THIRD SECTION
CASE OF KOSTETSKAYA v. RUSSIA
(Application no. 19483/07)
JUDGMENT
STRASBOURG
15 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Kostetskaya v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 19483/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Svetlana Stanislavovna Kostetskaya (“the applicant”), on 20 April 2007;
the decision to give notice to the Russian Government (“the Government”) of the complaints about the alleged lack of public access to the judgments in a civil case and about the alleged breach of the right to freedom of expression and assembly and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 25 May 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged lack of public access to a reasoned judgment in a civil case. It also concerns the applicant’s arrest and administrative offence proceedings for participating in an unlawful public assembly. Lastly, it concerns the applicant’s dismissal from the police for criticising her superiors.
THE FACTS
2. The applicant was born in 1967 and lives in Moscow. The applicant, who had been granted legal aid, was represented by Ms V. Petrova, a lawyer practising in Moscow.
3. The Government were represented 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.
4. The facts of the case, as submitted by the parties, may be summarised as follows.Solo DEMONSTRATION of 25 February 2009 and the applicant’s dismissal from police service
5. The applicant was a police officer in the Administrative Department of the Special Police Force (ОМОН).
6. On 25 February 2009 she held a solo demonstration in front of the Government of Russia building. Her demonstration was covered by the press; in particular the applicant alleged that the in-house police medical practitioner had damaged her daughter’s health on purpose.
7. On 13 March 2009 the applicant was dismissed from the police for a serious breach of disciplinary rules.
8. On 24 March 2009 the applicant challenged her dismissal before the Tverskoy District Court of Moscow.
9. On 10 April 2009 the Tverskoy District Court found it established that by holding the solo demonstration the applicant had committed a serious breach of disciplinary rules and there had been statutory grounds for a dismissal. The dismissal had been therefore lawful.
10. On 30 June 2010 the Moscow City Court upheld the judgment of 10 April 2009 on appeal, finding that it had been lawful, sufficiently reasoned and justified.Public event of 23 September 2010
11. On 20 September 2010 the applicant notified the Prefect of the Central Administrative District of Moscow of her intention to hold a picket (пикетирование) from 10 a.m. to 1 p.m. on 23 September 2010 in front of the Prosecutor General’s office on Bolshaya Dmitrovka Street, which ten people were expected to attend. The aim of the event was to draw the Prosecutor General’s attention to corruption of prosecutors and to the absence of any effective remedy in that respect.
12. On the same day the Prefect of the Central Administrative District of Moscow refused to approve the public event, finding that the notification had been submitted outside the time-limit established by the Public Events Act.
13. At about 10.20 on 23 September 2010 four people started to picket on Bolshaya Dmitrovka Street in front of the Prosecutor General’s office. As it was raining, the participants took shelter in the archway of one of the neighboring buildings. They displayed placards protesting against corruption of prosecutors. At about 11 a.m. the participants to the event were arrested by the police and brought to a police station. The applicant was released at 2 p. m. on the same day.
14. On 11 November 2010 the Justice of the Peace of the 369th Court Circuit of the Tverskoy District of Moscow found the applicant guilty of a breach of the established procedure for the conduct of public events, an offence under Article 20.2 § 1 of the Administrative Offences Code. In particular, the Justice of the Peace found that the applicant had organised a public event which had not received an official approval. The Justice of the Peace sentenced the applicant to a fine in the amount of 1,000 Russian roubles (about 23.5 euros).
15. The applicant appealed. She argued, in particular, that she had submitted a notification on 20 September 2010, that is three days before the intended event of 23 September 2003, as required by the Public Events Act. The refusal to approve the event had been therefore unlawful.
16. On 28 December 2010 the Tverskoy District Court upheld the judgment of 11 November 2010 on appeal. The court found, in particular, that the notification for the event had been submitted at 11.25 a.m. on 20 September 2010, that is less than three days before the intended event which had been scheduled to start at 10 a.m. on 23 September 2010. Given that the applicant had not complied with the time-limit established by the Public Events Act, the Prefect’s refusal to approve the event had been lawful. By holding a public event which had not received an official approval, the applicant had violated the established procedure for the conduct of public events.Pension dispute
17. The applicant sued the Moscow Interior Department for long-service pension payable to police officers after twenty years of service.
18. On 6 August 2009 the Tverskoy District Court held a hearing at the close of which it read out the operative part of the judgment, stating that the applicant’s claims were dismissed in full.
19. A copy of the reasoned judgment was served on the applicant on 31 August 2009.
20. The applicant appealed. She complained, in particular, that the district court had not read out the full text of the judgment at the hearing.
21. On 14 September 2010 the Moscow City Court held an appeal hearing at the close of which it read out the operative part of the judgment, stating that the judgment of 6 August 2009 was upheld.
22. On 26 January 2011 the applicant received a copy of the appeal judgment, which did not address the issue of public pronouncement of the first-instance and appeal judgments.
RELEVANT LEGAL FRAMEWORKnotification of public events
23. The Public Events Act (no. FZ-54 of 19 June 2004) provides that a notification in respect of a picket involving several persons must be submitted no later than three days before the intended picket or, if the end of the time-limit falls on a Sunday or a public holiday, no later than four days before the intended picket. No notification is required for gatherings or pickets involving one person (section 7 paragraphs 1 and 3).
24. Article 191 of the Civil Code provides that a time-limit starts to run on the next day after the date, or the occurrence of the event, which sets off its beginning.
25. Ruling no. 28 by the Plenary Supreme Court of 26 June 2018 provides that the day when the notifications is lodged and the day when the public event is scheduled to take place are not taken into account for the calculation of the notification time-limit (paragraph 6).
26. For a complete summary of the domestic provisions on the procedure for the notification and conduct of public events and liability for breaches committed in the course of public events, see Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 216‑312, 7 February 2017).pronouncement of judgments
27. Article 199 §§ 1 and 2 of the Code of Civil Procedure (as in force at the material time) provided that a judgment was to be delivered immediately after the examination of a case. The operative part of the judgment was to be pronounced at the last hearing. The pronounced operative part of the judgment was to be signed by all judges and included in the case file. The preparation of a reasoned judgment could be postponed for no more than five days.
28. The Courts Administration Office’s Instruction no. 36 of 29 April 2003 (in force at the material time) set out an exhaustive list of persons who were allowed to consult a case file in a court building. The list mentioned the parties to the proceedings, their representatives, other participants to the proceedings, public prosecutors and other officials (paragraph 12.1). The Instruction also set out an exhaustive list of persons who could be given copies of documents from a case file. The list included the parties to the proceedings and their representatives (paragraph 12.6).
29. Federal Law no. 262-FZ of 22 December 2008 on Access to Information on the Functioning of Courts in the Russian Federation, which came into force on 1 July 2010, provided for the publication of domestic courts’ judgments on the internet.
30. For a summary of other provisions concerning the public pronouncement of judgments, see Malmberg and Others v. Russia, nos. 23045/05 and 3 others, §§ 30-41, 15 January 2015.
THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
31. The applicant complained that the judgments in her pension case had not been “pronounced publicly”, as required by Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”Admissibility
32. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits
33. The applicant maintained her complaint. She relied, in particular, on the case of Ryakib Biryukov v. Russia (no. 14810/02, ECHR 2008).
34. The Government submitted that the courts in the applicant’s civil proceedings had acted in accordance with domestic law, which at the material time did not provide for the compulsory publication of judgments or for their being made available to persons other than participants in the proceedings. That problem had been identified in the Court’s judgment in the case of Ryakib Biryukov (cited above). As a result of the enactment of Law no. 262‑FZ of 22 December 2008 (entered into force on 1 July 2010), which provided for access to information about the activities of the courts, including through the compulsory publication of judgments online, the requirement under Article 6 § 1 of the Convention for judgments to be pronounced publicly had been complied with. The authorities had thus taken measures to prevent the same violation as that found in the Ryakib Biryukov case. The Government submitted that, given that the enactment of the new legislation had reasonably required a significant period of time, the State should not be held responsible for failure to comply with the requirement to pronounce judgments publicly in the applicant’s proceedings. They confirmed that the judgments in the applicant’s case had not been published online.
35. The Court has previously found a violation of Article 6 § 1 of the Convention by the respondent State on account of the lack of public access to a reasoned judgment in a civil case in which only the operative part of the judgment was read out in open court and the full text of the judgment was prepared later (see Ryakib Biryukov, cited above, §§ 28-46, and Malmberg and Others, nos. 23045/05 and 3 others, §§ 43-58, 15 January 2015).
36. The Court reiterates that before 1 July 2010 there was no means of ensuring publicity other than by reading out the operative parts of judgments in open court (see Malmberg and Others, cited above, § 55). Federal Law no. 262‑FZ of 22 December 2008, which entered into force on 1 July 2010, provided for the publication of domestic court judgments on the Internet.
37. Turning to the facts of the present application, and taking into account the proceedings as a whole, the Court observes that on 6 August 2009 the Tverskoy District Court read out the operative part of the relevant judgment at a public hearing and sent the full text of its judgment to the parties more than three weeks later. Similarly, only the operative part of the appeal court’s judgment of 14 September 2010 was read out, whereas a copy of the reasons for that decision were served on the applicant more than four months later.
38. The material before the Court shows that the judgments were not publicly pronounced in full by either the first‑instance or the appeal court, and there is no evidence to confirm that the judgments were made accessible to the public at all. In particular, although the appeal judgment was adopted after 1 July 2010, the Government confirmed that it had not been published online. The Court concludes that the judgments of the above-mentioned courts remained inaccessible to the public.
39. It follows that the object pursued by Article 6 § 1 in this context – namely, ensuring public scrutiny of the judiciary with a view to safeguarding the right to a fair trial – was not achieved in the present case. The reasoning of the courts, which would have explained why the applicant’s claims had been rejected, was inaccessible to the public.
40. There has accordingly been a violation of Article 6 § 1 of the Convention.ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
41. The applicant complained of the refusal to approve the public event of 23 September 2010, its termination by the police, her arrest and the administrative offence proceedings against her. She relied on Articles 10 and 11 of the Convention. The Court will examine the complaint under Article 11, interpreted where appropriate in the light of Article 10 (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 363-65, 7 February 2017). Article 11 reads as follows:
“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.”Admissibility
42. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits
43. The applicant insisted that she had complied with the notification time-limit and the refusal to approve her public event had been therefore unlawful. Given that she had not committed any breach of the established procedure for the conduct of public events, her arrest and administrative offence proceedings against her had been also unlawful.
44. The applicant further submitted that only four people had taken part in the public event. They had not committed any breaches of public order and had not presented any danger. They had immediately complied with the order of the police to stop the public event. Her arrest and her conviction for an administrative offence had not therefore been “necessary in a democratic society”.
45. The Government submitted that the applicant had not complied with the statutory time-limit for notifying public events and had not therefore received an official approval for that event. The applicant had however decided to hold the event and had been prosecuted for an administrative offence. Both the refusal to approve the event and the subsequent administrative offence proceedings had been lawful.
46. The Government further submitted that during the public event the applicant had made accusations against the head of the Investigations Committee. The Government argued that he was entitled to protection against offensive and abusive attacks to be able to enjoy public confidence in conditions free of undue perturbations. The applicant was not a journalist and did not therefore perform the role of “public watchdog”. There had been therefore no violation of the applicant’s right to freedom of expression and assembly.
47. The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and proportionality of interference with it (see Oya Ataman v. Turkey, no. 74552/01, ECHR 2006‑XIV, and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009).
48. In so far as the applicant complained that the refusal to approve the public event had been unlawful, the Court observes that the domestic authorities found that she had not respected the notification time-limit and that the applicant disputed that finding. The Court notes in this connection that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. The “law” is therefore the enactment in force as the courts with competence have interpreted it. While the Court should exercise a certain power of review in this matter, since failure to comply with domestic law entails a breach of Article 11, the scope of its task is subject to limits inherent in the subsidiary nature of the Convention, and it cannot question the way in which the domestic courts have interpreted and applied national law, except in cases of flagrant non-observance or arbitrariness (see Zhdanov and Others v. Russia, nos. 12200/08 and 2 others, § 150, 16 July 2019, with further references). The Court cannot discern any such flagrant non-observance of domestic law or arbitrariness in the interpretation or application of the domestic provisions concerning the notification time-limit in the present case. Nor have the applicant questioned the “quality” of those domestic provisions.
49. The Court therefore accepts that the applicant had not respected the notification time-limit and that the refusal to approve the public event had been therefore lawful. It follows that the applicant organised a public event that had not received an official approval.
50. The Court reiterates that the authorities should show a degree of tolerance towards a peaceful, albeit unlawful, assembly which creates only minimal or no disruption of ordinary life (see Lashmankin and Others, cited above, § 461, and the cases cited therein). In the present case the authorities displayed zero tolerance towards the assembly, even though it was peaceful and involved only four participants. There is no evidence that it created any disruption of ordinary life. The domestic authorities made no attempt to verify the extent of the risks posed by the protestors, or to verify whether it had been necessary to terminate the public event. Nor was there any noticeable assessment of whether the applicant’s escort to the police station and administrative arrest had been necessary in the circumstances.
51. It follows that the applicant was arrested, transferred to the police station and charged with an administrative offence for the sole reason that the public event had not been approved.
52. The Court already found a violation in respect of issues similar to those in the present case (see, for example, Frumkin v. Russia, no. 74568/12, 5 January 2016; Navalnyy and Yashin v. Russia, no. 76204/11, 4 December 2014; and Kasparov and Others v. Russia, no. 21613/07, 3 October 2013).
53. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion. Having regard to its case-law on the subject, the Court considers that in the instant case the measures applied to the applicant did not correspond to a pressing social need and were thus not necessary in a democratic society.
54. There has accordingly been a violation of Article 11 of the Convention.ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
55. The applicant complained that her dismissal from the police had violated her right to freedom of expression as provided in Article 10 of the Convention. The Court has found violations of Articles 6 and 11 of the Convention. Having regard to those findings, the Court considers in the circumstances of the case that it is not necessary to examine the applicant’s remaining complaint. APPLICATION OF ARTICLE 41 OF THE CONVENTION
56. 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
57. The applicant claimed 20,000,000 euros (EUR) in respect of non‑pecuniary damage. She also claimed 2,852,893 Russian roubles (RUB) in respect of pecuniary damage, representing loss of salary and related social benefits and allowances following her dismissal from the police.
58. The Government submitted that the claim for non-pecuniary damage was excessive. There was no causal link between the violations alleged and the claim for pecuniary damage.
59. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim.
60. On the other hand, it awards the applicant EUR 6,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses
61. The applicant also claimed EUR 50,000 for the costs and expenses incurred before the domestic courts and the Court, covering her stationery and postal expenses and medical expenses for her daughter. She submitted copies of postal bills and stationery invoices.
62. The Government submitted that the applicant had substantiated postal expenses in the amount of RUB 11,173.84. The remainder of the claims for costs and expenses had not been substantiated.
63. 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 were 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 sum of EUR 233 covering costs under all heads, plus any tax that may be chargeable to the applicant.Default interest
64. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaints under Articles 6 § 1 and 11 of the Convention admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that there has been a violation of Article 11 of the Convention;Holds that there is no need to examine the complaint under Article 10 of the Convention;Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 233 (two hundred and thirty-three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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 applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
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Olga Chernishova Darian Pavli
Deputy RegistrarPresident
Full & Egal Universal Law Academy