnesses, who confirmed the applicant’s account of events but stated that they had not observed his arrest. Their testimony was dismissed as unreliable because both witnesses were the applicant’s friends. Relying on the reports and written statements of the police officers, the District Court upheld the first‑instance judgment.
2. The second applicant (Mr Gromov)
16. According to the second applicant, on 6 May 2012 at 4 p.m. he came to Bolotnaya Square to participate in the authorised demonstration. He could not leave the venue of the event because all the ways out of the square had been cordoned off by the police. The applicant stood in the crowd waiting for further information about the demonstration from its organisers. Around 7.30 p.m. he saw State Duma Deputy Ponomarev with a megaphone and came closer to listen to him together with ten other participants. At that moment a few police officers ran out of the cordon and arrested the deputy and everyone around him, including the applicant.
17. According to the Government, the second applicant was arrested at 8.10 p.m. at the Bolotnaya Square on 6 May 2012 because he was participating in breaking the police cordon and he had disregarded the police order to cease these acts and disperse.
18. At 9 p.m. the second applicant was brought to Veshnyaki district police station in Moscow. At the police station an on-duty officer drew up a record of his administrative escort at 9.10 p.m. for the purpose of compiling an administrative-offence record. At 9.20 p.m. the applicant was administratively arrested; according to the record of his administrative arrest he was released on 7 May 2012 at 10.50 a.m.
19. The second applicant was accused of having disobeyed a lawful order of the police, an offence under Article 19.3 § 1 of the Code of Administrative Offences. The administrative-offence record contained a printed template which stated as follows:
“... [the applicant] disobeyed a lawful order of the police who were fulfilling their service duty of maintaining public order and ensuring safety. In particular, [the police] repeatedly announced through the loudhailer lawful demands to stop the march but [the applicant], acting as part of a group of citizens, broke the [police] cordon. [He] did not react to the multiple demands [of the police] to cease these actions and disperse, and continued his unlawful acts, thereby attracting the attention of the public and mass media. [The applicant] tried to cause confusion among the public (создать суматоху среди граждан), thereby demonstrating his refusal to obey the lawful orders of the police officers and precluding them from fulfilling their service duties, in breach of Article 19.3 § 1 of the Code of Administrative Offences.”
20. The administrative case file contained two hand-written reports by police officers D. and S., who had arrested the second applicant on 6 May 2012. The reports repeated the description of the applicant’s acts contained in the administrative-offence record.
21. On 7 May 2012 the second applicant was brought before the Justice of the Peace of Court Circuit no. 100 of the Yakimanka district of Moscow, who adjourned the case to 17 May 2012. On 15 May 2012 the court decided to transfer the case owing to the lack of jurisdiction.
22. On 14 August 2012 the Justice of the Peace of Court Circuit no. 114 of the Luberetskiy Court District of Moscow Region examined the charges against the second applicant. Upon his application, the court questioned the applicant’s sister who was an eyewitness to his arrest. She confirmed his account of events (see paragraph 16 above) but the court dismissed her statements as unreliable evidence. The court also questioned Officers D. and S., who stated that after the end of the demonstration, at around 8 p.m. on 6 May 2012 the applicant, acting as part of a group of citizens, had broken the police cordon and begun the march towards Red Square. As he had not reacted to multiple demands to stop, he had been arrested together with other participants following the radio communication order.
23. On the basis of the police officers’ statements and reports the court found the second applicant guilty under Article 19.3 § 1 of CAO and sentenced him to a fine of 700 Russian roubles ((RUB) – about 18 euros (EUR) at the time).
24. The second applicant appealed against the judgment, pointing out that he had been arrested by riot squad officers rather than by D. and S. On 24 September 2012 the Lyuberetskiy Town Court of the Moscow Region examined the appeal and upheld the judgment of 14 August 2012. The Town Court dismissed the applicant’s allegations and considered that the statements of D. and S. about the applicant’s failure to obey their lawful demands to stop marching after the end of the event had been trustworthy.
II. RELEVANT DOMESTIC LAW
25. For a summary of the relevant domestic law, see Frumkin, cited above, §§ 77-79.
THE LAW
I. JOINDER OF THE APPLICATIONS
26. Given their common factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
27. The applicants complained that their arrest on 6 May 2012 followed by overnight detention at a police station had been unlawful and arbitrary. They relied on Article 5 § 1, which, in so far as relevant, reads 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:
...
(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; ...”
A. Admissibility
28. 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.
B. Merits
1. The parties’ submissions
29. The applicants submitted that instead of being released three hours after their arrest on 6 May 2012, they were remanded in police custody. This preventive measure was applied to secure their attendance at a hearing before the Justice of the Peace the next day. However, neither the Government nor the domestic authorities had provided justification for such a measure. There had been no reason to believe that the applicants would have absconded or otherwise obstructed the course of justice; in any event, the authorities had failed to demonstrate such a risk.
30. The Government contended that the applicants had been escorted to the police stations within two hours of their arrest, which had not been “manifestly unreasonable”. The legal grounds for their escorting had been Article 27.2 of the Code of Administrative Offences, which had empowered the police to take individuals to a police station for the purpose of drawing up an administrative-offence record. Once the applicants had been issued the administrative-offence records, they had been administratively arrested (Article 27.3 of the Code). The term of such an arrest had to be calculated from the time a person had been brought to a police station and should not have exceeded forty-eight hours, in accordance with Article 27.5 of the Code. Both applicants had spent fourteen hours at the police stations, which had not exceeded the statutory limit. Overall, the Government considered that the applicants’ deprivation of liberty had complied with domestic law and with the requirements of Article 5 § 1 of the Convention.
2. The Court’s assessment
31. 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 individuals 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 or her liberty (see Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports of Judgments and Decisions 1997‑IV).
32. The Court observes that both applicants were first taken to the police station in accordance with Article 27.2 of the Code of Administrative Offences and then, once at the police station, administratively arrested in accordance with Article 27.3 of the Code (see paragraphs 11 and 18 above). The applicants were then remanded at the police station for fourteen hours before being taken to the court.
33. As regards the escorting procedure, the records of administrative escorting stated that both applicants had been taken to the police station for the purpose of drawing up an administrative-offence record. Article 27.2 of the Code of Administrative Offences provides that a suspected offender could be escorted to a police station for the purpose of drawing up an administrative-offence record only if such a record could not be compiled at the place where the offence had been discovered. Even though the Government have not argued that in each applicant’s case this was impossible, the Court is ready to accept that in the context of the general commotion and violence which was happening at Bolotnaya Square, the police could hardly draw up the records on the spot (contrast Novikova and Others, nos. 25501/07 and 4 others, §§ 182-83, 26 April 2016).
34. The Court further notes than once the administrative-offence records had been drawn up, the objective of escorting the applicants to the police stations had been met and they could have been discharged. However, none of them were released on that day; both applicants were formally remanded in custody to secure their attendance at a hearing before the Justice of the Peace the next day. The Government argued that the term of the applicants’ detention had remained within the forty-eight-hour time-limit provided for by Article 27.5 of the Code of Administrative Offences. However, neither the Government nor the domestic authorities provided any justification, as required by Article 27.3 of the Code, specifically that it was an “exceptional case”, or that it was “necessary for the prompt and proper examination of the administrative case and to secure the enforcement of any penalty to be imposed”. In the absence of any explicit reasons given by the authorities for not releasing the applicants, the Court considers that their administrative arrest for fourteen hours was unjustified and arbitrary (see, for similar reasoning, Navalnyy and Yashin v. Russia, no. 76204/11, § 96, 4 December 2014).
35. In view of the foregoing, the Court considers that there were no reasons and legal grounds for remanding each applicant in custody pending the hearing of their case by the Justice of the Peace.
36. There has accordingly been a violation of Article 5 § 1 of the Convention in respect of each applicant.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
37. The applicants complained that the administrative proceedings in their cases had fallen short of guarantees of a fair hearing, in particular, the principles of equality of arms, independence and impartiality of the tribunal. They relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
A. Admissibility
38. The Government submitted that Article 6 of the Convention was not applicable to the contested proceedings, because the applicants had been charged with an administrative rather than a criminal offence.
39. The Court has previously found that Article 6 of the Convention was applicable under its criminal limb to proceedings involving charges under Article 19.3 of the Code of Administrative Offences punishable by a fine or administrative detention (see Frumkin, cited above, § 155; Mikhaylova v. Russia, no. 46998/08, §§ 71-74, 19 November 2015; Navalnyy and Yashin, cited above, § 78; and Nemtsov v. Russia, no. 1774/11, § 83, 31 July 2014). The Court sees no reason to reach a different conclusion in the present case and considers that the proceedings in question fall to be examined under the criminal limb of Article 6.
40. The Court further notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
41. The applicants submitted that in the absence of a prosecuting party the trial judges had taken on the role of the prosecution. The court therefore was not “independent and impartial” within the meaning of Article 6 of the Convention. The first applicant also alleged that the domestic courts had dismissed the testimonies of the defence witnesses and video recording favourable to him while giving weight to the written statements of the police officers.
42. The Government argued that the Code of Administrative Offences did not provide for mandatory participation of a public prosecutor in each case concerning an administrative offence. Their submissions in that connection were similar to those made in Karelin v. Russia (no. 926/08, §§ 45-48, 20 September 2016). The Government further contended that the applicants had been given a fair opportunity to argue their cases before the domestic courts, specifically to obtain the attendance of witnesses on their behalf and to present other evidence, such as a video recording. Moreover, in the case of the second applicant the courts questioned two police officers on their own motion.
2. The Court’s assessment
43. The Court has previously found that the lack of a prosecuting party in the context of oral hearings resulting in the determination of administrative charges constitutes a serious shortcoming in breach of objective impartiality requirement of Article 6 § 1 of the Convention (see Karelin, cited above, §§ 69-84). It notes that the essential factual and legal elements of the present case and the case of Karelin (ibid., §§ 59-68) are similar. The parties’ submissions in the present case disclose no reason for the Court to depart from its earlier findings in that respect.
44. As regards the first applicant’s complaint concerning the lack of a fair hearing, the Court observes that his conviction for the administrative offence of disobeying lawful police orders was based exclusively on the version of events put forward by the police. It further notes that the police reports were drawn up using a template and contained no individualised information except the first applicant’s name and the names and titles of the arresting officers. The first applicant contested the accusations, and two eyewitnesses confirmed his allegations but the courts dismissed their statements presuming bias on their part. Furthermore, he submitted a video recording which the courts also refused to admit. Lastly, the courts refused to call and examine two police officers as witnesses, although there had been no impediment, and the applicant was not given any other opportunity to confront them.
45. It is thus clear that the only evidence against the first 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 summon 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 courts to use every reasonable opportunity to check their incriminating statements (see Kasparov and Others v. Russia, no. 21613/07, § 64, 3 October 2013). Failure to do so ran contrary to the fundamental principles of criminal law, particularly in dubio pro reo (see Frumkin, cited above, § 166, and the cases cited therein). Moreover, the courts did not require 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 was given (ibid., § 64).
46. The Court therefore considers that there has been a violation of Article 6 § 1 of the Convention on account of the objective impartiality requirement in respect of each applicant, and a violation of that provision as regards the fairness of the administrative proceedings against the first applicant.
IV. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
47. The applicants alleged a violation of their right to peaceful assembly. They complained, in particular, of disruptive security measures implemented at the site of the meeting at Bolotnaya Square, of the early termination of the protest and about their arrest followed by their conviction for administrative offences. They relied on Article 11 of the Convention, which, in so far as relevant, 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 ...”
A. Admissibility
48. 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.
B. Merits
1. The parties’ submissions
(a) The Government
49. The Government’s submissions as regards the general measures implemented at Bolotnaya Square were identical to those in Frumkin (cited above, §§ 83-85). As regards the particular circumstances of the case, they alleged that the applicants had incurred sanctions for failing to obey police orders to leave the site of the public protest at the end of the authorised meeting. The charges brought against the applicants had stemmed from a specific act of disobedience committed after the end of the authorised meeting, rather than from their disagreement with the decision to terminate the meeting earlier. This was especially true for the second applicant who had been apprehended even after the initially agreed time of the end of the meeting (7.30 p.m.).
50. The Government considered that there had been no interference with the exercise of the applicants’ rights to peaceful assembly, and that in any event the penalty imposed on them, that is to say twenty-four hours’ administrative detention and a 700 Russian roubles (RUB) fine, had not been disproportionate. They concluded that both the general measures taken in relation to the protest as a whole and the individual measures taken against the applicants personally had been justified under Article 11 § 2 of the Convention. They considered that they had complied with domestic law, had been necessary “for the prevention of disorder or crime” and “for the protection of the rights and freedoms of others”, and had remained strictly proportionate.
(b) The applicants
51. The applicants pointed out that the interference with their rights under Article 11 of the Convention had not been lawful. The police had had no power to give them orders because they had not committed an administrative or criminal offence. The authorities had failed to effectively inform the demonstrators of the termination of the protest and of the order to disperse. The applicants had been unaware of their decision to end the protest. They pointed out that pursuant to domestic law the police had been required to suspend the protest first, and to give the organisers time to remedy any breach before they had terminated it. However, in the present case no time had been given either to the organisers or to the demonstrators to follow the police instructions to disperse.
52. As regards their arrest, the applicants claimed that they had acted peacefully and had not committed any unlawful acts. Prior to their arrest the police had given them no warnings and no orders which they could have disobeyed. Overall, they considered that the dispersal of the demonstration, their arrest and the ensuing conviction had not been “necessary in a democratic society”.
2. The Court’s assessment
(a) Whether there has been an interference with the exercise of the right to freedom of peaceful assembly
53. The Court has previously held that the protest in Bolotnaya Square on 6 May 2012 fell within the scope of Article 11 of the Convention (see Yaroslav Belousov, cited above, §§ 168-71). It has also found that the domestic authorities failed to discharge their positive obligation to ensure the peaceful conduct of that protest (see Frumkin v. Russia, cited above, §§ 93-130).
54. As to whether the applicants personally could rely on the provisions of Article 11, the Court reiterates that peaceful participants of a protest tarnished by isolated acts of violence committed by other participants do not cease to enjoy the right to peaceful assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 94, ECHR 2015, and Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004). It does not appear from any submissions that the applicants were among those responsible for the initial acts of aggression which contributed to the deterioration of the protest’s originally peaceful character. As regards the breaking through the police cordon imputed to the applicants, they denied having pushed through the cordon, and even if the applicants found themselves beyond the cordon, there is no evidence that it had been the result of their deliberate effort. According to the material in the case file, the cordon rupture had resulted from the pressure of the crowd which had built up because of the unexpected and unannounced change by the authorities of the venue layout (see also Frumkin, cited above, §§ 113-16 and 132). Apart from that, the applicants’ behaviour remained strictly peaceful, including the chanting of political slogans by the first applicant. The Court therefore considers that the applicants enjoyed the protection of Article 11 in the present case.
55. As to whether the applicants’ right to freedom of assembly was interfered with, the Court reiterates that measures taken by the authorities during a rally, such as dispersal of the rally or the arrest of participants and penalties imposed for having taken part in a rally, amount to an interference (see Kasparov and Others, cited above, § 84, with further references). The Court therefore considers that the termination of the demonstration, the applicants’ arrest at the venue of the event and conviction for administrative offences constituted an interference with their right to freedom of peaceful assembly.
(b) Whether the interference was justified
56. The Court has examined the circumstances surrounding the termination of the demonstration at Bolotnaya Square in Frumkin, cited above, §§ 131-36, where the parties’ submissions had been substantially the same as in the present case. As in Frumkin, the Court will abstain from analysing the manner in which the police dispersed the protestors at Malyy Kamennyy Bridge, as it falls outside the scope of the applicants’ case. It will examine the actions taken against the applicants personally.
57. It is in dispute between the parties whether the applicants were arrested before or shortly after the time-slot originally authorised for the protest, especially as regards the second applicant. However, for the purposes of the analysis under Article 11, it is sufficient to note that even if the applicants were on the wrong side of the time-limit, measures taken against them after a protest has ended fall within the scope of that provision (ibid., § 138). It follows that these measures had to have complied with the law, pursued a legitimate aim and have been necessary in a democratic society within the meaning of Article 11 § 2 of the Convention.
58. The applicants contested the lawfulness of measures taken against them, alleging, in particular, that the police had had no grounds to give them orders to disperse. The Court considers that in this case the questions of compliance with the law and of the existence of a legitimate aim cannot be dissociated from the question of whether the interference was “necessary in a democratic society”, and that it is unnecessary to examine them separately (see, for similar reasoning, Nemtsov, cited above, § 75).
59. The Court is mindful of the authorities’ submission that the enhanced security measures, in particular, the crackdown on those charged with offences committed on 6 May 2012 on Bolotnaya Square, were specifically aimed at preventing illegal campsites from being set up (see Frumkin, cited above, § 139). At the same time, the applicants were not arrested and sanctioned for breaching the rules on public assembly. Even if their presence at the meeting venue after its closure were to be considered as a manifestation of their objection to the termination of the protest, that was not the offence with which they were charged. According to the domestic courts and the Government’s submissions, they were arrested, detained and sentenced to twenty-four hours’ detention and an administrative fine because they had participated in breaking the police cordon and disobeyed lawful police orders to cease these actions and disperse.
60. The Court further notes that both applicants contested the administrative charges against them on the grounds that the underlying events had not, in fact, taken place. It has found that the domestic courts failed to establish key facts in the administrative proceedings against the first applicant, specifically whether the applicant had received an order from the police, or whether it had been lawful, or whether the applicant had disobeyed it. In the overall context of clashes between the police and protesters that happened at Bolotnaya Square, it was incumbent on the domestic courts to establish whether the first applicant had indeed participated in breaking the police cordon. Moreover, other acts imputed to him included chanting anti-government slogans, which were peaceful and constituted protest, a form of expression protected by Article 10 of the Convention (see Taranenko v. Russia, no. 19554/05, § 70, 15 May 2014). The domestic courts did not take into account that if the first applicant had overstayed the allocated time-slot, he had done so in connection with the exercise of freedom of expression and freedom of assembly. Quite to the contrary, they penalised him for the political message he intended to express by his presence at the venue and by chanting non-violent political slogans (see Yaroslav Belousov, cited above, § 178).
61. As regards the second applicant, the Court notes that the domestic courts dismissed his account of events supported by other evidence, including testimony of an eyewitness, and relied on the police statements and reports. The domestic courts’ decisions disclose no attempt to establish the relevant facts on the basis of comparative assessment of the conflicting testimonies of the applicant and his sister, and police officers. Furthermore, the courts merely stated that he had broken the police cordon and continued his participation in the demonstration, without verifying the chronology of events. The Court notes that even if, according to the authorities, the second applicant was arrested at 8.10 p.m., the description of his offence (see paragraph 19 above) sits ill with the fact that the venue had been fully cleared of all protestors by 7.30 p.m. (see paragraph 7 above). In the absence of adequate examination of the relevant factual and legal elements of the case on their part, the domestic courts cannot be said to have “applied standards which were in conformity with the principles embodied in Article 11” (see Annenkov and Others v. Russia, no. 31475/10, § 139 and the cases cited therein, 25 July 2017).
62. The Court therefore is not satisfied that the reasons adduced by the national authorities to justify the interference under Article 11 of the Convention, namely the applicants’ arrest at the site of the venue and their conviction for administrative offences, were relevant and sufficient. It must be stressed, moreover, that the measures taken against the applicants must have had the effect of discouraging them and others from attending protest rallies and, more generally, from participating in open political debate. The chilling effect of the sanctions imposed on them was further amplified by the large number of arrests effected on that day, which attracted widespread media coverage.
63. There has accordingly been a violation of Article 11 of the Convention in respect of each applicant.
V. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION
64. Lastly, the applicants complained that the termination of their participation in a public protest, their arrest, detention and conviction for administrative offences had pursued the aim of undermining their right to liberty and freedom of assembly. They 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.”
65. 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.
66. The Court notes that this complaint is linked to the complaints examined above under Articles 5, 6 and 11 and must therefore likewise be declared admissible.
67. The Court has already found that the applicants’ arrest and administrative conviction were not justified, and that this had the effect of preventing or discouraging them and others from participating in protest rallies and engaging actively in opposition politics (see paragraphs 35 and 62 above).
68. Having regard to those findings, 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.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
69. 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.”
A. Damage
70. Each applicant claimed 11,000 euros (EUR) in respect of non‑pecuniary damage.
71. 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 each applicant’s individual circumstances, in particular the length of his deprivation of liberty and the gravity of the penalty.
72. The Court has found a violation of Articles 5, 6 and 11 of the Convention in respect of each applicant. Making its assessment on an equitable basis, it awards each applicant EUR 7,500 in respect of non‑pecuniary damage.
B. Costs and expenses
73. Each applicant also claimed EUR 1,100 in respect of legal fees incurred in the proceedings before the Court.
74. The Government contested the claims on the grounds that there was no proof that they had actually been incurred.
75. 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. The Court notes that the applicants submitted no documentary proof, such as legal-services contracts with their representative, payment receipts or invoices, that they had a legally enforceable obligation to pay for the lawyer’s services or that they had in fact paid them. Regard being had to these considerations and to its case-law, the Court rejects each applicant’s claim for costs and expenses (see Novikova and Others, cited above, § 235).
C. Default interest
76. 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
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of each applicant;
4. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the objective impartiality requirement in respect of each applicant;
5. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the fairness of the administrative proceedings against the first applicant;
6. Holds that there has been a violation of Article 11 of the Convention in respect of each applicant;
7. Holds that there is no need to examine the complaints under Article 18 of the Convention;
8. Holds
(a) that the respondent State is to pay each 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 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;
9. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 9 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
Full & Egal Universal Law Academy