Communicated on 13 June 2016
THIRD SECTION
Applications nos. 66856/14 and 33606/15
Aleksey Albertovich KARELSKIY and Others against Russia
and Maksim Vladimirovich ZAMARAYEV against Russia
lodged on 2 October 2014 and 19 June 2015 respectively
STATEMENT OF FACTS
The applicants are ten Russian nationals listed in the Appendix. They are represented before the Court by the lawyers of the Memorial Human Rights Centre and the Public Verdict Foundation (see the Appendix).
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On the morning of 21 February 2014 the applicants together with hundreds people came to the Zamoskvoretskiy District Court of Moscow. They wanted to attend the hearing of the criminal case concerning the mass protests at Bolotnaya Square in Moscow on 6 May 2012. The judgment was to be delivered at a public hearing that day. However, the court-house was cordoned off by the police and the applicants could not get in. The police officers did not explain the reasons for not allowing the public to enter.
The applicants remained outside among other members of the public aspiring to attend the hearing. A short while later the crowd started chanting slogans such as “Freedom for the 6 May prisoners”, “Freedom for political prisoners” and “Russia without Putin”. At different times the applicants were arrested and escorted to police stations.
Details as regards the administrative proceedings against each applicant are outlined in the Appendix.
B. Relevant domestic law and practice
1. The Public Events Act (Федеральный закон «О собраниях, митингах, демонстрациях, шествиях и пикетированиях») prohibits holding a public event in the vicinity of a court-house (section 8(2)).
2. The relevant provisions of the Code of Administrative Offences of 30 December 2001, as in force at the material time, read as follows:
Article 19.3 Refusal to obey a lawful order of a police officer
“1. Refusal to obey a lawful order or demand of a police officer ... in connection with the performance of his or her official duties related to maintaining public order and security, or impeding the performance by them of their official duties, shall be punishable by a fine of between 500 Russian roubles (RUB) and RUB 1,000, or administrative detention of up to fifteen days ...”
Article 20.2 Breaches of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets
“5. Breaches by participants in a public event of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets ... shall be punishable by an administrative fine of between RUB 10,000 and RUB 20,000 or compulsory community service of up to forty hours ...”
Article 25.1 Person against whom administrative proceedings have been instituted
“1. A person against whom administrative proceedings have been instituted is entitled to study the case-file material, to make submissions, to adduce evidence, to lodge applications and challenges and to have legal assistance ...”
Article 27.2 Escorting of individuals
“1. The escorting or the transfer by force of an individual ... for the purpose of drawing up an administrative offence report, if this cannot be done at the place where the offence was detected and if the drawing-up of a report is mandatory, shall be carried out:
(1) by the police ...
2. The escort operation shall be carried out as quickly as possible.
3. The escort operation shall be recorded in an escort operation report, an administrative offence report or an administrative detention report. The escorted person shall be given a copy of the escort operation report if he or she so requests.”
Article 27.3 Administrative detention
“1. Administrative detention or short-term restriction of an individual’s liberty may be applied in exceptional cases if this is necessary for the prompt and proper examination of the alleged administrative offence or to secure the enforcement of any penalty imposed by a judgment concerning an administrative offence ...
...
5. The detained person shall have his or her rights and obligations under this Code explained to him or her, and a corresponding entry shall be made in the administrative arrest report.”
Article 27.4 Administrative detention report
“1. Administrative detention shall be recorded in a report ...
2. ... If he or she so requests, the arrested person shall be given a copy of the administrative detention report.”
Article 27.5 Duration of administrative detention
“1. The duration of the administrative detention shall not exceed three hours, except in the cases set out in paragraphs 2 and 3 of this Article.
2. Persons subject to administrative proceedings concerning offences involving unlawful crossing of the Russian border ... may be subject to administrative detention for up to forty-eight hours.
3. Persons subject to administrative proceedings concerning offences punishable by, among other administrative sanctions, ‘administrative arrest’ [административное задержание] may be subject to administrative detention for up to forty-eight hours.
4. The term of the administrative detention is calculated from the time when [a person] escorted in accordance with Article 27.2 is taken [to a police station] ...”
3. The Constitutional Court’s case-law on equality of arms and adversarial procedure in administrative proceedings reads as follows:
Decision No. 630-O of 23 April 2013 of the Russian Constitutional Court
“... Articles 118 § 2 and 123 § 3 of the Russian Constitution provide that the principles of equality of arms and adversarial procedure should apply in court proceedings, including those under the Code of Administrative Offences of Russia [“the CAO”]. These constitutional provisions should be interpreted as guaranteeing the application of the principles of equality of arms and adversarial procedure only to cases that are within the courts’ jurisdiction. Meanwhile, administrative offences cases can be examined not only by the courts, but also by the authorities and officials (Articles 22.1 and 22.2 of the CAO).
Those charged with an administrative offence by an official or an authority may challenge those decisions in the courts (Article 30.1 § 1 of the CAO). Such review proceedings should provide for equality of arms and adversarial proceedings ...”
COMPLAINTS
The complaints of each of the applicants are set out in the Appendix.
All the applicants complain under Articles 10 and 11 of the Convention of the allegedly unlawful and disproportionate measures taken against them as peaceful protesters. They further claim that their apprehension by the police officers during the gathering was arbitrary. Five applicants also complain, under Article 5 § 1 of the Convention, that their detention at police stations after their arrest was unlawful.
All the applicants complain, under Article 6 § 1 of the Convention, that the proceedings in which they were convicted of administrative offences fell short of the guarantees of a fair hearing. They point out, in particular, that there was no prosecuting authority; that role was allegedly performed by the judge. Six applicants also indicate that the courts based their findings exclusively on the evidence submitted by the police officers and dismissed their evidence.
Nine applicants complain, under Article 6 § 3 (d) of the Convention, that the courts refused to call prosecution witnesses, specifically the police officers who had arrested them at the gathering.
COMMON QUESTIONS
1. Was the gathering in front of the Zamoskvoretskiy District Court of Moscow a “public event” in terms of the Public Events Act (Федеральный закон «О собраниях, митингах, демонстрациях, шествиях и пикетированиях»)? Given the nature of the gathering and the impossibility of giving notice within the time-limit prescribed by law, was it a spontaneous assembly (see Bukta and Others v. Hungary, no. 25691/04, §36, ECHR 2007-III, and Eva Molnar v. Hungary, no. 10346/05, § 36, 7 January 2009)?
2. Was the gathering in question dispersed because of its proximity to a court-house? If so, how is proximity defined under domestic law?
3. As regards each applicant, has there been an interference with his 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, in respect of each applicant?
4. Was each applicant’s arrest on 21 February 2014 compatible with the requirements of Article 5 § 1 of the Convention? In particular:
(a) What were the legal grounds for the applicant’s arrest during the public gathering on 21 February 2014?
(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?
5. As regards each applicant’s trial, did he have a fair hearing by an independent and impartial tribunal in the administrative proceedings against him, in accordance with Article 6 § 1 of the Convention, given the absence of any prosecuting authority, whose role was allegedly performed by the judge?
CASE SPECIFIC QUESTIONS
Mr D. Karelskiy, Mr Mikaelyan, Mr Zharkoy, Mr Bardin (no. 66856/14); Mr Zamarayev (no. 33606/15)
1. As regards each applicant, was his deprivation of liberty lasting three and a half to five hours, as listed in the Appendix, compatible with the requirements of Article 5 § 1 of the Convention? In particular:
(a) What were the legal grounds for the applicant’s detention?
(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?
Mr A. Karelskiy, Mr D. Karelskiy, Mr Mikaelyan, Mr Zharkoy, Mr Amatuni (no. 66856/14); Mr Zamarayev (no. 33606/15)
2. Did the applicants have a fair hearing in the administrative proceedings against them, in accordance with Article 6 § 1 of the Convention, as regards each applicant’s trial:
(a) Has the principle of equality of arms been respected, in particular as regards the admission and the assessment of evidence by the courts?
(b) Were the applicants afforded the opportunity to plead their case in the domestic courts, in particular to submit additional evidence or to call defence witnesses?
Mr A. Karelskiy, Mr D. Karelskiy, Mr Mikaelyan, Mr Zharkoy, Mr Amatuni, Mr Bardin, Mr Parkhomenko, Mr Petrenko (no. 66856/14); Mr Zamarayev (no. 33606/15)
3. As regards each applicant, were they able to examine witnesses against them, in particular the police officers who had arrested them, as required by Article 6 § 3 (d) of the Convention?
APPENDIX
No.
Application
no. and date of introduction
Applicant name
Date of birth
Place of residence
Nationality
Represented by
Charge and penalty
Rusian roubles
Final domestic decision details
Complaints
66856/14
02/10/2014
Aleksey Albertovich KARELSKIY
21/02/1969
Moscow
Russian
Kirill Nikolayevich KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 02/04/2014
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor; the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the applicant’s statements and his evidence.
Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the police officers who testified that had seen the applicant among the protesters and the police officers who had arrested him.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Dmirtiy Albertovich KARELSKIY
10/03/1967
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 18/04/2014
Art. 5 § 1 – unlawful detention for more than 4 hours.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor; the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the applicant’s statements and his evidence.
Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Arseniy Vladimirovich MIKAELYAN
30/04/1971
Bolshiye Vyazemy
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 18/04/2014
Art. 5 § 1 – unlawful detention for more than 4 hours.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor; the courts based their findings exclusively on the evidence submitted by the police officers and refused to call a defence witness.
Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Vasiliy Yuryevich ZHARKOY
31/08/1989
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 02/04/2014
Art. 5 § 1 – unlawful detention for 5 hours.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor; the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the applicant’s statements and his evidence.
Art. 6 § 3 (d) – the courts refused to call the police officers who had arrested the applicant.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Levon Tigranovich AMATUNI
27/11/1990
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 5.000
Appeal decision Moscow City Court 12/05/2014
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor; the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the applicant’s statements and his evidence.
Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Pavel Garryevich BARDIN
10/10/1975
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 28/04/2014
Art. 5 § 1 – unlawful detention for three and a half hours while being escorted to the police station.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor.
Art. 6 § 3 (d) – the appellate court refused to call the police officers who had arrested the applicant.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Aleksey Valeryevich MAKSIMOV
23/03/1976
Domodedovo
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 14/05/2014
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Sergey Borisovich PARKHOMENKO
13/03/1964
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Article 19.3 § 1 of the CAO
Administrative fine RUB 500
Appeal decision Moscow City Court 12/05/2014
Appeal decision Moscow City Court 12/05/2014
Art. 6 § 1 – no fair hearing in both sets of administrative proceedings: absence of the prosecutor.
Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant and who had drawn up the administrative reports (proceedings concerning charges under Art. 19.3 of the CAO)
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Yevgeniy Aleksandrovich PETRENKO
19/05/1959
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 28/04/2014
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor.
Art. 6 § 3 (d) – the appellate court refused to call the police officers who had arrested the applicant.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
33606/15
19/06/2015
Maksim Vladimirovich ZAMARAYEV
07/08/1974
Moscow
Russian
Kirill Nikolayevich KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision 28/01/2015 Moscow City Court
Art. 5 § 1 – unlawful arrest and detention for five hours.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial; the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the applicant’s evidence.
Art. 6 § 3 (d) – the courts refused to call the police officers who had arrested the applicant.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
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