CASE OF BASOK v. RUSSIA

THIRD SECTION

CASE OF BASOK v. RUSSIA

(Application no. 10252/10)

JUDGMENT
 

STRASBOURG

24 March 2020

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

In the case of Basok v. Russia,

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

Paulo Pinto de Albuquerque, President,
Helen Keller,
María Elósegui, judges,
and Olga Chernishova, Deputy Section Registrar,

Having deliberated in private on 3 March 2020,

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

PROCEDURE

1.  The case originated in an application (no. 10252/10) 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 a Russian national, Mr Yuriy Borisovich Basok (“the applicant”), on 24 January 2010.

2.  The applicant was represented by Mr Anton Leonidovich Burkov, and previously by Mr V. Kapustin, lawyers practising in Yekaterinburg. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3.  On 15 May 2017 the Government were given notice of the complaints under Article 5 §§ 1 and 5, Articles 10 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

4.  The applicant was born in 1969 and lives in Zarechnyy, Sverdlovsk Region.Events on 8 January 2009 and related proceedings

5.  On 8 January 2009 the applicant was present in Yekaterinburg at the venue of a public protest against an increase in the tax on foreign imported vehicles. According to the applicant, he was acting as a freelance journalist for an Internet news portal. Seeing Mr D. – a senior official of the traffic police in charge of supervising the event – park his vehicle at a pedestrian crossing, the applicant or some other journalists present at the event venue made video recordings and took photographs of the vehicle. The applicant also tried to take a photograph of Mr D.

6.  Allegedly, Mr D., inter alia, shouted obscenities at the applicant, slapped the applicant in the face, tried to grab his neck, and damaged his still camera. According to the applicant, those actions were seen by journalists and other officers. The incident received some media coverage.

7.  On 15 January 2009 a police officer, Shch., submitted a report (рапорт) to his superior, indicating that (i) on 8 January 2009 he had been assigned the task of ensuring public safety during a protest rally; (ii) the applicant had been taking part in that rally and (iii) he was listed in the official database as an “extremist” who took part in protest rallies in Yekaterinburg.Criminal-complaint procedures

8.  It appears that on 23 January 2009 the applicant lodged an application to bring a private criminal prosecution for battery and insulting behaviour against D., but that application was turned down since at the time a criminal investigation had already been started (see below).

9.  On 27 January 2009 the authorities opened a criminal investigation against D. in respect of the offences of causing wilful damage to property and of abuse of power by a public official (Articles 167 and 286 of the Criminal Code). The applicant was given victim status in the criminal case and also lodged civil claims against D.

10.  As can be understood from the text of the bill of indictment, wishing to put an end to the applicant’s attempts to take photographs and his questioning, D. struck with his left hand the applicant’s still camera; the camera being close to the applicant’s face, D. also touched his face, thereby causing pain to the applicant. D. then grabbed with his two hands the applicant’s clothes and pushed him away slightly (to a distance of some two metres), also inflicting a blow to the applicant’s neck.

11.  The case against D. was submitted for trial before the Verkh-Isetskiy District Court of Yekaterinburg in October 2009. In December 2009 the prosecutor dropped the charges, stating that there was insufficient evidence. On 21 December 2009 the judge validated this decision, referring to Article 246 of the Code of Criminal Procedure, and discontinued the case for lack of corpus delicti. On 3 February 2010 the Sverdlovsk Regional Court upheld the judgment, noting that the dropping of charges in a criminal case inevitably resulted in a judicial decision to discontinue that case.

12.  The applicant again attempted to bring a private prosecution against D. for battery and insulting behaviour (under Articles 116 and 130 of the Criminal Code). On 27 January 2010 a justice of the peace declined to examine the case because D. had already been subject to criminal prosecution in respect of the same accusation (обвинение) relating to the same facts and a decision on it had been delivered on 21 December 2009. On 28 June 2010 the District Court upheld the decision of 27 January 2010. On an unspecified date, the Regional Court dismissed a cassation appeal lodged by the applicant.

13.  The applicant lodged a constitutional complaint challenging Article 246 of the Code of Criminal Procedure. By decision no. 1711-O-O of 16 December 2010 the Constitutional Court of Russia declined to hear that complaint, noting that while a public prosecutor’s decision to drop charges did entail the discontinuation of a criminal case, it did not prevent the person concerned from lodging a separate civil claim later on and from securing the examination of that claim.Civil court proceedings for compensation

14.  The applicant lodged a claim for compensation against the State in respect of pecuniary and non-pecuniary damage caused by an on-duty public official. By a judgment of 13 October 2010 the Verkh-Isetskiy District Court of Yekaterinburg dismissed his claim as unsubstantiated. On 25 January 2011 the Sverdlovsk Regional Court upheld that judgment.Events on 31 January 2009 and related proceedingsThe applicant’s arrest and seizure of printed material

15.  At 11.30 a.m. on 31 January 2009 the applicant and two others were stopped by the police and then taken to a police station while they were apparently on their way to take part in a public event in the form of a meeting (митинг) organised by the local branch of the Communist Party that was scheduled to start at 1 p.m. According to the applicant, it was explained to him that he had been stopped because his appearance matched the description of a suspect in an unspecified robbery.

16.  In the police station the police searched the applicant and seized several leaflets from a batch (entitled “Trust yourself, not the authorities”, “The Government – to be dissolved”, and “A call to the police”) that the applicant had in his bag, as well as an edition of a newspaper, People’s Friend.

17.  The applicant was released two and a half hours later, after the end of the public event. No arrest record or other record was compiled in relation to the above-mentioned robbery or any other offence.

18.  The police submitted the leaflets to the anti-extremism unit of the Department of the Interior. The latter ordered a linguistic expert report, which concluded that the leaflets contained incitements to racial, religious, ethnic and other forms of hatred. The report furthermore concluded that both the leaflet entitled “Trust yourself, not the authorities” and the newspaper contained calls to prepare for “difficult times” and thus fostered a “depressive attitude”, which in turn incited social enmity between different groups of the population. Overall, the material reflected the ideology promoted by the so-called National Bolshevik Party (Национал‑большевистская партия), a prohibited organisation.

19.  On 27 February 2009 the authorities declined to initiate criminal proceedings in respect of charges of extremism because the above‑mentioned material had not been disseminated.

20.  The Kirovskiy district prosecutor’s office instituted court proceedings seeking to have the leaflets declared to constitute extremist material. It appears that at least two court hearings were held in March 2010. The outcome of the case is unclear.The applicant’s related complaints

21.  In February 2009 the applicant instituted court proceedings under Chapter 25 of the Code of Civil Procedure, challenging the police officers’ actions in respect of him on 31 January 2009. The applicant argued as follows:

- the real purpose of his being taken to the police station had been to prevent him from taking part in the demonstration and from distributing leaflets; at the police station he had not been interviewed in relation to any robbery, and no related investigative measures had been carried out; instead, he had been “dealt with” by officers of the anti-extremism unit of the Department of the Interior;

-  the police had not compiled a written record in respect of his deprivation of liberty.

22.  The police submitted to the court a list containing descriptions of several dozen alleged robbers.

23.  On 13 July 2009 the Kirovskiy District Court of Yekaterinburg delivered a judgment. Having given a long summary of the anti-extremist legislation and the authorities’ actions in relation to the applicant’s leaflets, the court concluded that the applicant had been subjected to the escort procedure (доставление) under Article 27.2 of the Code of Administrative Offences (“the CAO”) and that the use of that procedure had been lawful, since the police had stated that the applicant had matched the description(s) of suspects issued in the course of pending robbery investigation(s). However, the court considered that the failure to compile an escort record had been unlawful. Lastly, the court summarily dismissed the remainder of the claims as unsubstantiated.

24.  The applicant appealed, arguing, inter alia, that he had not been accused or suspected of any administrative offence; thus, it had been unlawful to use the escort procedure under the CAO, since his being taken to the police station could not have and had not pursued the statutory aim of compiling an administrative-offence record. In any event, that finding contradicted the authorities’ explanation regarding his resemblance to the robber in question.

25.  On 20 October 2009 the Sverdlovsk Regional Court upheld the judgment, while noting that the first-instance court’s comment regarding the escort record had been “unnecessary”. The appeal court also stated as follows:

“[The applicant] was escorted by the patrol officers, who noticed agitated behaviour [on the part of the applicant and two others]. Upon seeing the officers they started to hide something and hand things over to each other ... [The applicant’s appearance] resembled a description of a person suspected of stealing mobile telephones ... The patrol officers decided to ascertain whether [the applicant] was implicated in those offences ...”

THE LAWALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

26.  The applicant complained under Article 5 of the Convention that on 31 January 2009 he had been subjected to an unlawful and arbitrary deprivation of liberty with the sole purpose of preventing him from participating in a public meeting and from distributing leaflets, and that the arbitrary findings reached by judicial review proceedings had barred him from claiming compensation in relation to that deprivation of liberty.

27.  Article 5 of the Convention 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:

...

(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; ...

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”The parties’ submissions

28.  The Government argued that having obtained a partly favourable court decision relating to the legality of the police’s actions on 31 January 2009 (see paragraphs 23-25 above), the applicant should have lodged a civil claim for compensation for non-pecuniary damage under Article 1069 of the Civil Code. By failing to do so he had not exhausted domestic remedies in respect of his complaints under Article 5 §§ 1 and 5 of the Convention.

29.  The applicant maintained his complaint.The Court’s assessmentAdmissibility

30.  Before the Court the applicant complained under Article 5 § 1 of the Convention that he had been subjected to an unlawful and arbitrary deprivation of liberty with the sole purpose of preventing him from participating in the above-mentioned public event and from distributing leaflets. He also contended that the arbitrary findings reached in the judicial review proceedings had barred him from claiming compensation in relation to that deprivation of liberty.

31.  The domestic authorities – including in the civil proceedings ending with the appeal decision of 20 October 2009 (see paragraph 25 above) – did not acknowledge any violation of Russian law on that account. Thus, the applicant had no statutory basis for seeking monetary redress with reference to the civil courts’ findings. Accordingly, the Government’s objection is dismissed in respect of Article 5 § 1 of the Convention.

32.  Similarly, in respect of Article 5 § 5 of the Convention, in view of the unfavourable findings relating to the legality of the police officers’ actions, the applicant had no prospect of succeeding in subsequently bringing a claim for compensation. Thus, the Government’s objection is dismissed in respect of Article 5 § 5 of the Convention too.

33.  The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.Merits

(a)   Article 5 § 1 of the Convention

34.  The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one, and only a narrow interpretation of those exceptions is consistent with the aim of that provision – namely to ensure that no one is arbitrarily deprived of his liberty (see Shimovolos v. Russia, no. 30194/09, § 51, 21 June 2011).

35.  The condition that there should be no arbitrariness also demands that both an order to detain and the execution of that detention genuinely conform to the purpose of the restrictions permitted by the relevant sub‑paragraph of Article 5 § 1. Where, for example, detention is sought to be justified by reference to the first limb of Article 5 § 1 (c) in order to bring a person before the competent legal authority on reasonable suspicion of having committed an offence, the Court has insisted upon the need for the authorities to furnish some facts or information that would satisfy an objective observer that the person concerned may have committed the offence in question (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 91, 22 October 2018). What is “reasonable” depends on all the circumstances, but the facts that raise a suspicion need not be of the same level as those necessary to justify a conviction, or even the bringing of a charge (see Merabishvili v. Georgia [GC], no. 72508/13, § 183, 28 November 2017).

36.  Within the context of sub-paragraph (c) of Article 5 § 1, a strict interpretation of the term “offence” constitutes an important safeguard against arbitrariness. This provision does not, according to the Court’s established case-law, permit a policy of general prevention directed against an individual or a category of individuals who are perceived by the authorities, rightly or wrongly, as being dangerous or having the propensity to commit unlawful acts. This ground of detention does no more than afford the Contracting States a means of preventing a concrete and specific offence as regards, in particular, the place and time of its commission and its victim(s) (see S., V. and A. v. Denmark, cited above, § 89).

37.  The domestic authorities did not ascertain whether the applicant had been arrested on account of any specific criminal offence – namely on account of specific facts relating to the occurrence of a robbery in a given location on a given date. Moreover, neither the civil courts nor any other domestic authority ascertained whether and how the applicant’s appearance matched any of the numerous suspect profiles relating to those robberies (see paragraph 22 above). Indeed, no written record was compiled in order to formalise and specify the relevant factual and legal elements. Thus, the Court cannot accept that there was a “reasonable suspicion” in respect of the applicant in relation to any specific criminal offence at the time of his initial arrest and his being taken to the police station (see, in the same vein, Kapustin v. Russia [Committee], no. 36801/09, § 30, 8 October 2019).

38.  Nor is there any indication that the applicant was suspected of any reprehensible conduct that might constitute an administrative offence. Accordingly, it is unclear why the civil court considered that the applicant had been subjected to the escort procedure under Article 27.2 of the CAO.

39.  Thus, the Court concludes that the applicant’s arrest was not lawful, given that it was not “effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, within the meaning of Article 5 § 1 (c) of the Convention. Nor was it argued that the arrest measure had been considered necessary “to prevent his committing an offence”.

40.  The Government have not claimed, and the Court does not find it established, that the applicant’s arrest was justified under the other subparagraphs of Article 5 § 1 of the Convention.

41.  The Court concludes that the applicant’s arrest was arbitrary and amounted to a violation of Article 5 § 1 of the Convention.

(b)   Article 5 § 5 of the Convention

42.  The Court reiterates that Article 5 § 5 of the Convention is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012).

43.  The Court notes that it has found a violation of Article 5 § 1 of the Convention in the present case. It follows that the complaint under Article 5 § 5 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

44.  In the light of the information before it the Court notes that compensation for damage sustained as a result of arrest and detention could be awarded if such measures were found to be unlawful under Russian law (see Boris Popov v. Russia, no. 23284/04, § 84, 28 October 2010). The national authorities, including courts, are expected to interpret and apply national law in the light of the Convention, as interpreted by the Court. The Court has found that the applicant’s deprivation of liberty did not fall within the ambit of any subparagraph of Article 5 § 1 of the Convention. By failing to apply the relevant standards, as outlined in paragraphs 34-36 above, the national courts failed to deal properly with the applicant’s claim relating to the legality of the police actions and, by implication, barred an eventual compensation claim, which could have been based, under Russian law, on the finding of such illegality. Accordingly, the courts that undertook judicial review under Chapter 25 of the Code of Civil Procedure did not enforce the applicant’s right to compensation (see Boris Popov, cited above, § 86).

45.  There has therefore been a violation of Article 5 § 5 of the Convention.ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

46.  Regarding the events of 8 January 2009, the applicant complained that the respondent State should be held liable for a violation of Article 10 of the Convention in relation to his mistreatment by an on-duty public official while he (that is to say the applicant) was gathering material intended to be used for news reporting.

47.  Article 10 of the Convention reads as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”The parties’ submissions

48.  The Government argued that the applicant had not exhausted domestic remedies because he had not lodged a separate civil claim (apparently, against D.) after the discontinuation of the criminal case against D. in early 2010 (see paragraph 11 above). He had lodged a separate civil claim against the State but had failed to discharge the burden of proof incumbent on him and had thus lost that case (see paragraph 14 above). In any event, that case had been related to the protection of his reputation and property but had had nothing to do with his freedom of expression.

49.  The applicant maintained his complaint.The Court’s assessmentAdmissibility

(a)   “Interference” with freedom of expression

50.  According to the applicant, seeing what might be perceived as unlawful conduct on the part of the on-duty senior officer of the traffic police – and given that, as the applicant put it, that conduct amounted to the basis for a potential news story – the applicant had tried to take photographs of the police vehicle with the intention of using it for the purpose of news reporting.

51.  The gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 128, 27 June 2017, and Butkevich v. Russia, no. 5865/07, § 123, 13 February 2018). The Court has also held in cases relating to the print media that freedom of expression includes the publication of photographs (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 103, ECHR 2012; Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, §§ 29 and 40, 14 December 2006; and Österreichischer Rundfunk v. Austria (dec.), no. 57597/00, 25 May 2004).

52.  It has not been contested, and the Court accepts, that the applicant was present at the venue of an upcoming protest rally. Seeing a potential news story in what might have been perceived as unlawful conduct on the part of an on-duty public officer, the applicant tried to take photographs with the clear intention of using them for the purpose of news reporting – namely, as a freelance journalist for a specific Internet news portal (see, within a similar context, Butkevich, cited above, §§ 121-24 and 130-31).

53.  Having regard to the above elements taken as a whole, the Court accepts in the present case that the applicant’s taking of photographs constituted his exercising the freedom to “receive and impart information and ideas” (compare Ashby Donald and Others v. France, no. 36769/08, § 34, 10 January 2013, and Nix v. Germany (dec.), no. 35285/16, § 43, 31 March 2018, which concerned the dissemination of photographs in other contexts).

(b)   Exhaustion of domestic remedies

54.  That said, it was incumbent on the applicant to exhaust domestic remedies in relation to his complaint of an “interference” with his freedom of expression (as described above) on the part of the State – namely on account of the on-duty officer’s conduct vis-à-vis the applicant.

55.  First of all, as regards civil-law remedies against D. as a private person, even if those remedies might have offered some prospect of success, they would not have addressed the primary issue of State liability under the Convention for actions undertaken by an on-duty officer (see Öneryıldız v. Turkey [GC], no. 48939/99, §§ 148-49, ECHR 2004‑XII; see also O’Keeffe v. Ireland [GC], no. 35810/09, §§ 115, 177 and 179, ECHR 2014 (extracts)).

56.  The applicant did initiate proceedings against the State on account of the elements that underlie his present complaint before the Court under Article 10 of the Convention (pecuniary and non-pecuniary damage caused by a public official when the applicant attempted to take photographs). Indeed, as pointed out by the Government, the applicant’s case was examined on the merits and was dismissed for lack of sufficient evidence; in any event, the applicant did not specifically refer to freedom of expression in his civil case. However, the Court does not need to address those arguments for the following reasons.

57.  It is noted that similar grievances on the part of the applicant formed part of the subject of the criminal proceedings against D. The applicant’s private criminal complaint was blocked because at the time in question a criminal investigation was already pending (see paragraph 8 above). The public prosecutor decided to drop the charges, and the criminal court had no choice under Russian law but to discontinue the case (see paragraph 11 above). A further attempt by the applicant to bring a fresh private prosecution was blocked by that decision (see paragraph 12 above). It has not been argued that criminal-complaint procedures did not constitute a remedy that had to be exhausted, given the factual context of the case (compare Annenkov and Others v. Russia, no. 31475/10, § 106, 25 July 2017). Overall, the applicant afforded the national authorities an adequate opportunity to deal with the facts underlying his Convention complaint and to afford redress. Thus, the Court is not prepared in the present case to dismiss the complaint under Article 10 of the Convention for failure to exhaust domestic remedies.

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

59.  Freedom of expression constitutes one of the essential foundations of a “democratic society” and one of the basic conditions for its progress and for each individual’s self-fulfilment. This freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, as a recent authority, Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 124).

60.  The Court’s task under Article 10 of the Convention in the present case is not to establish the fact and extent of criminal liability on the part of any public official but to determine whether the applicant’s freedom of expression was “interfered” with by the “State” in a manner that was not “prescribed by law” and/or that was not “necessary in a democratic society” in the pursuance of a legitimate aim listed in paragraph 2 of Article 10.

61.  The Court finds it established that a public official applied some degree of physical force against the applicant, also causing damage to his property. Nothing discloses that it was justifiable in the circumstances of the present case, inter alia, on account of the applicant’s own conduct.

62.  Having examined the available material, the Court considers that the circumstances of the case disclosed a disproportionate “interference” with the applicant’s freedom to impart information and ideas on account of his attempt to take photographs of what he reasonably perceived at the time to be unlawful conduct on the part of a public official.

63.  There has therefore been a violation of Article 10 of the Convention.OTHER ALLEGED VIOLATIONS OF THE CONVENTION

64.  Lastly, the applicant also referred to Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention in relation to the events on 8 January 2009.

65.  Noting the findings in respect of the admissibility and merits under Article 10 of the Convention, and also noting the fact that the applicant’s representative did not make any observations regarding the above additional matters, the Court declares those complaints admissible but finds it appropriate to dispense with an examination on the merits.APPLICATION OF ARTICLE 41 OF THE CONVENTION

66.  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.”Damage

67.  The applicant claimed 5,000 euros (EUR) and EUR 120 in respect of non-pecuniary and pecuniary damage (the cost of repairing his camera) in relation to the complaint under Article 10 of the Convention about the events of 8 January 2009. He also claimed EUR 6,000 in respect of non‑pecuniary damage in relation to the events of 31 January 2009.

68.  The Government made no specific comment.

69.  The Court awards the applicant EUR 120 in respect of pecuniary damage; EUR 5,000 and EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable, on account of the violations of the Convention related to the events on 8 and 31 January 2009 respectively.Costs and expenses

70.  The applicant also claimed EUR 22,830 for Mr Burkov’s legal services at the national level and before the Court. Under a contract concluded in January 2009 Mr Burkov charged 7,500 Russian roubles per hour; the final amounts of work and costs were to be specified in a final invoice; payment could be sought from the applicant in domestic courts or, in the event of a favourable judgment of the Court, by way of a direct payment to Mr Burkov on account of the Court’s ruling under Article 41 of the Convention only within the limits of the amount actually awarded by the Court. Before the Court Mr Burkov asked that an award in respect of costs be paid to him directly.

71.  The Government made no specific comment.

72.  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 (see Merabishvili, cited above, §§ 370-71). In so far as the claim is related to the findings of violations of the Convention made by the Court, and regard being had to the documents in its possession (in particular, to the scope of the work actually and necessarily done by Mr Burkov as per the final invoice issued in November 2017) and to its case-law, the Court considers it reasonable to award EUR 2,000 covering costs under all heads. This sum should be paid to Mr Burkov.Default interest

73.  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,Declares the complaints under Article 5 §§ 1 and 5, Articles 10 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention admissible;Holds that there has been a violation of Article 5 § 1 of the Convention as regards the events on 31 January 2009;Holds that there has been a violation of Article 5 § 5 of the Convention as regards the events on 31 January 2009;Holds that there has been a violation of Article 10 of the Convention as regards the events on 8 January 2009;Holds that there is no need to examine the merits of the complaints under Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention as regards the events on 8 January 2009;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)        EUR 120 (one hundred and twenty euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)      EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that the respondent State is to pay Mr Anton Burkov, within three months, EUR 2,000 (two thousand euros) on account of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(c)  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;Dismisses the remainder of the claim for just satisfaction.

Done in English, and notified in writing on 24 March 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Paulo Pinto de Albuquerque
Deputy RegistrarPresident

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