CASE OF POLISHCHUK AND OTHERS v. RUSSIA

 

 

THIRD SECTION

CASE OF POLISHCHUK AND OTHERS v. RUSSIA

(Applications nos. 29308/18 and 6 others –
see appended list)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

10 November 2022

 

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

In the case of Polishchuk and Others v. Russia,

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

Darian Pavli, President,

Andreas Zünd,

Frédéric Krenc, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 20 October 2022,

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

PROCEDURE

1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table

2.  The Russian Government (“the Government”) were given notice of the applications.

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings. They also raised other complaints under the provisions of the Convention.

THE LAW

JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

ALLEGED VIOLATION OF ARTICLE 6 § 1 of the Convention

6.  The applicants complained of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings. They relied, expressly or in substance, on Article 6 § 1 of the Convention, which reads as follows:

Article 6 § 1

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

7.  The relevant principles of the Court’s case-law concerning the requirement of impartiality under Article 6 § 1 of the Convention can be found in the leading case of Karelin v. Russia (no. 926/08, §§ 51-57, 20 September 2016, with further references). In that case the Court assessed the national rules of administrative procedure and concluded that the statutory requirements allowing for the national judicial authorities to consider an administrative offence case which falls within the ambit of Article 6 of the Convention under its criminal limb, in the absence of a prosecuting authority, was incompatible with the principle of objective impartiality set out in Article 6 of the Convention.

8.  Having examined all the material submitted to it, having dismissed the Government’s objection of non-exhaustion of domestic remedies (see Smadikov v. Russia (dec.), no. 10810/15, 31 January 2017), and having regard to the issue of the compliance with the six-month period under Article 35 § 1 of the Convention (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022, in which the Court addressed the COVID-related extension of the period in question and concluded that it should be exceptionally considered to have been suspended for three calendar months in total whenever it either started to run or was due to expire at any time between 16 March and 15 June 2020), the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.

9.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.

OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

10.  The applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Frumkin v. Russia, no. 74568/12, §§ 81-142, 5 January 2016, as regards disproportionate measures taken by the authorities against organisers and participants of public assemblies, and Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 84-138, 10 April 2018, as regards unlawful administrative arrest.

REMAINING COMPLAINTS

11.  As regards other complaints under Article 6 of the Convention about unfairness of the proceedings, submitted by the applicants in applications nos. 9016/19, 21014/19, 27100/20 and 42213/20, the Court, having reached the conclusion about the lack of impartiality of the tribunal under Article 6 of the Convention (see paragraph 9 above), does not consider it necessary to examine them separately.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  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.”

13.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Kuratov and Others v. Russia [Committee], nos. 24377/15 and 2 others, 22 October 2019), the Court considers it reasonable to award the sums indicated in the appended table.

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to join the applications;Declares the complaints concerning the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and decides that it is not necessary to examine separately further complaints under Article 6 of the Convention raised in applications nos.  9016/19, 21014/19, 27100/20 and 42213/20 about unfair administrative-offence proceedings;Holds that the applications disclose a breach of Article 6 § 1 of the Convention concerning the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings;Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

Done in English, and notified in writing on 10 November 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Darian Pavli
 Acting Deputy Registrar President

 

 

 

APPENDIX

List of applications raising complaints under Article 6 § 1 of the Convention

(lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings)

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

 

Representative’s name and location

Penalty

Date of final domestic decision

Name of court

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant

(in euros)[1]

   

29308/18

11/06/2018

Yuriy Borisovich POLISHCHUK

1986

Terekhov Konstantin Ilyich

Moscow

fine of

RUB 10,000

14/12/2017,

St Petersburg City Court

 

Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - Anti-corruption meeting on Vosstaniya Square,

St Petersburg, on 26/03/2017. Article 20.2 § 5 of CAO

fine of RUB 10,000.

St Petersburg City Court, 14/12/2017

3,900

   

9016/19

23/01/2019

Tatyana Pavlovna ARSHINOVA

1984

Zinovyev Konstantin Mikhaylovich

Nizhniy Novgorod

fine of

RUB 10,000

26/07/2018,

Nizhniy Novgorod Regional Court

Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - Manifestation in the memory of B. Nemtsov 25/02/2018

3,900

   

21014/19

31/03/2019

Gleb Vladimirovich KALINYCHEV

1983

Zinovyev Konstantin Mikhaylovich

Nizhniy Novgorod

community service,

20 hours

 

 

community service,

20 hours

03/10/2018,

Nizhniy Novgorod Regional Court

 

 

03/10/2018,

Nizhniy Novgorod Regional Court

Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies –

1) Manifestation in the memory of B. Nemtsov, in

Nizhniy Novgorod on 25/02/2018;

 

2) Elections’ Funeral

Nizhniy Novgorod 11/03/2018, Article 20.2 § 5 of CAO

20 hours of community service;

Nizhniy Novgorod Regional Court, 03/10/2018

3,900

   

32723/19

02/06/2019

Dmitriy Vladimirovich STUKALOV

1999

Zinovyev Konstantin Mikhaylovich

Nizhniy Novgorod

community service

10 hours

05/12/2018,

Nizhniy Novgorod Regional Court

 

Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - Manifestation to commemorate B. Nemtsov 25/02/2018, Article 20.2 § 5 of CAO

Nizhniy Novgorod Regional Court, 05/12/2018

3,900

   

14270/20

03/03/2020

Pavel Anatolyevich YARILIN

1974

Vasilyev Nikolay Vladimirovich

Moscow

fine of

RUB 10,000

04/09/2019

Moscow City Court

Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - Manifestation in support of Ivan Golunov Petrovka str.,

Moscow 12/06/2019

Article 20.2 § 6.1 of CAO fine of RUB 10,000

Moscow City Court 04/09/2019

3,900

   

27100/20

05/06/2020

Aleksandr Olegovich ARCHAGOV

1987

Zakhvatov Dmitriy Igorevich

Moscow

fine of

RUB 20,000

16/10/2019

Moscow City Court

Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - Manifestation in support of I. Golunov Moscow 12/06/2019, Article 20.2 § 6.1 of CAO fine of RUB 20,000; Moscow City Court, 16/10/2019

3,900

   

42213/20

06/09/2020

Andrey Valentinovich STROGANOV

1984

Yatsenko Irina Aleksandrovna

Moscow

fine of

RUB 10,000

06/12/2019,

Moscow City Court

Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - arrest and detention on 12/06/2019 in excess of 3 hours for the sole purpose of drawing a record of administrative offence (raised in the administrative proceedings);

 

Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - Manifestation in support of I. Golunov Moscow 12/06/2019, Article 20.2 § 6.1 of CAO, fine of RUB 10,000, Moscow City Court, 06/12/2019

3,900

 

[1] Plus any tax that may be chargeable to the applicants.

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