Communicated on 4 October 2016
THIRD SECTION
Applications nos. 22581/15 and 28251/15
Ilya Vladimirovich GUSHCHIN against Russia
and Aleksey Vladimirovich GASKAROV against Russia
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the Appendix.
A. The circumstances of the cases
The applicants were charged with criminal offences allegedly committed during the mass disorder that took place at a political rally held on 6 May 2012 at Bolotnaya Square in Moscow.
Their submissions on the circumstances in which a demonstration took place and was dispersed by the authorities and their submissions concerning the conditions at the court hearing are essentially the same as in Akimenkov v. Russia (no. 50041/14, and four other applications), which was communicated to the Government on 13 October 2014. The facts relating to the applicants’ criminal proceedings are set out below.
1. Application of Mr Gushchin (no. 22581/15)
At the time of arrest the applicant was a student, working part‑time. On 6 May 2012 he took part in the demonstration at Bolotnaya Square. He was arrested at the site of the demonstration. At the police station a report was drawn up stating that the applicant had breached public order during the demonstration, in particular that he had broken through the police cordon and had thrown stones and glass bottles. On 8 May 2012 the applicant was convicted of non-compliance with a lawful order by a police officer, an offence under Article 19.3 of the Code of Administrative Offences, and was sentenced to fifteen days’ detention. After his release the applicant continued his usual activities while living at his usual address.
On 6 February 2013 the applicant’s flat was searched and his travel passport seized. The applicant was arrested on suspicion of having participated in mass disorder and of having used violence against the police during the demonstration of 6 May 2012. He was charged with offences provided for by Articles 212 § 2 of the Criminal Code (participation in mass disorder) and 318 § 1 (violence against a public official). He was accused, in particular, of having grabbed a police officer’s uniform and of having pulled him away to prevent him from arresting another protestor. On the following day the applicant’s pre-trial detention was ordered. The circumstances of his pre-trial detention are set out in the Court’s judgment Kovyazin and Others v. Russia (nos. 13008/13, 60882/12 and 53390/13, §§ 46 et seq., 17 September 2015).
On 20 November 2013 the applicant was indicted under Articles 212 § 2 and 318 § 1 of the Criminal Code.
On 16 December 2013 the Investigative Committee of the Russian Federation (“the Investigative Committee”) disjoined the case against the applicant and his three co-defendants from the main criminal case file concerning the mass disorder at Bolotnaya Square.
On 25 July 2014, during a court hearing, the applicant requested that the court stay his prosecution on the charges under Article 212 § 2 of the Criminal Code on the grounds that the acts imputable to him were covered by the administrative offence of which he had been convicted on 8 May 2012. The court found no grounds to grant his request.
On 18 August 2014 the Zamoskvoretskiy District Court found the applicant guilty as charged. He was sentenced to two years and six months’ imprisonment. The applicant’s pre-trial detention counted towards the prison sentence.
On 27 November 2014 the Moscow City Court upheld the first-instance judgment. It dismissed, among other arguments, the applicant’s allegation that he had been tried and convicted twice of the same offence.
The applicant was released on 8 August 2015 having served his prison term.
2. Application of Mr Gaskarov (no. 28251/15)
At the time of his arrest the applicant was working as a financial consultant. He was a member of the Opposition Coordination Council, a political movement. On 6 May 2012 he and his spouse took part in the demonstration at Bolotnaya Square. When the police were dispersing the protestors he intervened in what he perceived as an arbitrary arrest of another protestor. The police applied force against him. According to the applicant, he was severely beaten up and received medical assistance in an ambulance present at the venue.
On 2 July 2012 the applicant lodged a complaint with the Investigative Committee, alleging police brutality. He attached a medical certificate confirming the injuries caused to him on 6 May 2012.
On 28 April 2013 the applicant was detained on suspicion of having participated in mass disorder and of having used violence against the police during the demonstration of 6 May 2012. He was charged with the offences provided for by Articles 212 § 2 (participation in mass disorder) and 318 § 1 (violence against a public official) of the Criminal Code. He was accused, in particular, of having pulled one police officer by the arm and of having pulled another one down to the ground; unidentified people had then hit the latter officer on the head. On the same day the applicant’s pre-trial detention was ordered.
On 13 December 2013 an investigator referred the applicant’s complaint of ill-treatment “to a competent authority”. The applicant is not aware of any further steps having been taken as regards that complaint.
On 16 December 2013 the Investigative Committee disjoined the case against the applicant and his three co-defendants from the main criminal case file concerning the mass disorder at Bolotnaya Square.
On 14 April 2014 the Zamoskvoretsky District Court began the hearing of the criminal case against the applicant and his three co-defendants. The hearings took place in hearing rooms nos. 338, 403 and 410 of the courthouse, which were equipped with glass or metal cages in which the defendants were held during the hearings.
On 18 August 2014 the Zamoskvoretskiy District Court found the applicant guilty as charged. He was sentenced to three years and six months’ imprisonment. The applicant’s pre-trial detention counted towards the prison sentence.
On 27 November 2014 the Moscow City Court upheld the first-instance judgment.
The applicant is currently serving the remainder of his prison term.
B. Relevant domestic law
The Criminal Code of the Russian Federation provides as follows:
Article 212. Mass disorders
“1. The organisation of mass disorder accompanied by violence, riots, arson, destruction of property, use of firearms, explosives and explosive devices, as well by armed resistance to a public official shall be punishable by four to ten years’ deprivation of liberty.
2. Participation in the mass disorder provided for by paragraph 1 of this Article shall be punishable by three to eight years’ deprivation of liberty.
3. The instigation of mass disorder provided for by paragraph 1 of this Article, or the instigation of participation in it, or the instigation of violence against citizens shall be punishable by restriction of liberty for up to two years, or community work for up to two years, or deprivation of liberty for the same term.”
Article 318. Use of violence against a public official
“1. The use of violence not endangering life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of up to 200,000 roubles or an equivalent of the convicted person’s wages for 18 months, or community work for up to five years, or up to five years’ deprivation of liberty ...”
COMPLAINTS
Both applicants complain of a violation of their rights to freedom of expression and to peaceful assembly. They allege that the security measures implemented by the authorities in relation to the authorised and peaceful political rally on Bolotnaya Square on 6 May 2012 disrupted the demonstration, and were unlawful, arbitrary and unnecessary in a democratic society. They further complain that the security measures in respect of the demonstration and their ensuing prosecution for criminal offences were a reprisal for expressing views critical of the authorities, and that their aim was to discourage public events led by opposition activists. These complaints fall to be examined under Articles 10, 11 and 18 of the Convention.
In addition, the applicants submit the following individual complaints.
Mr Gushchin complains that he was tried and punished twice, in violation of the non bis in idem principle set out in Article 4 of Protocol No. 7 to the Convention. He alleges, in particular, that the administrative offence under Article 19.3 of the Code of Administrative Offences of which he was convicted on 8 May 2012 was criminal in nature and that it was based on essentially the same facts as the criminal charges against him under Article 212 § 2 of the Criminal Code.
Mr Gaskarov complains that the conditions in the courtrooms during the hearing of the criminal case were inhuman and degrading, in violation of Article 3 of the Convention. He stresses that the placement of the defendants in glass and metal cages separating them from the rest of the hearing room caused particular difficulties.
Mr Gaskarov also alleges a violation of the right to a fair hearing in the criminal proceedings. He claims that the courts disregarded the arguments and the evidence of excessive use of force by the police and convicted him arbitrarily and solely on the grounds of unreliable statements by the police officers. He referred to Article 6 of the Convention.
QUESTIONS TO THE PARTIES
I. AS REGARDS THE DEMONSTRATION OF 6 MAY 2012
The Government are invited to supplement, if they so wish, the submissions they have already made in the cases of Akimenkov v. Russia, no. 50041/14, and four others applications (questions 1-4 of part I) and Barabanov v. Russia, no. 5550/15, and two other applications (question I), which the Court will take into account in the present case.
II. QUESTIONS RELATING TO ALL THE APPLICANTS
As regards each of the applicants the Government are invited to answer the following questions:
1. Having regard to the applicants’ specific allegations in respect of their arrest and the ensuing criminal charges, has there been an interference with the applicants’ freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 11 § 2 of the Convention?
2. Have the same measures constituted an interference with the applicants’ freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 of the Convention?
3. Did the measures taken against the applicants have the purpose of undermining their rights to freedom of assembly and expression, in breach of Article 18 of the Convention (see Gusinskiy v. Russia, no. 70276/01, ECHR 2004‑IV)?
III. QUESTIONS RELATING TO THE INDIVIDUAL APPLICANTS
Mr Gushchin
Has the applicant been tried, convicted and punished twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7 to the Convention?
Mr Gaskarov
1. Were the conditions of the applicant’s detention during the court hearings compatible with Article 3 of the Convention (see, in particular, Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, 17 July 2014)?
2. Having regard to the applicant’s specific allegations in respect of the criminal proceedings, did he receive a fair hearing by an independent and impartial tribunal in accordance with Article 6 of the Convention?
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
22581/15
15/04/2015
Ilya Vladimirovich GUSHCHIN
22/08/1988
Khimki
Russian
Maksim Tadeushevich RACHKOVSKIY
28251/15
27/05/2015
Aleksey Vladimirovich GASKAROV
18/06/1985
Zhukovskiy
Russian
Natasha Ognyanova DOBREVA
Full & Egal Universal Law Academy