CASE OF KRIVOV v. RUSSIA

THIRD SECTION

CASE OF KRIVOV v. RUSSIA

(Application no. 71862/13)

JUDGMENT
 

STRASBOURG

10 March 2020

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

In the case of Krivov v. 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 application against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Vladimirovich Krivov (“the applicant”), on 19 November 2013;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the length of pre-trial detention and the alleged ill-treatment;

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

the parties’ observations;

Having deliberated in private on 11 February 2020,

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

INTRODUCTION

The case concerns allegations of excessive use of force by the police during the dispersal of a public assembly at Bolotnaya Square in Moscow on 6 May 2012, the length of the applicant’s pre-trial detention on charges of mass disorder and violence against the police, and the alleged lack of medical assistance in relation to his hunger strike.

THE FACTS

1.  The applicant was born in 1961 and lives in Moscow. He was represented by Mr V. Makarov, a lawyer practising in Moscow. At a later stage he was also represented by Ms K. Moskalenko, a lawyer practising in Strasbourg.

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.

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).

5.  The applicant is an academic physicist and an active member of the political party RPR-PARNAS. At the time of his arrest he was living at his usual address with his wife and two children. On 6 May 2012 he took part in the demonstration at Bolotnaya Square and, according to him, was assaulted by the police dispersing the protestors. He was arrested at the site of the demonstration and on the same day was convicted of failure to obey a lawful order of the police, an offence under Article 19.3 of the Code of Administrative Offences. He was released the same day. After that day the applicant continued his usual professional and political activities while living with his family at his usual address.

6.  On 18 October 2012 the applicant was detained on suspicion of having participated in mass disorder on 6 May 2012. He was charged under Articles 212 § 2 (participation in mass disorder) and 318 § 1 (violence against a public official) of the Criminal Code. The acts imputed to him included obstructing a police officer while he was arresting the demonstrators by holding his arm and trying to snatch his truncheon, hitting the officer on the hands three times, and grabbing the officer by the uniform and pushing him away.

7.  On 19 October 2012 the Basmannyy District Court ordered the applicant’s pre-trial detention until 18 December 2012, stating as follows:

“The prosecution authorities suspect [the applicant] of having committed criminal offences of medium and high gravity, punishable by imprisonment of over two years ...

In assessing the circumstances under investigation, the nature of the acts imputed [to the applicant] the personality of the accused Krivov, who has previously been charged with administrative offences, the court concludes that there are sufficient grounds to believe that [the applicant], if at liberty, may abscond from the investigation and trial, [or] may act in person or by proxy in order to avoid criminal liability, continue [his] criminal activity, [and] destroy the evidence and otherwise obstruct the investigation, which is at its [initial] phase.

Operational-search activities are now underway, aimed at establishing [the applicant’s] possible connections with others actively participating in the mass disorder which took place at Bolotnaya Square in Moscow and the adjacent area; therefore, if at liberty, [he] may co-ordinate his position with unidentified accomplices.”

8.  On 7 December 2012, following a pre-investigation inquiry, the Investigation Committee decided not to open a criminal investigation into the applicant’s alleged assault during his arrest on 6 May 2012. The decision concerned five complaints by people arrested at Bolotnaya Square, including the applicant. Referring to statements given by the police officers, the Investigation Committee decided that the police had acted lawfully.

9.  On 14 December 2012 the Basmannyy District Court extended the applicant’s detention until 6 March 2013, relying on essentially the same grounds and noting the particular complexity of the investigation. This decision was upheld by the Moscow City Court on 14 January 2013.

10.  On the same date the applicant went on a hunger strike, which lasted for forty-three days. On 15 January 2013 he had a blood test, and from that date onwards he was examined daily by the medical staff of the detention facility. On 25 January 2013 he had a consultation with a psychiatrist. On the same day he ended his hunger strike and accepted medical treatment.

11.  On 28 February 2013 the Basmannyy District Court extended the applicant’s detention until 6 July 2013, essentially on the same grounds as before. This decision was upheld by the Moscow City Court on 3 April 2013.

12.  On 24 May 2013 the applicant’s criminal case file was submitted to the Zamoskvoretskiy District Court of Moscow, which began the trial in a criminal case against the applicants and seven other individuals.

13.  According to the applicant, during his trial he was twice beaten up by the convoy officers at the Zamoskvoretskiy District Court. The judge disregarded his complaints of ill-treatment.

14.  On 6 June 2013 the trial court extended the pre-trial detention of eleven defendants, including the applicant, until 24 November 2013. It dismissed the applicant’s request for an alternative preventive measure, holding that no other measure could secure the course of justice in the case. This decision was upheld by the Moscow City Court on 2 July 2013.

15.  On 19 September 2013 the applicant began another hunger strike to protest against the appalling conditions of his detention (including those in the court holding cells), the extensions of his pre-trial detention, his prosecution for having taken part in an authorised political rally, and the allegedly unfair manner in which the court was conducting the trial. He was on hunger strike for two month and three days. During this period he was examined daily by the medical staff of the detention facility, who recorded his blood pressure and pulse readings, complaints, the medical advice given to him and the treatment he was receiving. Four blood tests and four urine tests were taken during the hunger strike. On eight occasions during this period the applicant refused in writing to be placed in hospital or to receive intravenous glucose, vitamins and proteins. On 22 November 2013 he ended his hunger strike, gave his consent to be placed in a prison hospital and agreed to resume his food intake under medical supervision.

16.  According to the applicant, during the hearing on 18 November 2013 his counsel called an ambulance for him because he felt unwell, but the judge did not allow the ambulance team to enter the courtroom to examine him.

17.  On 19 November 2013 the Zamoskvoretskiy District Court extended the detention of nine defendants, including the applicant, until 24 February 2014. This extension order was upheld by the Moscow City Court on 17 December 2013.

18.  On 21 February 2014 the Zamoskvoretskiy District Court found the applicant guilty as charged. He was sentenced to four years’ imprisonment, calculated on the basis of a sentence of three years under Article 212 § 2 of the Criminal Code, to be served partly concurrent with a sentence of two years under Article 318 § 1. The applicant’s pre-trial detention counted towards the prison sentence.

19.  On 20 June 2014 the Moscow City Court upheld the first-instance judgment. It reduced the applicant’s prison sentence to three years and nine months.

20.  On 15 July 2016 the applicant was released after serving his sentence.

RELEVANT LEGAL FRAMEWORK

21.  For a summary of the relevant domestic law, see Yaroslav Belousov (cited above, §§ 85-87, with further references).

THE LAWPRELIMINARY REMARKS

22.  The Court observes that after notice of the application was given to the respondent Government, and in response to their objections as to its admissibility and merits, the applicant submitted further complaints. Relying on the case of Yaroslav Belousov (cited above, §§ 69-73) he contended that the conditions of his detention during his transfer from the remand prison to court and back, as well as his confinement in a glass cabin in the courtroom, were identical to those of his co-defendants, in respect of whom the Court had found a violation of Article 3 of the Convention.

23.  The Government replied that those allegations had not been part of the applicant’s original application.

24.  In the Court’s view, the new complaints are related in a general sense to the present case, but do not constitute an elaboration of the applicant’s original complaint to the Court. Under Article 3 his grievances were limited to his alleged assault by the police during the dispersal of the assembly at Bolotnaya Square, the two alleged beatings by the convoy officers at the Zamoskvoretskiy District Court and the alleged lack of medical assistance in relation to his hunger strike. The Court considers, therefore, that it is not appropriate now to take the new matters up separately in the context of the present application (see, among many other authorities, Kovach v. Ukraine, no. 39424/02, § 38, ECHR 2008; Saghinadze and Others v. Georgia, no.  8768/05, § 72, 27 May 2010; and Antonyuk v. Russia, no. 47721/10, § 94, 1 August 2013).ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

25.  The applicant complained that on 6 May 2012 he was subjected to ill-treatment during the dispersal of the assembly at Bolotnaya Square and that the authorities had refused to conduct an investigation into his allegations. Furthermore, he complained that during his trial he was beaten up twice by the convoy officers at the Zamoskvoretskiy District Court. Lastly, he complained that he had not been provided with adequate medical assistance in relation to his second hunger strike. 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

26.  The Government submitted that the applicant’s complaint of ill‑treatment at Bolotnaya Square should be declared inadmissible as he had not complied with the rule of exhaustion of domestic remedies or the six‑month time-limit. They pointed out that he had not challenged before a court the decision of 7 December 2012 dispensing with the criminal investigation into his alleged assault by the police.

27.  As regards the alleged beatings by the convoy officers at the Zamoskvoretskiy District Court, they claimed that the applicant’s complaint was not corroborated by any evidence.

28.  As regards the alleged failure to provide the applicant with the medical assistance necessitated by his hunger strike in September to November 2013, the Government submitted the information summarised above (see paragraph 15), supported by a medical file containing the relevant records. They contended that the applicant had been carefully monitored by the medical staff of the detention facility, who had examined him on a daily basis and offered him treatment, intravenous nutrient injections and regularly suggested hospitalisation, all of which he had repeatedly refused. Once he had ended his hunger strike he was, with his consent, placed in a prison hospital, where he underwent a full medical examination and was given prescriptions and support to safely resume his food intake. They pointed out that he had not complained that those medical services had been inadequate.

29.  The applicant submitted that his ill-treatment at the site of the Bolotnaya demonstration was a well-documented fact, which had also featured in the media, and that the events had been considered in the judgment of 21 February 2014 by which the Zamoskvoretskiy District Court had convicted him of participation in mass disorder and violence against a public official. He also maintained his allegations of ill-treatment by the convoy officers at the Zamoskvoretskiy District Court and his complaints of inadequate medical assistance. He referred, in particular, to the occasion on 18 November 2013 when his legal counsel had called an ambulance to the courthouse and the trial judge had not allowed the paramedics to examine him. He suggested that the court transcript (which he did not attach to his application) contained the relevant references to those events.Admissibility

30.  The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint of ill-treatment during the dispersal of the demonstration. In particular, he had not challenged before a court the investigator’s decision of 7 December 2012 refusing to institute criminal proceedings against the police officers.

31.  The Court has previously established that an appeal to a court against an investigating authority’s decision dismissing an applicant’s complaint of ill-treatment would be a normal avenue of exhaustion in respect of an Article 3 complaint (see, for example, Belevitskiy v. Russia, no. 72967/01, § 61, 1 March 2007, and Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003). The applicant, who was represented by a lawyer throughout the criminal proceedings against him, did not furnish any explanation for his lawyer’s failure to lodge, or advise him to lodge, a judicial appeal against the investigator’s decision (see Lutskevich v. Russia, nos. 6312/13 and 60902/14, §§ 51-52, 15 May 2018).

32.  As to the applicant’s submission that he had brought his grievances to the attention of the trial court, the Court reiterates that the purpose of the criminal proceedings against him was to find him innocent or guilty of the criminal charges brought against him, rather than to attribute responsibility for the alleged assault or afford redress for an alleged breach of Article 3 (see Toteva v. Bulgaria (dec.), no. 42027/98, 3 April 2003). Although the facts examined as part of the determination of the criminal charges of mass disorder were closely linked to the conduct of the police officers dispersing protestors at the site of the demonstration, the Court has no reason to find that the courts examined the substance of the relevant allegations against the police officers (see Zakharin and Others v. Russia, no. 22458/04, §§ 53-56, 12 November 2015). There is nothing in the parties’ submissions to justify a finding that in the circumstances of the present case the judicial proceedings against the applicant could have constituted an effective remedy.

33.  The Court therefore finds that the applicant’s complaint of ill‑treatment by the police during the dispersal of the demonstration must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

34.  As regards the alleged beatings by the convoy officers at the Zamoskvoretskiy District Court, the Court notes that the applicant has not provided any evidence to support those allegations. In particular, he has not provided copies of his complaints in this respect, or the relevant extracts of the court transcripts to which he referred. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

35.  Likewise, the applicant has not provided any arguments or material to support his complaint of inadequate medical assistance in detention in relation to his hunger strike. In particular, there is no evidence that when the trial judge refused to allow the ambulance doctor called by counsel to attend to the applicant his condition had indeed necessitated urgent intervention, or that his health needs had been otherwise overlooked. By contrast, the Government’s statement that the medical assistance had been regular, thorough and appropriate is corroborated by detailed medical records, which the applicant has not disputed.

36.  It follows that this part of the application must also be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

37.  The applicant complained that his pre-trial detention had not been based on a “reasonable suspicion” that he had committed a criminal offence. He also complained that his pre-trial detention had not been justified by “relevant and sufficient reasons”. He relied on Article 5 §§ 1, 3 and 4 of the Convention, the relevant parts of which read as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...

...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”Submissions by the parties

38.  The parties made essentially the same submissions under Article 5 of the Convention as in Kovyazin and Others (cited above, §§ 73-74). The relevant general principles applicable in this case were summarised by the Court in that judgment (ibid., §§ 75-78).Admissibility

39.  As regards the alleged unlawfulness of the applicant’s detention, the Court notes that the court which ordered that measure was the Basmannyy District Court of Moscow and that it subsequently extended it on several occasions. After the case had been sent for trial, the detention order was issued by the Zamoskvoretskiy District Court of Moscow. The domestic courts acted within their powers in making those decisions and there is nothing to suggest that they were invalid or unlawful under domestic law. Accordingly, the applicant’s detention was imposed and extended in accordance with a procedure prescribed by law.

40.  As regards the allegation that the applicant’s detention was not based on a reasonable suspicion that he had committed criminal offences, his complaint under Article 5 § 1 of the Convention is linked to his complaint under Article 5 § 3 of a failure by the authorities to adduce relevant and sufficient reasons justifying the extensions of his detention pending the criminal proceedings. The Court reiterates that while Article 5 § 1 (c) of the Convention is mostly concerned with the existence of a lawful basis for detention within criminal proceedings, Article 5 § 3 of the Convention deals with the possible justification for such detention. Moreover, according to the Court’s established case-law under the latter provision, the persistence of a reasonable suspicion is a sine qua non for the validity of continued detention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 87, ECHR 2016 (extracts)). The Court therefore deems it more appropriate to deal with this complaint under Article 5 § 3 of the Convention (see Khodorkovskiy v. Russia, no. 5829/04, § 165, 31 May 2011; Taranenko v. Russia, no. 19554/05, § 46, 15 May 2014; and Kovyazin and Others, cited above, § 71, 17 September 2015). The Court further notes that the complaint under Article 5 § 4 referred to the same allegations as those under Article 5 § 3, and it falls to be examined under the latter provision.

41.  Furthermore, the Court finds that the applicant’s complaint of a violation of Article 5 § 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this part of the application is not inadmissible on any other grounds. It must therefore be declared admissible.Merits

42.  The period of detention to be taken into consideration in this case started on 18 October 2012, the date of the applicant’s arrest, and ended on 21 February 2014, when he was convicted. Accordingly, the period in question is one year, four months and three days. Having regard to the considerable length of detention in the light of the presumption in favour of release, the Court finds that the Russian authorities were required to put forward very weighty reasons for maintaining that measure against the applicant.

43.  The Court reiterates that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. When deciding whether a person should be released or detained, the authorities are obliged to consider alternative means of ensuring his or her appearance at trial. Justifications which have been deemed “relevant” and “sufficient” reasons (in addition to the existence of reasonable suspicion) in the Court’s case-law, have included such grounds as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see Buzadji, cited above, §§ 87-88). It can be seen from the applicant’s detention orders and the Government’s observations that the primary reason for his detention was the gravity of the charges. Firstly, the domestic courts considered that the applicant, faced with the risk of prison, was likely to abscond, influence witnesses, or interfere with the administration of justice. Secondly, they seemed to suggest that the very nature of the offences in question, together with information about the applicant’s character, made it likely that he would reoffend and obstruct the course of the criminal proceedings. In addition, the courts dismissed his requests for an alternative preventive measure on the grounds that no other measure could secure the course of justice in the case.

44.  The Court has previously examined similar complaints lodged by the applicant’s co-defendants and found a violation of their rights set out in Article 5 § 3 of the Convention (see Kovyazin and Others, §§ 82-94, and Yaroslav Belousov, §§ 133-38, both cited above). The Court noted, in particular, that the domestic courts’ use of the gravity of the charges as the main factor for the assessment of the potential to abscond, reoffend or obstruct the course of justice, and their reluctance to pay proper attention to a discussion of each applicant’s personal situation or have proper regard to factors pointing in favour of release. It also noted the use of collective detention orders, without a case-by-case assessment of the grounds for detention, in respect of each co-defendant and a failure to thoroughly examine the possibility of applying a less rigid preventive measure, such as bail.

45.  Having regard to the material in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Indeed, the specific offences imputed to the applicant – obstructing a police officer arresting the demonstrators by holding his arm and trying to snatch his police truncheon, hitting the officer on the hands three times, and grabbing the officer by the uniform and pushing him away – may have initially warranted his pre-trial detention. However, with the passage of time the nature and seriousness of the offence as grounds for the applicant’s continued detention inevitably became less and less relevant (see Kovyazin and Others, cited above, § 85; Lutskevich, cited above, § 80; and Artemov v. Russia, no. 14945/03, § 75, 3 April 2014). Moreover, the applicant’s detention was extended by the same collective orders as those of his co‑defendants, without any individual assessment of his situation (ibid., §§ 92-93).

46.  There has accordingly been a violation of Article 5 § 3 of the Convention.OTHER ALLEGED VIOLATIONS OF THE CONVENTION

47.  Lastly, the applicant complained under Articles 6 and 13 of the Convention about various violations of fair trial guarantees in the criminal proceedings against him. These complaints were originally submitted while the criminal proceedings were pending. The applicant did not update his complaints in the light of subsequent developments and the outcome of those proceedings. The Court has examined the complaints as submitted by the applicant. However, having regard to all the material in its possession, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

48.  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

49.  The applicant claimed 350,000 euros (EUR) in respect of non‑pecuniary damage.

50.  The Government stated that the award in the applicant’s case, if any, should be kept in line with the Court’s awards in similar cases concerning violations of Article 5, that is to say between EUR 1,000 and 3,000.

51.  The Court awards the applicant EUR 2,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable (see Kovyazin and Others, cited above, § 116).Costs and expenses

52.  The applicant also claimed EUR 4,600 for the costs and expenses incurred before the Court.

53.  The Government contested this claim as unsupported by documents and unwarranted in view of the simplicity of the case.

54.  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. Furthermore, costs and expenses are only recoverable to the extent that they relate to the violation found (see Murray v. the Netherlands [GC], no. 10511/10, § 134, ECHR 2016). In this regard the Court notes that the applicant’s complaints were only partially successful and that a substantial portion of his pleadings concerned an inadmissible part of the application. In such circumstances the Court may find it appropriate to reduce the award in respect of costs and expenses (see Denisov v. Ukraine [GC], no. 76639/11, § 146, 25 September 2018). Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant.Default interest

55.  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 complaint concerning the lack of relevant and sufficient reasons justifying the extensions of pre-trial detention admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 5 § 3 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 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)      EUR 1,000 (one thousand 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 10 March 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen Phillips Georgios A. Serghides
RegistrarPresident

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