CASE OF BELAN AND SVIDERSKAYA v. RUSSIA

THIRD SECTION

CASE OF BELAN AND SVIDERSKAYA v. RUSSIA

(Applications nos. 42294/13 and 42585/13)

JUDGMENT

STRASBOURG

12 February 2019

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

In the case of Belan and Sviderskaya v. Russia,

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

Helen Keller, President,
Pere Pastor Vilanova,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 22 January 2019,

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

PROCEDURE

1. The case originated in two applications (nos. 42294/13 and 42585/13) 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, Ms Yelena Sergeyevna Belan and Ms Svetlana Olegovna Sviderskaya (“the applicants”), on 2 and 4 June 2013 respectively.

2. 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 24 March 2014 the Government were given notice of the complaints under Articles 5, 10, 11 and Article 2 of Protocol No. 4 to the Convention in both applications, under Article 3 of the Convention in application no. 42585/13 and under Article 6 of the Convention in application no. 42294/13 and the remainder of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. The Government did not object to the examination of the applications by a Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The first applicant (Ms Belan) was born in 1961. The second applicant (Ms Sviderskaya) was born in 1949. They both live in Rostov-on-Don.

A. Notification of a public assembly

6. On 3 September 2012 the second applicant and Ms T. notified the local authority of their intention to hold a public assembly from 4 to 5 p.m. on 15 September 2012 in Sovetov Square in Rostov-on-Don. They indicated that the assembly would otherwise be held in front of the Lenin monument at the entrance to Gorkiy Park. The first applicant intended to take part in the public event.

7. On 5 September 2012 the authority suggested that the event should instead be held from 9.30 to 10.30 a.m. in the square in front of the City Library. On 6 September 2012 the event organisers dismissed the suggestion as unsuitable for the purposes of their assembly. On 12 September 2012 the authority insisted on their suggestion and refused to make another one because large-scale festive events were due to take place in the town on the proposed date. Ms T. withdrew her request to hold the planned event.

B. The applicants’ escorting to the police station and retention there

8. According to the first applicant, she decided to stage on 15 September 2012 a solo “picket” (одиночный пикет) from 2 to 3 p.m. at the entrance to Gorkiy Park. She chose the format of a solo “picket” because it did not require her to give prior notification to the authorities. At around 2.10 p.m., shortly after she had started, she was approached by police officers who ordered her to stop the “picket” and issued her with a formal warning for a violation of public order. One of the officers asked a passer-by, Mr Z., to hold her banner so that she could sign the warning. The events were recorded on video. At around 2.20 p.m. the applicant and Mr Z. were arrested and taken to a police station. The applicant remained there from 2.30 to 6 p.m. She was then allowed to leave.

9. According to the second applicant, from 1.30 to 2.45 p.m. on 15 September 2012 she staged a solo demonstration on a street corner opposite Gorkiy Park to protest against construction laws. On her way back home she walked through the park and at around 3 p.m. saw a man holding a banner. She approached him to read the banner, which read “I will not give up my freedom of choice, which is granted by God and the Constitution!”. She was immediately approached by a police officer, who ordered her to show her own banner but she refused. At 3.05 p.m. she was taken to a police station, where she saw the first applicant. According to the second applicant, she spent five hours at the police station (including two hours waiting outside for a copy of the record).

10. According to the relevant records, the first and second applicants were taken to the police station at 5.20 p.m. and 4.45 p.m. respectively for the purpose of compiling an administrative-offence record. The police station logbook indicated that the first applicant had been brought there at 4.20 p.m. and released at 6.30 p.m., and that the second applicant had been brought there at 4.45 p.m. and released at 6.45 p.m.

11. At the police station both applicants were accused of organising and holding a public event without giving prior notification to the authorities, in breach of Article 20.2 § 2 of the Code of Administrative Offences (hereinafter “the CAO”). The administrative-offence records indicated that the first applicant had held a public event at 3.45 p.m. and the second applicant at 3.10 p.m., and that both offences had been committed near the Lenin monument at the entrance to Gorkiy Park. The administrative case files contained handwritten reports by the two police officers who had arrested the applicants. Both reports contained descriptions of the applicants’ acts substantially similar to those contained in the administrative-offence records.

C. Administrative proceedings

1. The first applicant

12. On an unspecified date the case was transferred to a justice of the peace of Circuit no. 2 of the Leninskiy District of Rostov-on-Don. The trial court held several hearings. The applicant attended and was assisted by a representative, though it is unclear whether that person was a lawyer.

13. On 25 September 2012 the trial court held a hearing and heard various witnesses. Ms O. stated that she had seen the applicant standing in front of the entrance to Gorkiy Park with a banner and that a man and a woman had also been “standing on that square” with banners. Mr P. testified that he had wanted “to join the picket” at Gorkiy Park. Mr Z. stated that he had happened to be standing close to the first applicant and had taken her banner at the request of the police so that she could sign some papers.

14. At the same hearing the trial court dismissed an application by the defence seeking to admit two photographs and a video-recording (apparently showing the events of 15 September 2012) into evidence. The judge stated that it was unclear who had captured the footage and that they contained no indication of when and where they had been taken. However, at the defence’s request, the judge ordered the city police department to release the footage of two street cameras.

15. On 4 October 2012 the deputy chief of the city police department replied that the footage from one camera had been “saved” and invited the judge to provide an electronic storage device onto which it could be copied. However, on 18 October 2012 the acting head of the duty unit of the city police department informed the judge that the street camera footage could not be released because it had not been archived owing to a failure of the archiving system and “because those city cameras had not been working”.

16. The trial court summoned police officer A., who had arrested the first applicant, for questioning. At a hearing on 7 November 2012 A. stated that after receiving information from Sh., the chief of police station no. 4 (see paragraph 28 below), he had arrived at Gorkiy Park where he had seen a group of people, including Z., in possession of banners, without having given any prior notification of their public event, and that he also remembered arresting Ms Belan, though he could not remember her face. A. also stated that on 15 September 2012 officers from the regional bureau of forensic examinations (“forensic bureau”) within the regional police department had taken photographs of what appeared to be a public assembly.

17. On 7 November 2012 the trial court also allowed the examination of videos submitted by officers of police station no. 4 containing two clips relating to the events on 15 September 2012. One showed the applicant with a banner, while the other showed her reading a piece of paper and Mr Z. standing close to her and holding a banner above his head. The trial court later declared those clips inadmissible evidence. The trial court also granted a request by the defence for the forensic bureau to provide the photographs taken on 15 September 2012. The hearing was then adjourned.

18. On 12 November 2012 the chief of the city police department replied to that request, indicating that no photographs or video recordings had been taken on 15 September 2012 in front of the entrance to Gorkiy Park. It is unclear whether the forensic bureau was within that official’s purview.

19. In the meantime, on 9 November 2012 the same justice of the peace convicted the second applicant in separate proceedings dealing with the same events (see paragraph 28 below).

20. On 13 November 2012 the trial court convicted the applicant under Article 20.2 § 2 of the CAO and issued him with a fine of 20,000 Russian roubles (RUB – about 497 euros (EUR) at the time). The court based its findings on the statements of the witnesses O., P. and Z. and officer A.’s testimony. The court found it established that on 15 September 2012 a group of people with banners had held a public event in front of the entrance to Gorkiy Park, without having given prior notification to the authorities, and that the applicant had participated in that event.

21. The applicant lodged an appeal with the Leninskiy District Court of Rostov-on-Don, arguing that the Public Events Act (hereinafter “the PEA”) conferred on the regional authorities the power to determine the minimum distance between solo demonstrations. As no such specification had been made in the Rostov region, there was no legal justification for not treating people standing at even a short distance from each other as solo demonstrators or, by implication, for treating them as a public assembly.

22. It appears that the appellate court heard further evidence from the witness O., who stated that around 3 p.m. on 15 September 2012 she had approached the Lenin monument with the intention of expressing her views on the situation in the country; she had seen the applicant standing alone with a banner close to the monument. O. had positioned herself at a distance, closer to the city administration building. The applicant had then been approached by two police officers and had handed over her banner to a passer-by while signing a document, before being taken away. O. had also seen two other people standing with banners at a distance.

23. It also appears that the appellate court watched a video-recording at the applicant’s request, although its origin is unclear. It is also unclear whether this was one of the videos sought to be admitted into evidence at the trial.

24. On 3 December 2012 the District Court dismissed the applicant’s appeal. It dismissed O.’s testimony as unconvincing and complicit, noting that she had participated in the same event and was an acquaintance of the applicant. With regard to the above-mentioned video-recording, the court observed as follows:

“As regards the video examined at the hearing ... it shows [the applicant] holding a banner. It also shows different people. The video-recording was done without zoom so it is not possible to conclude whether [the applicant] was holding a demonstration alone or whether there were other participants. In any event, earlier other people were convicted of the same offence at the same time and place. This refutes [the applicant’s] argument about her solo demonstration.”

25. On 4 December 2012 the applicant lodged a complaint with the Rostov regional prosecutor’s office, seeking the institution of criminal proceedings against the police officers under Articles 149 and 286 of the Criminal Code (unlawful impediment to a public assembly and abuse of powers). She alleged that the termination of her solo demonstration and her arrest by the police had been unlawful. By a letter of 9 January 2013 the regional prosecutor’s office replied that the decisions of 13 November and 3 December 2012 were not amenable to appeal.

26. On 28 December 2012 the justice of the peace granted permission to the applicant to pay the administrative fine of RUB 20,000 in three instalments.

27. On 6 March and 20 May 2013 the deputy president of the Rostov Regional Court upheld the decisions of 13 November and 3 December 2012. The applicant did not apply for a further review of those court decisions before the Supreme Court of Russia.

2. The second applicant

28. On 9 November 2012 the same justice of the peace convicted the second applicant under Article 20.2 of the CAO for holding a public assembly without giving prior notice to the authorities. The court heard several witnesses, including two defence witnesses and the two police officers who had arrested her. Officer Sh. stated (see paragraph 16 above) that there had initially been four solo demonstrators but they had later started to gather together. The applicant had been walking amongst them and had put down her banner when she had been told by the police that she was conducting herself in an unlawful manner; subsequently, the four demonstrators had positioned themselves in pairs.

29. The justice of the peace found that the applicant had held a group public event together with three other participants and concluded that in the circumstances of the case it was appropriate to issue her with the minimum statutory fine of RUB 20,000.

30. The applicant appealed. On 6 December 2012 the Leninskiy District Court of Rostov-on-Don examined her appeal and upheld the earlier judgment.

31. On 10 December 2012 the second applicant lodged a complaint with the Rostov regional prosecutor’s office, similar to that lodged by the first applicant (see paragraph 25 above). The second applicant alleged that she had been placed under administrative arrest, which had been unlawful because no written record of it had been made by the police. On 9 January 2013 the regional prosecutor’s office replied that the decisions of 9 November and 6 December 2012 were not amenable to appeal.

32. By a decision of 26 December 2012 the justice of the peace allowed the applicant to pay the administrative fine in three monthly instalments (two instalments of RUB 7,000 and one of RUB 6,000). This was the best possible solution under Article 31.5 of the CAO. The court took note of the fact that the applicant received an old-age pension of RUB 5,561 (EUR 138 at the time) per month. It was not specified whether she had any other income.

33. In the meantime, the second applicant applied for a supervisory review of the decisions of 9 November and 6 December 2012, arguing, inter alia, that she was in a precarious financial situation. She asked for the fine to be reduced to below the statutory minimum, in accordance with a ruling of the Russian Constitutional Court made on 14 February 2013. On 6 March and 29 May 2013 the deputy president of the Rostov Regional Court upheld the judgments, stating, in particular, that the amount of fine was “within the scope of the statutory requirement”. On 10 January 2014 the Supreme Court of Russia also upheld the judgments.

II. RELEVANT DOMESTIC LAW AND PRACTICE

34. For a summary of domestic law and practice concerning regulations relating to the conduct of public events, liability for breaches committed in their course and administrative escorting and arrest, see Lashmankin and Others (nos. 57818/09 and 14 others, §§ 216-312, 7 February 2017) and Novikova and Others v. Russia (nos. 25501/07 and 4 others, §§ 47-85, 26 April 2016).

35. In the Rostov region, Regional Law no. 146-3C of 27 September 2004 complements the federal regulations on public gatherings. In December 2012 that law was amended to provide that the distance between solo demonstrations should be at least fifty metres (section 2).

36. Section 26 of the Prosecutors Act (Federal Law no. 2202-1 of 17 January 1992) provides that prosecutors supervise the observance of human rights and freedoms by State authorities and private bodies. They may examine and review complaints and requests containing information concerning alleged violations of individual rights and freedoms, explain the avenues of protection for those rights and freedoms, issue warnings about the unacceptability of violations and to bring those who have violated the law to account (section 27 § 1). In particular, if a prosecutor has grounds to suspect that a crime has been committed, he or she can take measures to ensure that the perpetrators are prosecuted in accordance with the law (section 27 § 2). A prosecutor or a deputy prosecutor may complain about acts violating individual rights to the competent authority which issued such an act or to the court (section 28).

THE LAW

I. JOINDER OF THE APPLICATIONS

37. 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 3 OF THE CONVENTION

38. The second applicant complained that the amount of the administrative fine imposed on her had been in breach of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

39. The Government contested that argument. They submitted that the applicant had been allowed to pay her fine in three monthly instalments. Besides, the constitutional ruling of 14 February 2013 had been delivered after the examination of her case by the justice of the peace. In any event, according to that ruling, a court could, but was not obliged, to reduce the amount of an administrative fine to below the limit set by law.

40. The applicant maintained her complaint.

41. The Court has not excluded that the responsibility of the State may be engaged under Article 3 of the Convention in circumstances where an applicant who is wholly dependent on State support finds him or herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity (see Budina v. Russia (dec.), no. 45603/05, 18 June 2009; M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 253, ECHR 2011; and Tarakhel v. Switzerland [GC], no. 29217/12, § 98, ECHR 2014 (extracts)).

42. The Court observes that in the present case the applicant was ordered to pay a fine of more than three times her monthly old-age pension (see paragraph 32 above). Non-payment of that fine could have entailed prosecution for a separate offence under Article 20.25 of the CAO, resulting in a doubled fine or administrative detention.

43. At the same time, it is noted that the domestic court fined the applicant the minimum amount possible under Article 20.2 § 2 of the CAO. Moreover, the justice of the peace allowed it to be paid in three monthly instalments, which was the best possible solution under Article 31.5 of the CAO. Indeed, the constitutional ruling of 14 February 2013 made it possible for the domestic courts to reduce the fine to below the statutory minimum. The matter was examined by the reviewing courts, which considered that the lower courts had reached reasoned conclusions when determining the applicant’s penalty. The Court further notes that the applicant did not specify in the domestic proceedings or before the Court whether she had any other income in addition to her pension. In any event, she paid the fine on time in three instalments and was not prosecuted under Article 20.25 of the CAO.

44. On the basis of the material in its possession, the Court finds no indication that payment of the administrative fine placed the second applicant in a situation of serious deprivation or want incompatible with human dignity. Therefore, even though her situation was difficult, the Court considers that there are insufficient elements to conclude that the second applicant was subjected to inhuman or degrading “punishment” within the meaning of Article 3. It follows that this complaint is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

45. The applicants complained that they had been unlawfully deprived of their liberty on 15 September 2012. They relied on Article 5 § 1 of the Convention, 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:

... (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; ...”

46. The Government submitted that the applicants had been escorted to the police station for the purpose of compiling an administrative-offence record and had been retained there for two hours, which was not excessive.

47. The applicants maintained their complaints.

48. As to the first applicant, she confined her complaint under Article 5 of the Convention to stating that the police officer had not warned her about her ongoing unlawful conduct and had not respected the procedure for terminating a public event, and that the arrest had been sudden and thus unlawful. In the Court’s view, those submissions do not disclose any essential element pertaining to the legality of this type of deprivation of liberty under Russian law. Nor do they disclose any arbitrariness on the part of the authorities. Accordingly, this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. This finding is, however, without prejudice to examining the same facts as part of the “interference” under Articles 10 and 11 of the Convention below.

49. As to the second applicant, the Court notes that matters pertaining to legality of her deprivation of liberty on 15 September 2012 were not raised or assessed in the administrative proceedings against her. However, she lodged a separate complaint with the regional prosecutor’s office, apparently, under the Prosecutors Act (see paragraphs 31 and 36 above). She received a reply dismissing her complaint on 9 January 2013, and chose not to challenge it by way of a judicial review. However, the Court does not need to determine whether the above-mentioned procedure should be taken into account for the purpose of the six-month rule under Article 35 § 1 of the Convention (see, albeit in the context of issues under Article 3 of the Convention, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 102-104, 10 January 2012; Koryak v. Russia, no. 24677/10, § 80-81, 13 November 2012; Dirdizov v. Russia, no. 41461/10, §§ 76-77, 27 November 2012; and compare with Sakhvadze v. Russia, no. 15492/09, §§ 67-68, 10 January 2012), in particular, as regards any reasonable prospect of success after an arrested defendant’s final conviction for an administrative offence.

50. In any event, the applicant did not argue at the domestic level or before this Court that her deprivation of liberty had been unlawful on account of the domestic authorities’ failure to demonstrate that it had been impossible to compile an administrative-offence record on the spot at the location of the demonstration (see, mutatis mutandis, Butkevich v. Russia, no. 5865/07, § 62, 13 February 2018). Instead, the only argument under Article 5 § 1 of the Convention was confined to alleging that she had been placed under administrative arrest while no arrest record had been compiled. The Court notes that under Article 27.2 of the CAO the statutory purpose of the escort procedure is to facilitate the compiling of an offence record when it could not be done on the spot where the offence was discovered (in the present case at the entrance to Gorkiy Park). It appears that under the CAO the escort procedure comprises the initial stage of taking a person to a police station as well as the ensuing period taken for compiling the offence record. The police did compile a written record for the escort procedure. It is also noted that the applicant’s presence at the police station was formalised and acknowledged in a police station logbook. The available material before the Court does not lead to the conclusion that either of these two periods was otherwise in breach of Russian law, for instance, on account of any need for further records to be compiled.

51. Furthermore, it is not contested that the applicant was escorted to the police station in a sufficiently swift manner. Following her arrival there at 4.45 p.m., an administrative-offence record was compiled and she was released at 6.45 p.m. The whole period of her “deprivation of liberty” at the police station was two hours, which did not exceed what was necessary in the circumstances (compare with Ursulet v. France (dec.), no. 56825/13, §§ 47-49, 8 March 2016). The Court finds no reason to take into account the two hours that the applicant appeared to have spent voluntarily outside the police station, as she had been free to move around or leave.

52. It follows that this complaint is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

53. In so far as it has been accepted that the applicants were “deprived of [their] liberty” on 15 September 2012, and thereby subjected to a more intrusive measure, and the absence of any allegations or submissions from the applicants in that regard, the Court considers that no separate issue arises under Article 2 § 1 of Protocol No. 4 to the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

54. The first applicant complained that the requirements of fairness, including equality of arms, had not been respected in the CAO proceedings against her. She relied on Article 6 §§ 1 and 3 (b) of the Convention, which in so far as relevant read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence ...”

55. The applicant complained about the domestic court’s failure to obtain (i) the street camera footage that could show the events of 15 September 2012, and (ii) the photographs taken by the police on that date. The applicant subsequently maintained her complaint.

56. The Government submitted that Article 6 of the Convention was not applicable to the contested proceedings, because the applicant had been charged with an administrative rather than a criminal offence. They further argued that the applicant had been able to argue her case in the domestic courts. In particular, she and her representative had lodged an application for the examination of a video-recording, which had been granted by the appellate court. While the justice of the peace had refused the representative’s request to admit two photographs and a video-recording into evidence, it had granted his application for the release of street camera footage which could allegedly show the events of 15 September 2012. The Government concluded that the domestic courts had examined and assessed all the evidence at their disposal.

57. The Court has previously found that Article 6 of the Convention is applicable under its criminal limb to proceedings involving charges under Article 20.2 of the CAO punishable by a fine or community work (see Mikhaylova v. Russia, no. 46998/08, § 69, 19 November 2015, and Tsukanov and Torchinskiy v. Russia [Committee], nos. 35000/13 and 35010/23, § 33, 17 April 2018). It sees no reason to depart from that finding in the present case.

58. The Court considers it unnecessary to examine the applicant’s allegations separately from the standpoint of Article 6 § 3 (b) and will examine whether the proceedings in their entirety were fair (see Fitt v. the United Kingdom [GC], no. 29777/96, § 43, ECHR 2000‑II). Article 6 § 1 of the Convention requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (ibid., § 44, and Natunen v. Finland, no. 21022/04, § 39, 31 March 2009). The entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Natunen, cited above, § 40). Failure to disclose to the defence material evidence which contains such particulars as could enable the accused to exonerate himself or have his sentence reduced would constitute a refusal of facilities necessary for the preparation of the defence, and therefore a violation of the right guaranteed in Article 6 § 3 (b) of the Convention (ibid., § 43).

59. At the trial the applicant was accused of running a non-notified group event in breach of the PEA. Her line of defence was that until the moment of her arrest on 15 September 2012 she had been holding a solo “picket” and had not been involved in any group event (see paragraph 8 above). It was thus indispensable for the domestic courts to clarify the circumstances of her arrest, which were central to the determination of the administrative charge (see, mutatis mutandis, Kasparov and Others v. Russia, no. 21613/07, § 64, 3 October 2013).

60. The Court observes that the focus of the applicant’s complaint is on the domestic court’s alleged failure to assist her in obtaining evidence that might be favourable to the defence rather than on the concealment of evidence by the police. Indeed, there is insufficient evidence to suggest that the police or another public authority disposed of any video or photographic material (compare Natunen, cited above, § 44) prematurely or otherwise unlawfully, in particular, with the aim or effect of obstructing its disclosure in the proceedings against the applicant.

61. The Court notes that while refusing to admit the video-recording submitted by the applicant’s representative into evidence, the trial court granted his application for the release of street camera footage by the city police department. While it is unclear why the police provided two contradictory replies dated 4 and 18 October 2012 as to this footage, the Court considers that the unavailability of that piece of evidence was counterbalanced by the approach taken by the appellate court in the present case. The appellate court did examine the video-recording submitted by the applicant’s representative, which showed a number of people and the applicant standing with a banner (see paragraph 24 above). It gave a proper assessment to that piece of evidence and considered that it did not refute the findings of the trial court that the applicant had participated in a group event. The applicant did not specify whether the street camera footage might contain any information different to that on the video-recording submitted by her representative or might otherwise strengthen her case.

62. The Court further notes that the trial court granted the request by the applicant’s representative and ordered the relevant authority to submit the photographs taken by its officials on 15 September 2012, but to no avail. It is indeed unclear why the city police department replied that no photographs had been taken at the venue of the public event on that date, given police officer A.’s testimony. However, the Court is not convinced by the applicant’s allegations that those photographs could have been the crucial piece of evidence in her trial. It observes that the trial court had already watched a video-recording, allegedly made by the police on 15 September 2012, which showed the applicant standing with a banner, then the applicant reading a piece of paper and Z. holding a banner above his head. Despite the fact that the court declared that recording inadmissible evidence, the events shown on it were also described by the witnesses O. and Z. in their testimony at the trial and appeal hearings. The applicant was afforded an opportunity to effectively challenge it. The Court cannot speculate as to whether the impugned photographs could show different events than those depicted on the video-recording. However, it does not consider that obtaining those photographs was vital to the applicant’s defence. She did not show how they could have enabled her to prove that she had staged a solo demonstration and had not taken part in a group event (see paragraphs 68-69 below; compare Georgios Papageorgiou v. Greece, no. 59506/00, § 37, 9 May 2003, and M v. the Netherlands, no. 2156/10, § 68, 25 July 2017).

63. The Court concludes that the domestic courts exhausted every reasonable opportunity to establish the circumstances underlying the charge against the applicant and afforded her a reasonable opportunity to put forward a viable defence in the course of the trial proceedings in September to November 2012 and on appeal. Lastly, it is noted that the applicant was assisted by a representative and was not in detention or restricted in her ability to have access to the case file. The administrative proceedings, taken in their entirety, complied with the fairness requirement. It follows that this complaint is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V. ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF THE CONVENTION

64. The applicants complained that the authorities’ actions in respect of them constituted unlawful and disproportionate interference with their rights to freedom of expression and freedom of peaceful assembly. They relied on Articles 10 and 11 of the Convention, which read as follows:

Article 10

“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 ...”

Article 11

“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

65. 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

66. The applicants maintained their complaints.

67. The Government reiterated their submissions concerning the statutory regulation of public events, made in Novikova and Others (cited above, §§ 95-96). They further submitted that the local authority had proposed an alternative location and timeslot to the organisers, including the second applicant, for holding their public event, but they had refused to accept this proposal. Instead, the applicants had decided to hold a group “picket” in front of the Lenin monument at the entrance to Gorkiy Park and had tried to convince the authorities that they had been holding solo demonstrations. The domestic courts had reasonably rejected this argument and had come to a reasoned conclusion that the applicants together with two other persons had held a group public event without giving prior notice, which had breached public order. The fines imposed on the applicants had been within the statutory limits and proportionate to the committed offences.

2. The Court’s assessment

68. Relying on its findings in Novikova and Others (cited above, §§ 131, 133 and 189), the Court notes that while in June 2012 the PEA was amended to specify that a distance be observed between unrelated solo demonstrators, by 15 September 2012 the regional legislature had not yet exercised its mandate to specify the relevant minimum distance (see paragraph 35 above). Thus, solo demonstrators, such as the applicants asserted to be, could not rely in the exercise of their freedom of expression on a foreseeable legislative framework which, at the same time, had the potential of interfering with that freedom by way of classifying certain conduct or omissions as an offence on account of a breach of the notification requirement under the PEA.

69. The Court has taken note of the domestic courts’ findings that the applicants held a group public event in the form of a “picket” without giving prior notice. It observes that, in so far as it was crucial to ascertain whether the applicants were involved in a single “assembly” with others (in the present case, also with each other), the same justice of the peace examined the cases of both applicants, heard both adverse and defence witnesses and gave an assessment of all the available evidence. However, even accepting that the applicants did indeed hold a group public event rather than solo demonstrations (see, in particular, paragraph 28 above), and that the authorities thus interfered with their right of peaceful assembly, the Court considers that the circumstances of the case still disclose a violation of Article 11 of the Convention interpreted in the light of Article 10.

70. The parties agreed that there had been interference with the applicants’ right to peaceful assembly, although they had different views as to the elements of that interference. In view of the Court’s conclusion that the applicants had held a group public event, it considers that the interference by the authorities consisted of the termination of the applicants’ participation in the event, their arrest at the venue of the event and their administrative conviction. Such interference constitutes a breach of Article 11 of the Convention unless it is prescribed by law, pursues one or more legitimate aims under paragraph 2 of that provision and is “necessary in a democratic society”.

71. The Court has consistently found a violation of Article 11 of the Convention in situations where participants of a public gathering were arrested and convicted of administrative offences for the sole reason that the Russian State authorities perceived their public gathering to be unauthorised (see, as a most recent authority, Lashmankin and Others, cited above, §§ 459-63 and 475, and the cases cited therein). Having examined the proportionality of the interference in those cases, the Court discerned, in the absence of any acts of violence on the part of the demonstrators, no “pressing social need” for their arrest and conviction for an administrative offence.

72. In view of the domestic decisions and other material submitted by the parties, the Court has not identified any fact or argument capable of persuading it to reach a different conclusion in the present case. It observes that both applicants were arrested and sentenced to non-negligible fines for holding a group public event without giving prior notice. It was not suggested that they had demonstrated any violent behaviour or in any other way disrupted peace or public order. Nor did the authorities explain why they had preferred not to allow the demonstrators, including the applicants, to complete their assembly and to impose a reasonable fine on the spot or later on (see, mutatis mutandis, Novikova and Others, cited above, § 175). Accordingly, the Court considers that in the instant case the overall reaction of the domestic authorities (see paragraph 70 above) towards the applicants’ freedom of assembly was not “necessary in a democratic society”.

73. There has therefore been a violation of Article 11 of the Convention in respect of each applicant.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. 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.”

75. The applicants did not submit a claim for just satisfaction. There are no compelling considerations in favour of making an award, despite the applicants’ non-compliance with Rule 60 § 1 of the Rules of Court (see Nagmetov v. Russia [GC], no. 35589/08, §§ 80-81, 30 March 2017).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints under Article 11 of the Convention admissible and the complaints under Articles 3, 5 and 6 of the Convention inadmissible;

3. Holds that there has been a violation of Article 11 of the Convention in respect of each applicant.

Done in English, and notified in writing on 12 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelen Keller
Deputy RegistrarPresident

 

Full & Egal Universal Law Academy