CASE OF MUCHNIK AND MORDOVIN v. RUSSIA

THIRD SECTION

CASE OF MUCHNIK AND MORDOVIN v. RUSSIA

(Applications nos. 23814/15 and 2707/16)

JUDGMENT

STRASBOURG

12 February 2019

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

In the case of Muchnik and Mordovin v. Russia,

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

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

Having deliberated in private on 22 January 2019,

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

PROCEDURE

1. The case originated in two applications (nos. 23814/15 and 2707/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Ms Viktoriya Sergeyevna Muchnik and Mr Mikhail Viktorovich Mordovin (“the applicants”), on 7 May 2015 and 18 December 2015 respectively.

2. The applicants were represented by Mr K. Terekhov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by their Agent, Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation at the European Court of Human Rights.

3. On 30 June 2017 notice of the applications was given to the Government.

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

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The first applicant (Ms Muchnik) was born in 1968 and lives in Tomsk. The second applicant (Mr Mordovin) was born in 1956 and lives in Seversk, in the Tomsk Region.

A. Administrative proceedings against the first applicant

6. At the end of 2014 the Russian Television and Radio Network informed the private regional television company TV-2 that its contract for broadcast services would be cancelled as of 1 January 2015. At the same time, the Federal Service for the Supervision of Communications, Information Technology and Mass Media (Роскомнадзор) did not renew the company’s broadcast licence, which was due to expire on 8 February 2015. As a result, TV-2, one of the leading channels in the Tomsk Region which had been reporting on everyday life in the region since 1990, stopped broadcasting at the beginning of 2015.

7. According to the first applicant, between 4 and 14 January 2015 she staged nine solo demonstrations to protest against the authorities’ decision to deprive TV-2 of its ability to broadcast. Some other people also staged solo demonstrations on the same dates and at the same time, keeping a 30‑metre distance from each other.

8. According to the Government, the first applicant, acting together with other persons, held nine “pickets” (пикеты) near two shopping centres in Tomsk between 4 and 14 January 2015, expressing support for TV-2. These “pickets” were held without prior notification being given to local authorities.

9. On 27 February 2015 an administrative-offence record was compiled in respect of the first applicant. She was accused of organising and participating in group public events held without prior notification being given to the local authority, an offence punishable under Article 20.2 § 2 of the Code of Administrative Offences (hereinafter, “the CAO”). It was considered that, while the applicant and other solo demonstrators had complied with the local requirement to keep a 30-metre distance from each other, there had still been a single event amounting to an “assembly” of several people.

10. The administrative case file contained a report and an explanatory note from a high-ranking police officer from Tomsk police department. It was stated, in particular, that F. had initiated a number of public assemblies in support of TV-2 from 4 January 2015 onwards, by posting calls for support via social networks. The first applicant had picked up those involved in the solo demonstrations and transported them to the event venues; she had also handed out leaflets to them for distribution. It was stated that she had organised “picketing” over the course of ten days and had enlisted the help of around eighty people. The report comprised several screenshots of Facebook pages showing calls for people to support TV-2 through protests, including a personal page of the applicant. The administrative case file also contained several reports by police officers who had been present on 4, 5, 6, 7, 9, 10, 11 and 13 January 2015 at the location where the solo demonstrations had taken place. The police officers pointed out that no breaches of the Public Events Act (hereinafter, “the PEA”) had been detected; the demonstrators had kept the minimum 30-metre distance from each other and had not breached public order.

11. On 3 March 2015 the case against the first applicant was submitted to the Sovetskiy District Court of Tomsk. On the same day, it was assigned to a judge, who set up a hearing for 4.30 p.m. At 1.45 p.m. the judge’s assistant informed the applicant of this by telephone. The judge dismissed an application for the hearing to be adjourned for two days, because such a case had to be examined on the same day it was received by a court. However, the judge gave the applicant an hour to study the file, and when her lawyer appeared some time later he requested only fifteen minutes to study the file. The judge’s assistant later reported that the applicant had not studied the file for the hour which she had been given; instead, she had talked on the phone and chatted with the other people present in the courtroom. The hearing went from 6.09 p.m. to 11.28 p.m., including breaks.

12. By a judgment of 3 March 2015 the first applicant was convicted under Article 20.2 § 2 of the CAO and sentenced to a fine of 20,000 Russian roubles (RUB – about 287 euros (EUR) at the time). The court relied on the administrative-offence record, reports and an explanatory note by police officers, screenshots of Facebook pages, and written statements by different people outlining the applicant’s role in organising the public events. The court dismissed as unreliable the testimony of F. and the applicant’s husband, who had been questioned at her request.

13. The first applicant appealed against the judgment to the Tomsk Regional Court. By a decision of 13 April 2015 the appellate court excluded the reference to the applicant being the organiser of the events, but upheld the remainder of the trial judgment.

14. On 7 September 2015 and 10 February 2016 the Tomsk Regional Court and the Supreme Court of Russia respectively dismissed applications for review lodged by the first applicant.

B. Administrative proceedings against the second applicant

15. According to the second applicant, on 6 August 2014 from 6 p.m. to 7 p.m. he staged a solo demonstration protesting against the persecution of political activists. The officials present at the venue in question did not make any claims during his solo demonstration or after it (see, however, paragraph 17 below). The applicant was not hindered in any way and completed his demonstration.

16. According to the national authorities and according to the Government’s submissions before the Court, on 6 August 2014 from 6 p.m. to 7 p.m. the second applicant, acting together with (seven) other persons, organised and held a public event in the form of “picket” near Big City, a shopping centre in Tomsk. Using visual aids, the applicant and other protestors expressed their opinion about the participants in the events of 6 May 2012 in Bolotnaya Square in Moscow, without giving prior notification to the authorities.

17. On 15 May 2015 the head of the division for the execution of administrative legislation of the Tomsk police department (ОИАЗ УМВД России по городу Томску) compiled an administrative-offence record in respect of the second applicant and notified him of that record. The latter was accused of an offence under Article 20.2 § 2 of the CAO for organising and holding a public event without giving prior notification to the competent authority. It was stated that the participants had had posters and T-shirts with slogans expressing their demand that the political activists be released.

18. The administrative case file contained notes written by the police which described a video-recording of the “picket” and comprised screenshots of several social media webpages calling for people to participate in the event of 6 August 2014. It also contained two explanatory notes by police officers from the Tomsk police department’s Centre for Combatting Extremism. The notes described monitoring activities carried out in respect of the applicant and other activists, and three public assemblies held by them on 6 June, 6 July and 6 August 2014.

19. On 15 May 2015 the case file against the applicant was submitted to the Sovetskiy District Court of Tomsk. The applicant, who had not been deprived of his liberty, attended the trial and pleaded not guilty. The trial court heard several witnesses on behalf of the defence. On the same day the district court convicted the second applicant under Article 20.2 § 2 of the CAO and sentenced him to a fine of RUB 20,000 (about EUR 306 at the time). The applicant was not represented by a lawyer at the trial. The court considered that the applicant had conspired with others to hold a static demonstration on 6 August 2014; the applicant had been the event organiser, and he had failed to give the authorities prior notification of the event. The court relied on the administrative-offence record drawn up by the police and on various notes and video-recordings produced by the police. In particular, the court noted that the videos showed the applicant and other participants in the event gathering at the venue; it also showed that during the event they had been standing less than 30 metres from each other and talking. The court dismissed the applicant’s argument that he had staged a solo demonstration, an argument which was supported by the testimony of defence witnesses who had also been participants in the event.

20. The second applicant lodged an appeal against the above judgment. On 19 June 2015 the Tomsk Regional Court held an appeal hearing and heard the applicant and his lawyer. The appellate court noted that the available evidence did not confirm that the applicant had been the event organiser; however, he had still been a participant in the public assembly, an assembly of which the authorities had not been given notice. The court therefore reclassified his actions, found him guilty under Article 20.2 § 5 of the CAO and reduced the fine to RUB 10,000 (about EUR 165 at the time).

21. On 30 November 2015 the acting President of the Tomsk Regional Court rejected a further appeal on points of law by the second applicant.

II. RELEVANT DOMESTIC LAW AND PRACTICE

22. For a summary of the domestic law and practice concerning regulations relating to the conduct of public events, liability for breaches committed in the course of such events and administrative escorting and arrest, see Lashmankin and Others, cited above, §§ 216-312, 7 February 2017, and Novikova and Others v. Russia, nos. 25501/07 and 4 others, §§ 47-84, 26 April 2016.

23. Article 29.6 § 4 of the CAO provides that cases concerning administrative offences punishable by, inter alia, administrative detention should be examined on the day a competent authority receives the administrative-offence record and other case file material.

24. In the Tomsk Region, Law no. 195-OZ of 8 November 2012 provides that the distance between solo demonstrations should be no less than 30 metres (section 2).

25. In Ruling no. 28 of 26 June 2018 the Plenary Supreme Court of Russia stated that the prosecution of participants for being present during a public event held without prior notification being given to the authorities was admissible only where the participants had not complied with specific obligations listed in section 6(3) and (4) of the Public Events Act. In particular, those obligations included the obligation on participants to comply with lawful orders given by the police.

THE LAW

I. JOINDER OF THE APPLICATIONS

26. Given their common factual and legal background, the Court decides that the two applications should be joined under Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

27. The applicants complained that no prosecuting party had been present at the court hearings in the administrative proceedings against them, and that the trial judges had acted in breach of the impartiality requirement. The applicants also alleged that they had not been afforded adequate time and facilities to prepare their defence. They relied on Article 6 of the Convention, which, in so far as relevant, provides as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...

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

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

A. Admissibility

28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

29. The Government submitted that the CAO did not provide for the mandatory participation of a public prosecutor in each case concerning an administrative offence. Their submissions in that respect were similar to those made in Karelin v. Russia (no. 926/08, §§ 46-48, 20 September 2016). The Government insisted that the domestic courts had not taken on the role of the prosecution when examining the applicants’ cases, and that their decisions were well reasoned. They further contended that as administrative offences under Article 20.2 § 2 of the CAO were punishable by administrative detention, the related cases were to be examined on the day the court received the case file. The Government considered that, in view of those legislative requirements, the swift examination of the first applicant’s case had complied with the CAO and had not violated Article 6 § 1 of the Convention.

30. The applicants argued that in the absence of a prosecuting party, the trial judges had taken on the role of the prosecution. The domestic courts had therefore not been “impartial” within the meaning of Article 6 § 1 of the Convention. The first applicant also submitted that, in her case, the judge’s impartiality had been undermined by the fact that she (the judge) had made the charge more serious by deciding that the applicant had organised an unauthorised assembly in addition to participating in it. The first applicant further argued that there had been no reason to expedite the first-instance proceedings in her case and dismiss her application for the hearing to be adjourned. In her view, affording her one hour to study the case file and prepare her defence had not been sufficient. The second applicant also claimed that he had not been afforded adequate time to prepare his defence in the first-instance trial.

2. The Court’s assessment

31. The Court reiterates at the outset that the criminal limb of Article 6 of the Convention was applicable to the proceedings against the applicants under the Russian CAO (see Mikhaylova v. Russia, no. 46998/08, § 69, 19 November 2015).

(a) Impartiality requirement in administrative proceedings

32. As regards the first complaint, the Court has previously found that the lack of a prosecuting party in the context of oral hearings resulting in the determination of administrative charges constitutes a serious shortcoming in breach of the objective impartiality requirement of Article 6 § 1 of the Convention (see Karelin, cited above, §§ 69-84). It notes that the essential factual and legal elements of the present case and the case of Karelin (ibid., §§ 59-68) are similar. The parties’ submissions in the present case disclose no reason for the Court to depart from its earlier judgment.

33. There has therefore been a violation of Article 6 § 1 of the Convention in relation to each applicant in respect of the objective impartiality requirement.

(b) The right to adequate time and facilities to prepare one’s defence

34. As regards the applicants’ complaint that they were not afforded adequate time and facilities for the preparation of their defence, the requirements of Article 6 § 3 of the Convention being particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaint under both provisions taken together.

35. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the opportunity to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Can v. Austria, 30 September 1985, § 53, Series A no. 96; Connolly v. the United Kingdom (dec.), no. 27245/95, 26 June 1996; and Mayzit v. Russia, no. 63378/00, § 78, 20 January 2005). Furthermore, the facilities available to everyone charged with a criminal offence should include the opportunity to acquaint oneself with the results of investigations carried out throughout the proceedings for the purposes of preparing one’s defence (see C.G.P. v. the Netherlands (dec.), no. 29835/96, 15 January 1997, and Foucher v. France, 18 March 1997, §§ 26-38, Reports 1997‑II). The adequacy of time and facilities afforded to an accused must be assessed in the light of the circumstances of each particular case.

36. The Court notes that both applicants’ cases were examined in an expedited procedure under Article 29.6 of the CAO, which provides that cases concerning administrative offences punishable by administrative detention are to be examined within one day. However, the Court reiterates that the existence and use of expeditious proceedings in criminal matters is not in itself contrary to Article 6 of the Convention, as long as the proceedings provide the necessary safeguards and guarantees contained in that Article (see Butkevich v. Russia, no. 5865/07, §§ 91-92, 13 February 2018).

37. In the first applicant’s case, the Court observes that the police compiled an administrative-offence record, that is the document serving as a basis for the accusation against her, on 27 February 2015. The applicant, who was not detained at the time, has not claimed that she was not afforded an opportunity to have access to this record or other documents in the administrative case file on that date or over the course of the following days. Nor has she argued, for instance, that it was impossible to make copies of the case file before the case was sent to the trial court or that she did not receive a copy of the administrative-offence record. It is further noted that the applicant was notified of the details of the scheduled hearing on 3 March 2015, about three hours before it began. However, while her application to adjourn the hearing was dismissed, she was afforded an hour to study the case file. It is uncontested that her lawyer, who attended later, requested only fifteen minutes to study the case file. The Court further observes that the applicant, who was assisted by the lawyer at the hearing, availed herself of her right to lodge applications, particularly applications to examine defence witnesses, which were granted by the court. In such circumstances and in view of the scope of the applicant’s grievance, the Court is not convinced that the first applicant was unduly restricted in her opportunities to familiarise herself properly with and adequately assess the charge and evidence against her, and to develop a viable legal strategy for her defence (contrast with Galstyan v. Armenia, no. 26986/03, §§ 86-87, 15 November 2007, and Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 76-82, 15 October 2015).

38. As regards the second applicant, the Court notes that the period between the drawing up of the administrative-offence record and the judicial examination of his administrative case, the period during which he could have been punished with detention, was no longer than a few hours. It is unclear how much time the applicant, who was not deprived of his liberty at the time, was given to review the administrative-offence record or other administrative case material, including the written statements by police officers. Even if it is accepted that his case was not a complex one, the Court is not satisfied that the second applicant was afforded adequate time and facilities for the preparation of his defence, especially in view of the fact that he had no legal assistance during the first-instance trial (see, mutatis mutandis, Vyerentsov v. Ukraine, no. 20372/11, § 76, 11 April 2013). Before the Court, the Government have not put forward any argument to the contrary. In particular, it has not been argued that the appeal proceedings were conducted in such a manner as to remedy any alleged shortcomings in the previous stage of the proceedings.

39. The Court concludes that there has been no violation of Article 6 § 3 taken together with Article 6 § 1 of the Convention in respect of the first applicant, but that there has been a violation of that provision in respect of the second applicant.

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

40. The applicants complained that their administrative conviction had constituted unlawful and disproportionate interference with their right to freedom of expression and right to freedom of peaceful assembly. They relied on Articles 10 and 11 of the Convention, which read as follows:

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime ...”

Article 11

“1. Everyone has the right to freedom of peaceful assembly ...

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ...”

A. Admissibility

41. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

42. The applicants pointed out that they had respected the requirement as to the minimum statutory distance between solo demonstrators, and that the court’s reliance on the reclassification rule had not been a foreseeable application of the law. In their view, their conviction had been based on legislation which did not meet the “quality of law” requirement and was therefore unlawful. Moreover, their demonstrations had been peaceful, so that there had been no legitimate aim in prosecuting and convicting them for holding such demonstrations. The domestic courts had failed to examine the applicants’ arguments that they had exercised their right to freedom of expression, and had applied a “formalistic” approach by holding the applicants accountable for merely breaching the notification requirement.

43. The Government reiterated the submissions made in Novikova and Others (cited above, §§ 95-96) concerning the statutory regulation of public events. In their view, in both cases, all the solo demonstrations had been united by one purpose – support of the television company TV-2 in the first applicant’s case, and the expression of opinions about the events of 6 May 2012 in Bolotnaya Square in the second applicant’s case. The domestic courts had properly qualified these demonstrations as public assemblies which had been held without prior notification being given to the authorities. The Government also pointed out that the “pickets” in both applicants’ cases had been terminated by the participants themselves rather than by the authorities’ intervention. The fines imposed on the applicants had been within the statutory limits and proportionate to the offences committed.

2. The Court’s assessment

44.  The parties agreed that the applicants’ administrative conviction had constituted an interference with their right to freedom of peaceful assembly and right to freedom of expression. Such interference constitutes a breach of Articles 10 and 11 of the Convention unless it is prescribed by law, pursues one or more legitimate aims under paragraph 2 of each Article, and is “necessary in a democratic society”.

45. First of all, the Court has taken note of the first applicant’s submission that she staged solo demonstrations while respecting the statutory distance requirement. In this connection, the Court refers to its findings made in Novikova and Others (cited above, §§ 193 and 197-99) in relation to the PEA, an Act which, irrespective of a statutory distance requirement and compliance with that requirement by simultaneous solo demonstrators, empowered courts to classify a situation as a group event post factum (the “reclassification rule” under section 7(1.1) of the PEA), and, by implication, to punish people for non-compliance with the applicable prior notification procedure for such an event. In the Court’s view, the intended statutory purposes of such a notification procedure (such as affording the authorities an opportunity to take timely and adequate measures to ensure the requisite order for running a particular civic initiative and to secure public safety and the protection of the rights of event participants and others) would normally be fully attainable through the reasonable application of a distance requirement, without there being any “pressing social need” – relating to the pursuance of any particular legitimate aim – to apply the “reclassification rule” and enforce the relevant prior notification procedure.

46. It is noted that there was a specific statutory distance requirement of 30 metres in Tomsk in 2014-2015 (see paragraph 24 above). It is uncontested that the first applicant was standing at least 30 metres away from other protestors so as to ensure that she respected this requirement. The Court also does not doubt that the applicant’s expressive conduct was peaceful and non-disruptive. The domestic courts considered the situations as a series of group events held in the form of static demonstrations. However, no compelling considerations relating to public safety, the prevention of disorder or the protection of the rights of others were at stake or were relied upon when using this factual assertion to convict the first applicant specifically for not observing the notification procedure and attribute an active role to her (see paragraphs 9, 12 and 13 above). The only relevant consideration was the need to punish the unlawful conduct arising solely from the non-compliance with the notification procedure. In the absence of any aggravating element, this was not sufficient to justify the interference with the first applicant’s right to freedom of expression in the circumstances of the case.

47. Secondly, as regards the second applicant, the Court has taken note of the domestic courts’ findings that he participated in a group public event in the form of a “picket” for which no prior notice had been given. There is little to confirm that the second applicant kept 30 metres away from other solo demonstrators. Thus, accepting that the applicant did indeed take part in an “assembly” with (seven) others, and that his conviction interfered with his right of peaceful assembly, the Court considers that this case discloses a violation of Article 11 of the Convention interpreted in the light of Article 10, for the reasons set out below.

48. The Court notes that in contrast with many previous cases (see, for instance, Novikova and Others, cited above, § 107), the second applicant was afforded an opportunity to finish participating in a small, peaceful and essentially non-disruptive demonstration. It is also notable that no element of interference arises in relation to any further coercive action such as pre‑trial arrest or detention, as no such measures were applied to the second applicant in the present case. Thus, the sole element of interference concerns his conviction for an administrative offence which resulted in his being sentenced to a fine. In this respect, the present case is different from many other cases normally involving a combination of at least two elements of “interference”.

49. Even in the context of “interference” consisting of a sole element, the Court previously did not rule out that “where appropriate” a measure such as a reasonable fine might be imposed on the spot or later (see Novikova and Others, § 107, and Lashmankin and Others, § 462, both cited above).

50. The Court reiterates at this juncture that there is a pertinent distinction to be drawn between public event organisers and participants. It is important for associations and others organising demonstrations, as actors in the democratic process, to abide by the rules governing that process by complying with the regulations in force, in particular those relating to the prior notification procedure (see Oya Ataman v. Turkey, no. 74552/01, § 38, ECHR 2006‑XIII, and Barraco v. France, no. 31684/05, § 44, 5 March 2009). States may impose sanctions on those who do not comply with this procedure. At the same time, as regards the participants in rallies in particular, the freedom to take part in a peaceful assembly is of such importance that a person cannot be subject to a sanction – even one at the lower end of the scale of, for instance, disciplinary penalties – for participation in a demonstration which has not been prohibited, so long as that person does not himself commit any reprehensible act on such an occasion (see Ezelin v. France, 26 April 1991, § 53, Series A no. 202, and, as a recent authority, Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 149, ECHR 2015, with the cases cited therein). More generally, it is normally not sufficient that the “interference” was imposed because its subject matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms; instead, what is required is that the “interference” was “necessary in a democratic society” in the specific circumstances of a given case (see Perinçek v. Switzerland [GC], no. 27510/08, § 275, ECHR 2015 (extracts), and The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65 in fine, Series A no. 30; see also Novikova and Others, cited above, § 199). In other words, an unlawful situation, such as the staging of (or participation in) a demonstration without prior authorisation, does not by itself justify an interference with a person’s right to freedom of assembly; the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities, who remain restricted by the proportionality requirement of Article 11 (see Kudrevičius and Others, cited above, §§ 150‑51).

51. The second applicant was found guilty on account of merely participating in a peaceful and non-disruptive manner in a small group event of which the competent authority had not been notified in advance. The disputed offence included no further incriminating element concerning any “reprehensible act”, such as the obstruction of traffic or damage to property or acts of violence (compare and contrast with Kudrevičius and Others, cited above, §§ 178-82; Barraco, cited above, §§ 46-47; and Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004). For instance, nothing indicates that the applicant refused to comply with any lawful orders by the police. In fact, there is nothing to suggest that any such orders (for instance, an order to disperse) were given during the disputed demonstration. It is noted in this connection that the Plenary Supreme Court of Russia has indicated that the prosecution of participants for being present during a group event of which no notice has been given is admissible where they do not comply with the specific obligations listed in section 6(3) and 4 of the PEA, namely the obligation to comply with orders given by the police (see paragraph 25 above).

52. While the Court does not overlook the degree of tolerance displayed by the police, the Court is not satisfied that it was appropriate to impose the fine of EUR 165 on the second applicant in the specific circumstances of the present case. The applicant consistently argued that he had held a solo demonstration at a distance from other people. Thus, with due regard to the presumption of innocence, in this context it was incumbent on the prosecuting party (who was not present in this case) to substantiate that the applicant had knowingly taken part in an assembly of which no notice had been given and had refused to cease participating in it, despite clear and reiterated orders from the police or another public official. The Court is not satisfied that the domestic decisions contain sufficient reasoning on those elements. Thus, while the amount of the fine does not appear to be particularly striking, the Court cannot conclude that the interference in the present case was “necessary in a democratic society”.

53. As regards both applicants, the domestic decisions do not contain an adequate assessment of the fact that even if the applicants participated in public group events of which no notice had been given, they did so in connection with the exercise of their freedom of expression pertaining to matters of public interest, such as the closure of the regional television company TV-2 or the alleged persecution of political activists.

54. There has therefore been a violation of Article 10 of the Convention in respect of the first applicant, and a violation of Article 11 of the Convention in respect of the second applicant.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

55. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

56. Each applicant claimed 20,000 Russian roubles (RUB) in respect of pecuniary damage, an amount representing the fines they had paid, and 9,500 euros (EUR) in respect of non-pecuniary damage.

57. The Government contested the claims in respect of non-pecuniary damage as excessive and unreasonable. As regards the claims in respect of pecuniary damage, they submitted that the fines had been lawfully imposed on the applicants for administrative offences.

58. The Court considers that there is a direct causal link between the finding of violations under Articles 10 and 11 of the Convention and the fine each applicant paid (for similar reasoning, see Lashmankin and Others, § 515, and Novikova and Others, § 232, both cited above). The Court therefore awards the first applicant EUR 286, and the second applicant EUR 143 (as the amount of his administrative fine was reduced by the appellate court to RUB 10,000) in respect of pecuniary damage, plus any tax that may be chargeable.

59. Taking into account the nature and the scope of the violations of Articles 6, 10 and 11 of the Convention in respect of the applicants, and making its assessment on an equitable basis, the Court awards each applicant EUR 5,200 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

60. The applicants also claimed EUR 6,600 jointly for their legal representation in the proceedings before the Court.

61. The Government contested the claim on the grounds that there was no proof that the legal fees had actually been incurred.

62. 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. The Court notes that the applicants submitted no documentary proof such as legal-services contracts with their representative or payment receipts or invoices confirming that they had a legally enforceable obligation to pay for their lawyer’s services or that they had in fact paid for such services. Regard being had to these considerations, its case-law and the repetitive nature of the complaints, the Court rejects the applicants’ claim for costs and expenses (see Novikova and Others, cited above, § 235).

C. Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints under Articles 6, 10 and 11 of the Convention admissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of each applicant as regards the requirement of objective impartiality;

4. Holds that there has been no violation of Article 6 §§ 1 and 3 (b) of the Convention in respect of the first applicant;

5. Holds that there has been a violation of Article 6 §§ 1 and 3 (b) of the Convention in respect of the second applicant;

6. Holds that there has been a violation of Article 10 of the Convention in respect of the first applicant;

7. Holds that there has been a violation of Article 11 of the Convention in respect of the second applicant;

8. Holds

(a) that the respondent State is to pay, 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 286 (two hundred and eighty-six euros) to the first applicant, and EUR 143 (one hundred and forty-three euros) to the second applicant, plus any tax that may be chargeable on these amounts, in respect of pecuniary damage;

(ii) EUR 5,200 (five thousand two hundred euros), plus any tax that may be chargeable on this amount, to each applicant in respect of non‑pecuniary damage;

(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;

9. Dismisses the remainder of the applicants’ claim for just satisfaction.

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

Fatoş AracıHelen Keller
Deputy RegistrarPresident

 

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