Communicated on 15 October 2018
THIRD SECTION
Applications nos. 72058/17 and 77503/17
Andrey Aleksandrovich KALIKH against Russia
and Roman Sergeyevich DEMYANENKO against Russia
lodged on 21 September 2017 and 23 October 2017 respectively
SUBJECT MATTER OF THE CASES
A. Application no. 72058/17:
The applicant submits that he is a journalist with Index on Censorship, a non-governmental organisation campaigning for freedom of expression; that he attended a public rally on 12 June 2017 at Marsovo Pole in St Petersburg as an observer rather than as a demonstrator, his aim being to make record of and, subsequently, a publication relating to any abuses on the part of the police toward the representatives of the mass media. The applicant was arrested, kept in detention until 13 June 2017 and was sentenced to fines for the offences under Articles 19.3 § 1 and 20.2 § 5 of the Code of Administrative Offences (CAO).
B. Application no. 77503/17:
The applicant, a photojournalist, received a telephone call from the editor-in-chief of his newspaper with an urgent assignment to take photographs of an on-going opposition rally on 26 March 2017. After the applicant had remained at the rally for three hours, he was arrested and kept in the police station for some time. He was then sentenced to a small fine under Article 19.3 § 1 of the CAO for non-compliance with or resistance to a lawful order by a public official. The court considered that the applicant had tried to force the “police kettling”.
COMMON QUESTIONS TO THE PARTIES
1.1. Having regard to sections 2 and 47 of the Mass Media Act of 1991, was the applicant a “journalist” thus having a statutory right to be present at public events, including venues of mass protests or riots, and to take photographs? If yes, was the order, which he had allegedly disobeyed, lawful under Russian law? Did he thereby fail to comply with the obligation to respect public order and the rules for running the event (section 6 of the Public Events Act of 2004)? While at the protest venue, did the applicant present to the police any document relating to his professional activity such as his journalist card or a journalistic assignment (section 49 of the Mass Media Act)?
1.2. In view of the applicant’s escorting, arrest and sentences, has there been an “interference” violation of Article 10 of the Convention?
1.3. Was there a violation of Article 10 of the Convention? In particular, was the “interference” “prescribed by law” and “necessary in a democratic society” in pursuance of a legitimate aim (compare with Butkevich v. Russia, no. 5865/07, 13 February 2018, and Pentikäinen v. Finland [GC], no. 11882/10, ECHR 2015)?
ADDITIONAL CASE-SPECIFIC QUESTIONS TO THE PARTIES
Application no. 72058/17:
1.1. Has there been an “interference” and a violation of Article 10 of the Convention, should it be accepted that (i) the applicant acted as an “observer”[1] during a protest rally and thereby exercised his freedom to impart and receive information; or (ii) he was a demonstrator, as considered by the courts despite his arguments to the contrary or as conceded before the Court by way of an alternative argument? In any event:
1.2. Noting section 33 of Ruling no. 28 of 26 June 2018 by the Plenary Supreme Court of Russia, was this “interference” “prescribed by law” as regards Article 19.3 of the CAO?
1.3. Was the “interference” “necessary in a democratic society” in the pursuance of any legitimate aim?
2.1. Has the applicant exhausted domestic remedies as to Article 5 § 1 of the Convention and his administrative escorting and arrest on 12 and 13 June 2017? In particular, was the trial or appeal court competent to deal with the substance of the issue relating, at least in substance, to Article 5 § 1 of the Convention and to afford adequate redress? Was the applicant required to bring a separate case under Chapter 22 of the Code of Administrative Procedure (section 40 in fine of Ruling no. 28)? Was this course of action available in 2017 after his final conviction of the offence that was not punishable by administrative detention?
2.2. Was there a violation of Article 5 § 1 of the Convention on account of the applicant’s escorting to the police station and his administrative arrest on 12-13 June 2017? In particular:
- Was it ascertained (in the arrest record or another document) that the compiling of the offence and other record was “impossible on the spot”, that there were “exceptional circumstances” justifying the arrest or that without escorting the applicant to the police station or without arresting him it was “impossible” “to detect the offence, to establish [his] identity, to ensure proper and timely examination of the case and execution of a resulting court decision” (see section 40 of Ruling no. 28)?
- Having regard to section 22 of Ruling no. 28, was it lawful to detain the applicant beyond three hours and with reference to an offence under Article 19.3 of the CAO?
3.1. Was the offence record (протоколы правонарушений) used against the applicant adverse evidence (доказательства) or, instead, as bills of indictment (compare with Karelin v. Russia, no. 926/08, §§ 66 and 68, 20 September 2016, and Mikhaylova v. Ukraine, no. 10644/08, § 66, 6 March 2018)? Were there violations of the objective impartiality requirement under Article 6 § 1 of the Convention because of the lack of a prosecuting party, noting, in particular, that the applicant chose not to attend the appeal hearings and no such (oral) hearings were actually held (compare with Karelin, §§ 67-68 and 77-83)?
3.2. Were there violations of Article 6 §§ 1 and 3 of the Convention on account of the restriction to contest the adverse written evidence, for instance by way of examining the police officers?
4. Was there a violation of Article 4 § 1 of Protocol No. 7 to the Convention? Did/does Russian law make provision for the application of the ne bis in idem principle to bar CAO prosecution on account of a final judgment in another CAO case? If not, did it dispense/prevent the courts from applying the ne bis in idem principle (see also section 33 of Ruling no. 28 of 26 June 2018)?
APPENDIX
Application no. 72058/17
Andrey Aleksandrovich KALIKH is a Russian national who was born in 1972, lives in Nizovskaya and is represented by A. Peredruk.
Application no. 77503/17
Roman Sergeyevich DEMYANENKO is a Russian national who was born in 1984, lives in Semiluki and is represented by I. Sharapov.
[1] Also called “legal observers”, for instance representatives of human-rights organisations, who attend public demonstrations, protest rallies and other similar activities where there is a potential for conflict between the participants or activists and the police or other law enforcement personnel. The aim of legal observers is to monitor, record, and report on any unlawful or improper behaviour.
Full & Egal Universal Law Academy