CASE OF GUSHCHIN AND GASKAROV v. RUSSIA

THIRD SECTION

CASE OF GUSHCHIN AND GASKAROV v. RUSSIA

(Applications nos. 22581/15 and 28251/15)

JUDGMENT
 

STRASBOURG

25 February 2020

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

In the case of Gushchin and Gaskarov. Russia,

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

Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Stephen Phillips, Section Registrar,

Having regard to:

the applications (nos. 22581/15 and 28251/15) 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 Ilya Vladimirovich Gushchin and Mr Aleksey Vladimirovich Gaskarov (“the applicants”), on 15 April 2015 and 27 May 2015 respectively;

the decision to give notice to the Russian Government (“the Government”) of the applications;

the decision to give priority to the applications (Rule 41 of the Rules of Court);

the parties’ observations;

Having deliberated in private on 29 January 2020,

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

INTRODUCTION

The case concerns the applicants’ criminal conviction for participating in mass disorder and violence against the police during the suppression of a public assembly at Bolotnaya Square in Moscow on 6 May 2012.

THE FACTS

1.  The first applicant (Mr Gushchin) was born in 1988 and lives in Khimki in the Moscow Region. The second applicant (Mr Gaskarov) was born in 1985 and lives in Zhukovskiy, also in the Moscow Region. The applicants were represented by Mr Rachkovskiy, a lawyer practising in Moscow, and Ms N. Dobreva, a lawyer practising in Sofia.

2.  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.  The facts of the case, as submitted by the parties, may be summarised as follows.Demonstration of 6 May 2012

4.  The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below.

5.  On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it transpired that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd, a police cordon forced the protestors to remain within the barriers, and there were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered the organisers to finish the meeting early and began to disperse the participants. It took them about two hours to clear the protestors from the square.

6.  On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened a criminal investigation into suspected acts of mass disorder and violence against the police, offences under Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 another investigation was launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.

7.  On 16 December 2013 the Investigative Committee disjoined the case against the first and second applicants and their two co-defendants from the main criminal case file concerning the mass disorder at Bolotnaya Square.Application of Mr Gushchin (no. 22581/15)The first applicant’s arrest and administrative conviction

8.  At the time of the events the first applicant was a student, working part‑time. On 6 May 2012 he took part in the demonstration at Bolotnaya Square. According to him, he did not take part in any disorder or clashes with the police. He was arrested at the site of the demonstration and taken to the Ivanoskoye District police station in Moscow.

9.  At the police station an on-duty officer drew up an administrative‑offence record stating that the applicant had disobeyed a lawful police order, an offence under Article 19.3 § 1 of the Code of Administrative Offences. In particular, it was stated that the applicant had broken the police cordon and thrown stones and glass bottles. When ordered to cease his actions, he had refused to do so.

10.  On 8 May 2012 the first applicant was brought before the justice of the peace of Court Circuit no. 100 of the Yakimanka District in Moscow. He denied having broken the police cordon or having thrown bottles and stones at police officers. The court, relying on a police officer’s report, found him guilty as charged and sentenced him to fifteen days’ detention.

11.  After his release from administrative detention, the first applicant continued to live at his usual address and pursue his activities.

12.  On 6 February 2013 the applicant’s flat was searched and his travel passport seized, and he was arrested on suspicion of having participated in acts of mass disorder and of having used violence against the police during the demonstration of 6 May 2012. He was charged under Article 212 § 2 (participation in mass disorder) and Article 318 § 1 (violence against a public official) of the Criminal Code. He was accused, in particular, of grabbing a police officer’s uniform and of pushing him to the ground.

13.  On 7 February 2013 the first applicant was placed in pre-trial detention where he remained for one year and six months. His pre-trial detention was examined by the Court in a separate case and was found to be unjustified (see Kovyazin and Others v. Russia, nos. 13008/13 and 2 others, §§ 79-94, 17 September 2015).

14.  On 20 November 2013 final charges were brought against the first applicant under Articles 212 § 2 and 318 § 1 of the Criminal Code.The trial

15.  On 14 April 2014 the Zamoskvoretskiy District Court of Moscow began the trial in a criminal case against four participants in the demonstration at Bolotnaya Square, including both applicants, who were charged with participation in acts of mass disorder and committing acts of violence against police officers.

16.  On 25 July 2014, during a court hearing, the first applicant requested that the court grant a stay of proceedings in respect of the charges under Article 212 § 2 of the Criminal Code on the grounds that the acts with which he was charged were covered by the administrative offence of which he had been convicted on 8 May 2012. The court found no grounds to grant his request.

17.  On an unspecified date police officer A., the alleged victim of the first applicant’s assault, was questioned as a witness. He testified that when he had been arresting one of the active participants, someone had pulled his helmet and bullet-proof vest, blocking his access to air. He had fallen to the ground; when he had tried to get up, someone had pushed him again, causing him to fall. When he had managed to stand up, he had seen a young man whom he had later identified as the applicant. The man had then disappeared in the crowd. According to A., he had felt pain as a result of the first applicant’s actions but had not asked for medical assistance. Another police officer, D., also questioned as a witness, testified that he had seen the applicant holding on to A.’s bullet-proof vest and trying to push him to the ground.

18.  On 18 August 2014 the Zamoskvoretskiy District Court of Moscow found the applicant guilty as charged. It held, in particular, as follows:

“On 6 May 2012, at 5 p.m. at the latest, [the applicant] ... arrived at Bolotnaya Square in Moscow to take part in the demonstration ...

Between 5 p.m. and 10 p.m. [the applicant] took part in the acts of mass disorder ... Acting with intent, ... he used violence against ... police officer [A.], which did not pose a threat to the life or health of that officer.

[The first applicant] ..., acting with intent with the aim of using violence, tried to prevent police officers from arresting aggressive participants ... Standing behind [A.] ... he grabbed the latter’s bullet-proof vest with his right hand and his anti-riot helmet with his left hand and, acting together with an unidentified person, dragged [A.] away and then pushed him ... to the ground.

These actions of [the applicant] caused [A.] pain. ...

[The first applicant] has pleaded not guilty to the crime under Article 212 § 2 of the Criminal Code but has partially confessed to the [use of violence against a public official].

[The first applicant] testified that when police officers had started using force, special means and truncheons against [participants in the demonstration], he had heard a cry for help and had seen a man lying on the ground. A police officer, who had later turned out to be [A.], had been bent over the man, beating him with a truncheon. [The first applicant] had grabbed [A.’s] uniform and pulled it up. He had not hit or pushed anyone. [A.] had not fallen to the ground as a result of [the applicant’s] actions. However, [the first applicant] was aware that by grabbing a police officer’s ([A.’s]) uniform, he had committed a crime under Article 318 § 1 of the Criminal Code. [The first applicant] did not deny that afterwards he had been standing in a line with [others] impeding the police from arresting the demonstrators.

[The first applicant] also stated that on [6 May 2012] he had been arrested, taken to the police station and convicted by a justice of the peace under Article 19.3 § 1 of the Code of Administrative Offences. ...

... the court has not established any facts showing unlawful behaviour on the part of the police, contrary to the allegations of the defendants and their counsel. Moreover, the court finds that the police officers acted lawfully during the demonstration on 6 May 2012 ...

[The first applicant’s] arguments that the criminal proceedings and his prosecution should be terminated on the grounds that he has already been subjected to administrative liability for the same act ... cannot be considered well-founded because on 8 May 2012 [he] was convicted of failure to obey a lawful order of the police ... and his acts fell within the scope of the administrative offence set out in Article 19.3 of the Code of Administrative Offences ... However, [his] participation in mass disorder and his use of violence ... against a public official ... are not covered by the scope of the offence provided for in Article 19.3 of the Code of Administrative Offences, as the administrative offence and the crimes had different objects and were committed at different times, albeit consecutively.”

19.  The District Court relied, inter alia, on a video recording showing how the applicant had grabbed A.’s bullet-proof vest and helmet and had pushed him. It also relied on the records of identification parades, according to which A. and D. had identified the applicant as the man who had used violence against A.

20.  The applicant was sentenced to two years and six months’ imprisonment, calculated on the basis of a two-year prison term under Article 212 § 2 of the Criminal Code, running partly concurrently with a term of one year under Article 318 § 1 of the Convention. The applicant’s pre-trial detention counted towards the prison sentence.

21.  On 27 November 2014 the Moscow City Court upheld the first‑instance judgment. It dismissed, among other arguments, the applicant’s allegation that he had been tried and convicted twice for the same offence.

22.  The applicant was released on 8 August 2015 having served his prison term.Application of Mr Gaskarov (no. 28251/15)The second applicant’s arrest and pre-trial detention

23.  At the time of his arrest the second applicant was working as a financial consultant. He was a member of the Opposition Coordination Council, a political movement. On 6 May 2012 he and his partner took part in the demonstration at Bolotnaya Square. When the police were dispersing the protestors he intervened in what he perceived as an arbitrary arrest of another protestor. The police applied force against him. According to the second applicant, he was severely beaten up and received medical assistance in an ambulance present at the venue.

24.  On 2 July 2012 the second applicant lodged a complaint with the Investigative Committee, alleging police brutality. He attached a medical certificate confirming the injuries caused to him on 6 May 2012.

25.  On 28 April 2013 the second applicant was detained on suspicion of having participated in acts of mass disorder and of having used violence against the police during the demonstration of 6 May 2012, offences under Articles 212 § 2 and 318 § 1 of the Criminal Code respectively. He was accused, in particular, of pulling police officer I. by the leg, dragging him away from another protestor and pulling I. down to the ground. Unidentified protestors had then allegedly hit I. on the head. On the same day the second applicant’s pre-trial detention was ordered.

26.  On 26 August 2013 police officer B. identified the second applicant as the protestor who had pulled him by the left arm out of the chain of police officers during the clashes at Bolotnaya Square.

27.  On 20 November 2013 the second applicant was questioned by the investigators. He confessed to having pulled Officer I. by the leg to prevent him from arresting another protestor.

28.  On 13 December 2013 the investigators referred the second applicant’s complaint of ill-treatment “to a competent authority”. The applicant was not aware of any follow-up to his complaint.

29.  On 6 December 2013 the investigators questioned Ms L.A., who had participated in the demonstration at Bolotnaya Square. She had witnessed a police officer kicking the second applicant in the face; she had then provided the latter with first aid on the spot.Conditions in the courtroom

30.  On 14 April 2014 the Zamoskvoretskiy District Court of Moscow began the hearing of the criminal case against the applicants and two co‑defendants. The hearings took place in hearing rooms nos. 403 and 410 of the courthouse, which were equipped with metal cages in which the defendants were held during the hearings. One hearing during the first‑instance trial took place at the Moscow City Court in hearing room no. 338, which was equipped with a glass cabin (for the description of conditions of detention in that room, see Yaroslav Belousov (cited above, §§ 74-75).The trial

31.  In its judgment of 18 August 2014, the Zamoskvoretskiy District Court of Moscow found the second applicant guilty as charged. It held, in particular:

“On 6 May 2012 at 5 p.m. at the latest [the second applicant] ... arrived at Bolotnaya Square in Moscow to take part in the demonstration ...

Between 5 p.m. and 8 p.m. ... [the second applicant] ... took part in acts of mass disorder ... Acting with intent ... he used violence against ... police officer [I.], which did not pose a threat to the life or health of that officer. In particular, [the applicant] ... tried to prevent police officers, including [I.], from arresting another protestor ... he grabbed [I.] by the leg and ... using violence together with ... unidentified persons, dragged [I.] away from the protestor and pulled him to the ground. Then unidentified persons hit [I.] in the head at least twice.

As a result of [the applicant’s] and other persons’ actions, the protestor was able to escape from the police.

... [The second applicant], acting with intent ... also used violence against police officer [B.] ... In particular ... [the applicant], who was standing behind [B.], pulled the latter by the left arm and ... using violence, abruptly pulled [B.] out of the chain of police officers, thereby breaking the chain and making a passage in it for those participating in the mass disorder.

... [The second applicant’s] actions caused [B.] physical pain. ...

[The second applicant] has pleaded not guilty ... He testified that he had been in front of the cordon when the clashes had begun ... he had pulled one of the police officers, who later turned out to be [B.], by the arm. He had not hit [B.]. ... Later [the applicant] had seen a group of police officers trying to arrest a young man ... [They] had pushed him to the ground, grabbed him by his legs and, as the applicant had thought, had started to beat the man with truncheons. ... [The second applicant] had approached a police officer, who later turned out to be [I.], and dragged him away to a metre’s distance, without using violence. ... The young man had then stood up and had run in the direction of the crowd; [I.] had followed him. [The applicant] had seen that a few protestors had approached [I.] and had hit him ... at least twice.

... [The second applicant] additionally stated that during the demonstration on 6 May 2012 he had been beaten up by the police without any reason ... he had lodged a criminal complaint thereof with the law-enforcement authorities but they had refused to open a criminal investigation [into his allegations of ill-treatment]. ...

... the court has not established any facts showing unlawful behaviour on the part of the police, contrary to the allegations of the defendants and their counsel. Moreover, the court finds that the police officers acted lawfully during the demonstration on 6 May 2012 ...”

32.  The second applicant was sentenced to three years and six months’ imprisonment, calculated on the basis of a three-year prison term under Article 212 § 2 of the Criminal Code, to run partly concurrently with a term of one year and six months under Article 318 § 1 of the Convention. His pre-trial detention counted towards the prison sentence.

33.  On 27 November 2014 the Moscow City Court upheld the first‑instance judgment.

34.  The applicant was released on 27 October 2016, having served his prison term.

RELEVANT LEGAL FRAMEWORK

35.  The Criminal Code of the Russian Federation provides as follows:

Article 212. Mass disorder

“1.  The organisation of mass disorder, accompanied by violence, riots, arson, destruction of property, the use of firearms, explosives and explosive devices, as well by armed resistance to a public official, shall be punishable by four to ten years’ deprivation of liberty.

2.  Participation in the types of mass disorder provided for by paragraph 1 of this Article shall be punishable by three to eight years’ deprivation of liberty.

3.  The instigation of mass disorder provided for by paragraph 1 of this Article, or the instigation of participation in such acts, or the instigation of violence against citizens, shall be punishable by a restriction of liberty for up to two years, or community service for up to two years, or deprivation of liberty for the same term.”

Article 318. Use of violence against a public official

“1.  The use of violence which does not endanger life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of up to 200,000 roubles or an equivalent of the convicted person’s wages for 18 months, or community service for up to five years, or up to five years’ deprivation of liberty ...”

36.  The relevant provisions of the Code of Administrative Offences of 30 December 2001 in force at the material time read as follows:

Article 19.3 Refusal to obey a lawful order of a police officer ...

“Failure to obey a lawful order or demand of a police officer ... in connection with the performance of the officer’s official duties relating to maintaining public order and security, or impeding the officer’s performance of his or her official duties, shall be punishable by a fine of between RUB 500 and RUB 1,000 or by administrative detention for up to fifteen days.”

THE LAWJOINDER OF THE APPLICATIONS

37.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

38.  The second applicant (Mr Gaskarov) complained that his confinement in glass cabins and metal cages during the court hearings at the first-instance and appellate courts had amounted to inhuman and degrading treatment. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Submissions by the parties

39.  The Government submitted that the second applicant’s complaints under Article 3 of the Convention had been lodged out of time. They pointed out, in particular, that the six-month time-limit should be calculated from the date on which the alleged ill-treatment had ceased, and not from the end of criminal proceedings, because the appellate court was not capable of providing a remedy against courtroom arrangements during the first‑instance trial. The Government submitted that the hearings had taken place in rooms nos. 403 and 410 of the Zamoskvoretskiy District Court, and that one hearing had been held in room no. 338 of the Moscow City Court owing to the need to ensure the safety of anonymous witnesses. Relying on the Court’s findings in Yaroslav Belousov (cited above, § 114), they contended that the six-month period had begun to run on 14 April 2014 and had ended on 18 August 2014 when the applicant had been convicted by the first‑instance court.

40.  The second applicant disagreed with the Government’s submissions and pointed out that his complaints also concerned the appeal hearing at the Moscow City Court on 27 November 2014. The hearing had taken place in room no. 334 of the courthouse, where he had been kept in a glass cabin. He argued that the alleged ill-treatment had taken place throughout the entire criminal proceedings against him, including during the appeal hearing. He had therefore complied with the six-month rule by lodging his application on 27 May 2015. He also submitted that the glass cabins had lacked space and ventilation, and that his communication with lawyers had been hampered by those settings.Admissibility

41.  The Court reiterates that the second applicant’s confinement in glass cabins and metal cages occurred in two distinct periods with materially different conditions of detention, which cannot be regarded as a continuous situation for the purposes of calculating the six-month time-limit set forth in Article 35 § 1 of the Convention (ibid.). Furthermore, the Court has previously accepted that no remedy was available to applicants in relation to courtroom arrangements and that the six-month time-limit should be calculated from the date the alleged ill-treatment ceased (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 87, ECHR 2014 (extracts)).

42.  As regards the alleged ill-treatment by placement in metal cages, the Court notes that it took place during the first-instance hearing, which ended on 18 August 2014. The second applicant did not lodge his complaint until 27 May 2015. The Court therefore considers that the applicant has missed the time‑limit for lodging the complaint under Article 3 of the Convention about his placement in metal cages. It must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Lutskevich v. Russia, nos. 6312/13 and 60902/14, §§ 67-68, 15 May 2018).

43.  The Court further observes that the alleged ill-treatment owing to the second applicant’s confinement in glass cabins occurred on two occasions, namely on an unspecified date during the first-instance trial and during the appeal hearing on 27 November 2014. Given that those hearings took place in different courtrooms and thus in different conditions of detention, his confinement in glass cabins cannot be regarded as a continuous situation. As the complaint about his confinement in a glass cabin in room no. 338 of the Moscow City Court was lodged more than six months after the end of the first-instance trial, it must also be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

44.  By contrast, the Court finds that the second applicant has complied with the six-month rule as regards the complaint about being placed in a glass cabin during the appeal hearing in room no. 334 of the Moscow City Court. It 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.Merits

45.  The Court summarised the principles of confinement in glass cabins in Yaroslav Belousov (cited above, §§ 120-22). It observes that the second applicant did not specify the dimensions of the cabin in room no. 334 or the amount of space afforded to each defendant. He merely referred to the description of the conditions of detention in room no. 338 of the courthouse examined by the Court in Yaroslav Belousov (ibid., §§ 74-75 and 126). Even assuming that the conditions in room no. 334 were similar to those in room no. 338 of the courthouse, the Court notes that there were only four defendants held in a glass cabin measuring about 5.4 square metres, a setting which allowed them at least 1.3 square metres of personal space. Furthermore, the applicant was held in those conditions only for several hours on 27 November 2014, unlike Mr Belousov, who had to endure overcrowding for several hours three days a week for a period of about two months, being permanently exposed to the public in that cramped setting.

46.  As regards the alleged hindrance that placement in glass cabins caused to the second applicant’s communication with legal counsel, it may be considered as an element contributing to his anxiety and distress, but taken alone it is not sufficient to pass the threshold of Article 3 of the Convention (ibid., § 127). The Court therefore concludes that the conditions in hearing room no. 334 of the Moscow City Court did not attain the minimum level of severity prohibited by Article 3 of the Convention. There has therefore been no violation of Article 3 on account of the applicant’s confinement in a glass cabin in that hearing room.ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

47.  The applicants alleged that there had been a violation of their rights to freedom of expression and to freedom of peaceful assembly. They complained, in particular, that disruptive security measures had been implemented at the site of the meeting at Bolotnaya Square. They further argued that their ensuing prosecution and criminal conviction for participation in acts of mass disorder had been arbitrary and disproportionate. The applicants 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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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.”

Article 11

“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”Submissions by the parties

48.  The Government alleged that the first applicant had lodged his complaint about the general actions of the police in safeguarding public order during the demonstration at Bolotnaya Square and his administrative conviction with delay. They therefore asked the Court to declare this part of his application inadmissible on the grounds of a failure to comply with the six-month time-limit.

49.  The Government’s submissions on the merits of the case were identical to those in Yaroslav Belousov (cited above, §§ 160-63).

50.  The first applicant did not comment on the question of compliance with the six-month time-limit.

51.  The applicants submitted that they were peaceful, law-abiding individuals who had not planned to take part in acts of mass disorder. They had arrived at Bolotnaya Square on 6 May 2012 to take part in a peaceful meeting, which had been authorised by the Moscow authorities. They pointed out that the unexpected change of the meeting venue layout by the authorities had led to clashes between the protestors and the police. The police had used excessive force to clear the area of demonstrators, a number of whom had been arrested.

52.  The second applicant also submitted that his conviction had been based on the testimony of police officers I. and B., and that his arguments about the use of excessive force against him had been disregarded. Moreover, the national courts had never analysed how the police had acted in intervening in a legitimate rally and dispersing the crowd. The courts had also not assessed to what extent the police had acted culpably in their clashes with the participants at the public event. In the applicant’s opinion, the domestic courts had failed to put forward “relevant and sufficient reasons” for his conviction.Admissibility

53.  The Court observes that the first applicant was convicted of perpetrating acts of mass disorder, which had contributed to disruption of the assembly. The attribution of responsibility for those acts was therefore a central question in the determination of the criminal charges against him. In those circumstances, his complaint about the authorities’ role in the occurrence of the disorder is inseparable from his complaint concerning the lack of justification for his criminal liability. For that reason, the Court is not required to assess, as a separate issue under Article 11 of the Convention, the authorities’ alleged failure to discharge their positive obligation in respect of the conduct of the demonstration at Bolotnaya Square. Moreover, as the first applicant appealed against his criminal conviction, the Court considers that he has exhausted domestic remedies in respect of his complaints under that provision and complied with the six‑month time-limit in that regard.

54.  The Court notes that the complaint about the applicants’ prosecution and criminal conviction, lodged under Articles 10 and 11 of the Convention, 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.MeritsThe scope of the applicants’ complaints

55.  The Court notes that in the circumstances of the case Article 10 of the Convention is to be regarded as a lex generalis in relation to Article 11 of the Convention, a lex specialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202, and Kasparov and Others v. Russia, no. 21613/07, §§ 82‑83, 3 October 2013). Accordingly, the Court will examine this complaint under Article 11 of the Convention.

56.  On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 of the Convention must, in the present case, also be considered in the light of Article 10 of the Convention. The protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (see Ezelin, cited above, § 37).Whether there has been an interference with the exercise of the right to freedom of peaceful assembly

57.  The Court has previously held that the assembly at Bolotnaya Square on 6 May 2012 fell within the scope of Article 11 of the Convention (see Frumkin, §§ 99 and 137, and Yaroslav Belousov, §§ 168-71, both cited above). As regards the applicants personally, it does not transpire from the description of their offences that the applicants were among those responsible for the initial acts of aggression which contributed to the deterioration of the assembly’s initial peaceful character. Accordingly, they enjoyed the protection of Article 11 of the Convention. The Court also finds that the applicants’ prosecution and criminal conviction for acts they had committed in the course of the dispersal of the demonstration constituted an interference with the exercise of their freedom of assembly.Whether the interference was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society”

58.  The applicants did not put forward any arguments relating to the alleged unlawfulness of the interference. The Government made essentially the same submissions in that regard as they had made in Yaroslav Belousov (cited above, § 173). The Court sees no reason to reach a different conclusion in this case (ibid., §§ 174-75). It finds that the applicants’ pre‑trial detention and prosecution were lawful, and pursued the legitimate aims of preventing disorder and crime, and of protecting the rights and freedoms of others.

59.  As to whether the applicants’ criminal conviction was “necessary in a democratic society”, the Court notes that they were found guilty of two criminal offences, namely participation in acts of mass disorder (Article 212 of the Criminal Code) and use of violence against a public official (Article 318 of the Criminal Code). The first applicant was sentenced to two years and six months’ imprisonment under those provisions for grabbing a police officer’s uniform and pushing him to the ground. The second applicant was sentenced to three years and six months’ imprisonment for pulling one police officer by the arm and for grabbing another police officer by the leg and pulling him to the ground. The applicants’ acts did not endanger the life or health of those police officers and were committed during their participation in an authorised public assembly.

60.  The Court reiterates that when individuals are involved in acts of violence, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of assembly, and the imposition of a sanction for such reprehensible acts would be considered to be compatible with the guarantees of Article 11 of the Convention (see Gülcü v. Turkey, no. 17526/10, § 116, 19 January 2016, and the cases cited therein). However, it is noteworthy that the sentence under Article 318 § 1 of the Criminal Code for using violence against a public official, although severe, was more lenient that the partly concurrent prison sentence for participation in acts of mass disorder (see paragraphs 20 and 32 above), which was twice as severe for each applicant.

61.  The main justification advanced by the Government for such a harsh sentence was the serious risk of civil unrest at the time, in particular the threat to political stability and public order. The gravity of the punishment was thus attributable to the general context of the applicants’ assault on the police officers, not to the harm they had inflicted. Regard being had to the other conduct imputed to the applicants, it transpires that their staying at the site of the rally accounted for a year and a half being added to the first applicant’s prison sentence and two years being added to the second applicant’s sentence. The Court notes that the domestic courts did not specify which of the applicants’ acts were attributable to participation in mass disorder under Article 212 of the Criminal Code, as opposed to use of violence against a public official under Article 318 of the Code. In describing the applicants’ participation in the mass disorder, the courts merely referred to their use of violence against police officers, also classified as a separate criminal offence (see, by contrast, Yaroslav Belousov, cited above, § 178, where the chanting of anti-government slogans by the applicant constituted participation in acts of mass disorder).

62.  In assessing the severity of the sanction under Article 212 of the Criminal Code, the Court considers it important that the criminal files did not suggest any pre-existing intentions by the applicants to participate in violent acts or acts of mass disorder. Just as in Yaroslav Belousov (cited above, § 179), there is nothing in the case files to suggest that the applicants were among those responsible for the initial acts of aggression which contributed to the deterioration of the assembly’s initial peaceful character and the onset of clashes between the protesters and the police. As far as can be discerned from the indictments, the applicants used violence against the police officers at the height of the clashes when the police were already arresting protesters, an act which, according to them, was in response to the indiscriminate and unnecessary use of force by the police. The domestic courts did not establish the particular circumstances in which that behaviour had occurred and dismissed the applicants’ allegations about excessive use of force by the police as unfounded, while leaving their allegations unrebutted. The Court concludes that the applicants were not regarded as among those responsible for the disruption of the assembly or prompting the use of force by the police. The applicants’ conduct therefore, although involving violence, was sporadic in nature and appeared to be a spontaneous reaction to the force used by the police against the protestors, the majority of whom were peaceful. It therefore did not attain the degree of aggression which the Court has found in other cases to amount to violence calling for lengthy prison terms (see, by contrast, Primov and Others v. Russia, no. 17391/06, §§ 156‑63, 12 June 2014, and Osmani and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001).

63.  Given the applicants’ minor role in the assembly and the fact that they had an incidental involvement in the clashes, the Court does not consider that the risks referred to by the Government – potential civil unrest, political instability and a threat to public order – related to them personally. While the Court does not endorse the applicants’ violent behaviour and reiterates that the State authorities enjoy a wider margin of appreciation in sanctioning such actions (see Gülcü, cited above, § 116, and Taranenko v. Russia, no. 19554/05, §§ 81-97, 15 May 2014), it considers that the reasons advanced by the Government could not justify two-year and three‑year prison sentences for participation in mass disorder under Article 212 of the Criminal Code. The Court considers that there was no “pressing social need” to give the applicants sentences of that duration in addition to sentencing them for assaulting police officers.

64.  It must be stressed, moreover, that the applicants’ criminal conviction, and especially the severity of their sentences, must have had the effect of discouraging them and other opposition supporters, and the public at large, from attending demonstrations and, more generally, from participating in open political debate. The chilling effect of the sanction imposed on them was further amplified by the large-scale proceedings in the case, which attracted widespread media coverage.

65.  In view of the severity of the sanction imposed on the applicants, the Court concludes that their criminal conviction was a measure that was disproportionate to the legitimate aims of preventing disorder and crime and protecting the rights and freedoms of others, and that it was therefore not necessary in a democratic society.

66.  There has accordingly been a violation of Article 11 of the Convention in respect of each applicant.ALLEGED VIOLATIONS OF ARTICLES 6 AND 18 OF THE CONVENTION

67.  The second applicant alleged that he had not been given a fair hearing in the criminal proceedings, in breach of Article 6 of the Convention. He submitted that the courts had disregarded the arguments and evidence of excessive use of force by the police and had convicted him solely on the basis of the police officers’ statements. Furthermore, the courts had classified the same acts as two separate criminal offences.

68.  Both applicants also complained under Article 18 of the Convention that the security measures at the demonstration and their ensuing prosecution for criminal offences had been acts of reprisal for their having expressed views critical of the authorities. Moreover, it had pursued the aim of discouraging public events led by opposition activists. Articles 6 and 18 of the Convention, in so far as relevant, provide as follows:

Article 6

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

Article 18

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

69.  In their submissions under this head the parties reiterated their arguments as regards the alleged interference with their rights to freedom of expression and freedom of assembly.

70.  The Court notes that these complaints are linked to the complaints examined above under Article 11 of the Convention and must therefore likewise be declared admissible.

71.  The Court has already held that the applicants’ criminal conviction was not necessary in a democratic society. The domestic courts did not establish the particular circumstances leading to the onset of clashes between the protestors and the police, or verify the applicants’ arguments about excessive use of force by the police. Nor did they specify the applicants’ acts in relation to their participation in the mass disorder, other than those relating to the assault on the police officers (see paragraphs 60-62 above). The Court has also held that the above had the effect of preventing or discouraging the applicants and others from participating in protest rallies and actively engaging in opposition politics (see paragraphs 63-64 above). It has already found a violation of Article 11 of the Convention in that regard.

72.  Having regard to those findings, the Court considers that it is not necessary to examine whether there has been a violation of Article 6 of the Convention or of Article 18 in conjunction with Article 11 of the Convention.ALLEGED VIOLATIONS OF ARTICLE 4 OF PROTOCOL NO. 7 TO THE CONVENTION

73.  The first applicant (Mr Gushchin) further complained that he had been tried and punished twice for the same offence: first in the administrative proceedings concerning the failure to obey a lawful police order, and secondly in the criminal proceedings on charges of participation in mass disorder. He alleged a violation of the non bis in idem principle set out in Article 4 of Protocol no. 7 to the Convention, which reads as follows:

“1.  No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2.  The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3.  No derogation from this Article shall be made under Article 15 of the Convention.”Submissions by the parties

74.  The Government contended that the administrative and criminal charges against the first applicant concerned separate offences which related to different actions committed in the course of the same public event. In particular, Article 19 § 3 of the Code of Administrative Offences, concerning the failure to obey a lawful police order, did not cover the use of violence against a public official or participation in mass disorder. They reiterated the domestic court’s reasons for dismissing the first applicant’s argument that he could not be charged under Article 212 § 2 of the Criminal Code because he had already been convicted under Article 19.3 § 1 of the Code of Administrative Offences, stating that the administrative offence and the crimes in question had different objects and had been committed at different times, albeit consecutively.

75.  The first applicant maintained that his administrative conviction had been based on his attempt to break through the police cordon, his disregard for the repeated lawful orders of the police and his active resistance to the police. He alleged that the same facts underlay the criminal charge of participation in mass disorder, under Article 212 of the Criminal Code. Thus, he contended that the two sets of charges concerned substantially the same facts.Admissibility

76.  The Court notes that the application 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.Merits

77.  The applicable principles are set out in Sergey Zolotukhin v. Russia [GC], no. 14939/03, §§ 78-84, ECHR 2009 and A and B v. Norway [GC] (nos. 24130/11 and 29758/11, §§ 117-34, 15 November 2016).

78.  Under Article 4 of Protocol No. 7 to the Convention, the Court has to determine whether the offence of failure to obey a lawful police order was criminal in nature, whether the criminal offence of participation in mass disorder for which the first applicant was prosecuted and convicted was the same as failure to obey a lawful order of the police (idem), whether there was a final decision and whether there was duplication of the proceedings (bis).Whether the offence of failure to obey a lawful police order was criminal in nature

79.  In similar cases involving the offence under Article 19 § 3 of the Code of Administrative Offences, the Court has held, on the basis of the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22), that the proceedings in question were “criminal” in nature, not only for the purpose of Article 6 of the Convention (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 79, 15 November 2018), but also for the purpose of Article 4 of Protocol No. 7 to the Convention (see Khmel v. Russia, no. 20383/04, § 58-63, 12 December 2013).

80.  Noting that the parties did not dispute this, the Court concludes that both sets of proceedings in the present case concerned a “criminal” offence within the autonomous meaning of Article 4 of Protocol No. 7.Whether the criminal offence of participation in mass disorder for which the first applicant was prosecuted and convicted was the same as the failure to obey a lawful police order

81.  The notion of the “same offence” – the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 – is to be understood as prohibiting the prosecution or conviction of a second “offence” in so far as it arises from identical facts or facts which are substantially the same (see Sergey Zolotukhin v. Russia, cited above, § 78-84).

82.  In the criminal proceedings in the present case, the first applicant was indicted and convicted of participation in mass disorder (Article 212 § 2 of the Criminal Code) and of use of violence against a public official (Article 318 § 1of the Criminal Code). The Government submitted that the facts underlying the indictment and conviction were not the same as those examined in the administrative proceedings.

83.  The Court observes that the judgment of 18 August 2014 referred to the mass disorder at Bolotnaya Square, which involved clashes between the protestors and the police, the participants ignoring police orders to stop their disorderly conduct, and persons throwing objects in the direction of the police. The first-instance court concluded in that judgment, without specifying the acts attributed to the applicant personally, that he had participated in the mass disorder. By contrast, the acts imputed to him in relation to the assault on the police officer were set out in detail in respect of a separate offence examined under Article 318 § 1 of the Criminal Code.

84.  At his criminal trial the applicant stated that he had already been convicted under Article 19.3 § 1 of the Code of Administrative Offences for breaking the police cordon and throwing stones and glass bottles, and for refusing to cease his actions. Nevertheless, the trial court ruled that the administrative conviction had a different object and scope, but it did not indicate the elements and the factual basis that distinguished the conviction under Article 212 § 2 of the Criminal Code from the previous administrative conviction. The Government have not advanced any arguments that would enable the Court to identify the distinction. Moreover, the description of the mass disorder at Bolotnaya Square given in the judgment in the criminal case matched the conduct for which the applicant had been convicted in the administrative proceedings.

85.  The Court concludes that the applicant’s conviction for failure to obey lawful police orders and his conviction for participation in mass disorder were based on the same factual circumstances. Consequently, the idem part of the ne bis in idem principle is present.Whether there was a final decision

86.  It is uncontested that the administrative conviction had become “final” before the criminal proceedings began in respect of the first applicant. That fact was acknowledged by the courts acting in the criminal case and reflected in the judgment of 18 August 2014.Whether there was a duplication of the proceedings (bis)

87.  In the Grand Chamber judgment in the case of A and B v. Norway (cited above), the Court stated (§ 130):

“On the basis of the foregoing review of the Court’s case-law, it is evident that, in relation to matters subject to repression under both criminal and administrative law, the surest manner of ensuring compliance with Article 4 of Protocol No. 7 is the provision, at some appropriate stage, of a single-track procedure enabling the parallel strands of legal regulation of the activity concerned to be brought together, so that the different needs of society in responding to the offence can be addressed within the framework of a single process. Nonetheless, as explained above (see notably paragraphs 111 and 117-120), Article 4 of Protocol No. 7 does not exclude the conduct of dual proceedings, even to their term, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment (bis) as proscribed by Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question have been ‘sufficiently closely connected in substance and in time’. In other words, it must be shown that they have been combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected.”

88.  In the above-mentioned case, the Court set out the factors that should be taken into account when evaluating the connection in substance and in time between dual criminal and administrative proceedings (paragraphs 132 to 134 of the judgment).

89.  In the present case, it has not been argued that the two sets of proceedings were meant to provide an integrated legal response to the applicant’s conduct, even though the judgment of 18 August 2014 referred to “different objects” of the administrative offence and the crime at issue. Given that neither the domestic courts nor the Government elaborated on the distinction, this reference alone is insufficient to demonstrate that the different proceedings pursued complementary purposes and thus addressed, not only in abstracto but also in concreto, different aspects of the social misconduct involved (ibid., § 132). The two sets of proceedings, including the collection and assessment of evidence, were independent of each other. Overall, the conditions for dual criminal and administrative proceedings to be regarded as sufficiently connected in substance and in time were not met in the present case.Conclusion

90.  Having regard to the above circumstances, the Court finds that the first applicant was tried and punished for the same, or substantially the same, conduct by different authorities in two different sets of proceedings which lacked the required connection. For these reasons, there has been a violation of Article 4 of Protocol No. 7 to the Convention in respect of the first applicant.APPLICATION OF ARTICLE 41 OF THE CONVENTION

91.  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

92.  Each applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.

93.  The Government left the matter to the Court’s discretion.

94.  Taking into account the nature and scope of the violations in respect of the applicants, the Court awards each applicant EUR 10,000 in respect of non‑pecuniary damage. It also reiterates that in addition to the payment of just satisfaction awarded by the Court, the obligation to comply with the present judgment would require the respondent State to take measures to redress negative consequences resulting from the applicants’ disproportionately severe criminal convictions, noting that they have already been released after serving their sentences (see Barabanov v. Russia, nos. 4966/13 and 5550/15, §§ 87-88, 30 January 2018, and Stepan Zimin v. Russia, nos. 63686/13 and 60894/14, §§ 90-91, 30 January 2018).Costs and expenses

95.  The second applicant claimed EUR 20,000 for the costs and expenses incurred before the domestic courts and EUR 7,920 for those incurred before the Court.

96.  The Government left the matter to the Court’s discretion.

97.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the second applicant EUR 5,000 for costs and expenses in the domestic proceedings and EUR 3,000 for his legal representation in the proceedings before the Court, plus any tax that maybe chargeable to him. The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts, as indicated by the second applicant.Default interest

98.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Decides to join the applications;Declares the complaints raised under Article 3 of the Convention concerning placement in a glass cabin in courtroom no. 334 at the Moscow City Court, and under Articles 6, 10, 11, 18 of the Convention and Article 4 of Protocol No. 7 to the Convention admissible and the remainder of the application no. 28251/15 inadmissible;Holds that there has been no violation of Article 3 of the Convention on account of the second applicant’s confinement in a glass cabin in hearing room no. 334 at the Moscow City Court;Holds that there has been a violation of Article 11 of the Convention in respect of each applicant;Holds that there is no need to examine the complaints under Articles 6 and 18 of the Convention lodged by the second applicant;Holds that there has been a violation of Article 4 of Protocol no. 7 to the Convention;Holds

(a)  that the respondent State is to pay the applicants, 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 10,000 (ten thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)      EUR 5,000 (five thousand euros) to the second applicant, plus any tax that may be chargeable to the second applicant, in respect of costs and expenses in the domestic proceedings and EUR 3,000 (three thousand euros) to the second applicant, plus any tax that may be chargeable to the second applicant, in respect of costs and expenses in the proceedings before the Court. The awards in respect of costs and expenses are to be paid directly into the representatives’ bank accounts as indicated by the applicant;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicants claim for just satisfaction.

Done in English, and notified in writing on 25 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Stephen PhillipsGeorgios A. Serghides
RegistrarPresident

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