CASE OF GRIGORYEV AND IGAMBERDIYEVA v. RUSSIA

THIRD SECTION

CASE OF GRIGORYEV AND IGAMBERDIYEVA v. RUSSIA

(Application no. 10970/12)

JUDGMENT

STRASBOURG

12 February 2019

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

In the case of Grigoryev and Igamberdiyeva 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 an application (no. 10970/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Yakov Aleksandrovich Grigoryev and Ms Kamola Dilmuratovna Igamberdiyeva (“the applicants”), on 18 January 2012.

2. The applicants were represented by Ms K. Mehtiyeva, a lawyer practising in Paris. 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 30 June 2017 notice of the complaints under Articles 5 § 1, 10 and 11 was given to the Government and the remainder of the application was 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 (Mr Grigoryev) was born in 1984 and lives in Svetlogorsk. The second applicant (Ms Igamberdiyeva) was born in 1989 and lives in Kaliningrad.

6. On an unknown date the second applicant notified the Kaliningrad authorities of her intention to hold a group public event on 12 December 2010 in Pobeda Square. The authorities replied that preparations for the New Year celebrations were planned on that day; they did not suggest an alternative venue. The second applicant did not challenge the authority’s reply before the domestic courts. Both applicants decided to stage solo demonstrations near the monument to “Mother Russia” instead; this did not require prior notification.

7. According to the applicants, on 12 December 2010 the first applicant staged a solo demonstration holding a banner saying “Freedom for Khodorkovskiy and Lebedev! We plead for a lawful judgment”. After he had completed his demonstration and placed himself at a distance of some twenty metres, the second applicant held her own solo demonstration. She was wearing a T-shirt saying “Freedom for Khodorkovskiy and Lebedev!” She completed her demonstration in five minutes. Then the first applicant returned to the venue with his banner and remained there for about two minutes, until police officers took him to a police van. He was then taken to a police station and held there for over three hours.

8. According to the Government, at 4 p.m. on 12 December 2010 the applicants participated in a group public event in the form of a “picket” (пикетирование) using visual props, namely a banner and a T-shirt. At 4 p.m. the first applicant was taken to the Leninskiy district police station. Between 5.15 p.m. and 6.30 p.m. a duty officer drew up an administrative offence record in respect of the first applicant. He was accused of taking part in a group public event held without authorisation, an offence under Article 20.2 § 1 of the Code of Administrative Offences (hereinafter “the CAO”). On 14 December 2012 the second applicant was called to the Leninskiy district police station, where she was accused of a similar offence, although it was classified under Article 20.2 § 2 of the CAO.

9. The cases against the applicants were submitted to a justice of the peace of court circuit no. 2 of the Leninskiy District of Kaliningrad. The court ordered the police to submit a video recording showing the events of 12 December 2010. By two judgments of 3 March 2011 the justice of the peace found that the applicants had held solo demonstrations and had not breached the Public Events Act (hereinafter “the PEA”), including its prior notification requirement applicable to group events. The court relied, inter alia, on the video recording submitted by the police. The administrative cases against the applicants were discontinued for lack of the elements of the offences under Article 20.2 §§ 1 and 2 of the CAO.

10. The police lodged an appeal. On 16 May 2011 the Leninskiy District Court of Kaliningrad upheld the judgments. The appellate court also considered that it had not been confirmed that the applicants had in fact taken part in a group “picket”.

11. The applicants sought compensation of 100,000 roubles (RUB)[1] each for unlawful deprivation of liberty and violation of their right to freedom of expression by way of solo demonstration. By a judgment of 15 July 2011 the Tsentralniy District Court of Kaliningrad found that taking the first applicant to the police station had been unlawful, and awarded him RUB 10,000 (equivalent to 250 euros (EUR) at the time) in respect of non-pecuniary damage. On 25 July 2011 the same court also granted the claims by the second applicant, having found that preventing her from staging a solo demonstration and consequently prosecuting her had been unlawful. The court also awarded the second applicant RUB 10,000 for non-pecuniary damage.

12. The first applicant appealed against the judgment of 15 July 2011, complaining, inter alia, about the amount of the compensation and the first‑instance court’s failure to make specific findings in relation to the violation of his freedom of expression on account of the police intervention in his solo demonstration. On 7 September 2011 the Kaliningrad Regional Court upheld the judgment. Relying on Article 27.1 § 2 of the CAO and Article 1070 § 2 of the Civil Code, it ruled that it followed from the discontinuation of the CAO case that placing the first applicant under administrative escort and arrest had been unlawful under Russian law as well as “unjustified” (необоснованные). The appellate court also considered that the interference with freedom of expression had been acknowledged by the declaration that taking the first applicant to the police station had been unlawful.

13. The second applicant also appealed. On 21 September 2011 the Kaliningrad Regional Court upheld the judgment of 25 July 2011.

II. RELEVANT DOMESTIC LAW AND PRACTICE

14. For a summary of domestic law and practice concerning regulations relating to the conduct of public events, liability for breaches committed during such events, and administrative escort 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.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLES 5 § 1, 10 and 11 OF THE CONVENTION

15. Referring to Articles 5 § 1, 10 and 11 of the Convention, the first applicant complained about being taken to the police station and held there, and the second applicant complained about being prosecuted for an administrative offence. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), the Court considers that this complaint falls to be examined under Article 10 of the Convention, and Article 5 § 1 as regards the first applicant. The relevant parts of Articles 5 and 10 read as follows:

Article 5

“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; ...”

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 ...”

16. The Government argued that the domestic authorities had acknowledged the unlawfulness of the actions concerning prevention of both applicants from holding their solo demonstrations and their administrative prosecution, and the first applicant’s being taken to the police station and held there for some time. Both applicants had been awarded reasonable compensation and thus their rights had been fully restored at the national level.

17. The applicants submitted that they had staged solo demonstrations which did not require prior notification. The police had not explained in what manner the applicants’ actions had constituted a breach of the Russian legislation or public order. Neither had they justified the first applicant’s being taken to the police station and held there for three hours. The applicants further claimed that they had remained victims of a violation of their rights guaranteed by the Convention.

A. Admissibility

18. First of all, the Court notes that the first applicant’s complaint under Article 5 § 1 of the Convention was lodged on 18 January 2012, while his deprivation of liberty had ceased on 12 December 2010. However, following the discontinuation of the related administrative-offence proceedings the applicant brought civil proceedings for compensation that ended on 7 September 2011 and were partly successful (see paragraph 11 above). The Court considers that those proceedings should be taken into account for the purposes of the six-month rule under Article 35 § 1 of the Convention. It follows that the first applicant has complied with this rule. This has not been contested, and the Court accepts that the same considerations are valid for the complaint under Article 10 of the Convention.

19. The Court also reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim”, unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention right or freedom (see Öztürk v. Turkey [GC], no. 22479/93, § 73, ECHR 1999‑VI). Redress so afforded must be appropriate and sufficient, failing which a person can continue to claim to be a victim of the violation (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 181, ECHR 2006‑V).

20. The Court notes that both applicants claimed and received compensation at the domestic level before lodging an application before the Court. It considers that the issue of victim status is closely linked to the substance of the first applicant’s complaints and must be joined to the merits.

21. As regards the second applicant, it is common ground between the parties that she was not hindered and was able to complete her demonstration on 12 December 2010; the demonstration, by her own choice, lasted five minutes. It does not appear therefore that there was an intervention by the police in the exercise of her right to freedom of expression. As regards the subsequent prosecution of the second applicant, she was accused of an offence of an administrative nature (rather than of a criminal offence stricto sensu); that prosecution resulted in the discontinuation of the proceedings. The trial, which lasted from March until May 2011, was thus not overly long. The second applicant was not deprived of her liberty after the demonstration or during the trial; neither did she face other restrictions on her rights (compare Döner and Others v. Turkey, no. 29994/02, § 88, 7 March 2017). The domestic courts acknowledged a violation of the second applicant’s right to freedom of expression on account of her unlawful prosecution for an offence of an administrative nature, and awarded her compensation for non-pecuniary damage of EUR 250. Even assuming that there was an “interference” and that the second applicant can still claim to be the victim of a breach of Article 10 of the Convention on account of the mere fact of being prosecuted, which lasted some time, albeit without incurring any other adverse consequences in connection with the prosecution (compare Dilipak v. Turkey, no. 29680/05, §§ 44-51, 15 September 2015, and Çölgeçen and Others v. Turkey, nos. 50124/07 and 7 others, §§ 39-40, 12 December 2017), the Court considers that 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.

22. The Court notes that the first applicant’s complaints under Article 5 § 1 and 10 of the Convention 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

23. The Court has previously found that the arrest and detention of protesters may constitute an interference with the right to freedom of expression (see Dilek Aslan v. Turkey, no. 34364/08, § 67, 20 October 2015, and the cases cited therein). In the present case the first applicant staged a solo demonstration holding a banner demanding a fair trial for two well‑known figures. The first applicant’s demonstration was not interrupted. He thereby exercised, without hindrance, his right to freedom to “impart information and ideas” and “to hold opinions”. However, his later being taken to the police station and prosecuted for an administrative offence were both related to his having expressed opinions and disseminated information, and therefore constituted “interference” with his rights guaranteed under Article 10 of the Convention. The fact that the prosecution for an administrative offence resulted in the discontinuation of the administrative proceedings against the first applicant does not alter that finding.

24. The Court reiterates that the Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto (see Correia de Matos v. Portugal [GC], no. 56402/12, § 116, 4 April 2018). The Court has no doubt that the domestic courts in the present case attempted, in good faith and to the best of their ability, to assess the level of suffering, distress, anxiety or other harmful effects sustained by the applicant. It reiterates that such an assessment should be carried out in a manner consistent with the domestic legal requirements and take into account the standard of living in the country concerned, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases (see Cocchiarella v. Italy [GC], no. 64886/01, § 80, ECHR 2006‑V, and Vasilevskiy and Bogdanov v. Russia, nos. 52241/14 and 74222/14, § 23, 10 July 2018).

25. However, even assuming that the domestic court’s finding of unlawfulness regarding the first applicant’s being taken to the police station from the site of his solo demonstration constituted, in substance, an acknowledgment of the violation of his freedom of expression, the Court is not satisfied that the amount of EUR 250 constituted adequate and sufficient redress in respect of the interference, which was both unlawful and disproportionate as indicated in paragraphs 26 and 27 below (see Novikova and Others, cited above, § 218). The award was by no means comparable to what could be awarded under Article 41 of the Convention either under Article 5 § 1 or Article 10 of the Convention (see Scordino v. Italy (no. 1), §§ 181 and 202; Novikova and Others, §§ 222-25 and 231, both cited above; Tsvetkova and Others v. Russia, nos. 54381/08 and five others, § 203, 10 April 2018; Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 98, 26 June 2018; see also, mutatis mutandis, Vasilevskiy and Bogdanov, cited above, § 23). The Court further observes that although the domestic courts accepted that there had been no need to take the first applicant to the police station, they did not acknowledge the violation relating to the exercise of his freedom of expression (compare Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 88, ECHR 2012). Thus, the first applicant remained a victim of the alleged violations under Articles 5 § 1 and 10 of the Convention when he lodged the application before the Court. The Government’s objection as to the first applicant’s victim status should be therefore dismissed.

26. For its part, as to the merits of the complaint under Article 10 of the Convention, the Court does not discern any compelling reasons that justified taking the first applicant to the police station. The Court therefore concludes that he was a victim of, at the very least, disproportionate interference with his freedom of expression on account of his being taken to the police station.

27. As to Article 5 § 1 of the Convention, the domestic courts acknowledged that the first applicant’s being taken to the police station had been in breach of Russian law. The Court sees no reason to disagree.

28. There have accordingly been violations of Articles 5 § 1 and 10 of the Convention in respect of the first applicant.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

29. 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

30. Mr Grigoryev claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

31. The Government contested the claims for non-pecuniary damage as excessive and unreasonable.

32. Taking into account the nature and scope of the violations of Articles 5 § 1 and 10 of the Convention and the domestic award, the Court awards Mr Grigoryev EUR 1,700 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

33. Mr Grigoryev did not submit any claims under this head. Accordingly, there is no call to award him any sum on that account.

C. Default interest

34. 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,

1. Joins the issue of the first applicant’s “victim status” to the merits of his complaints under Articles 5 § 1 and 10 of the Convention, and holds that the first applicant has victim status in relation to those complaints;

2. Declares the complaints under Articles 5 § 1 and 10 of the Convention lodged by the first applicant admissible and the remainder of the application inadmissible;

3. Holds that there have been violations of Articles 5 § 1 and 10 of the Convention in respect of the first applicant;

4. Holds

(a) that the respondent State is to pay the first applicant, within three months, EUR 1,700 (one thousand seven 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

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

[1]. Approximately 2,500 euros at the material time

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