KOTLYARSKIY v. RUSSIA and 13 other applications

Communicated on 17 May 2016

THIRD SECTION

Application no 15024/12
Aleksey Petrovich KOTLYARSKIY against Russia
and 13 other applications
(see list appended)

STATEMENT OF FACTS

The applicants are eighteen Russian nationals; they are listed in the Appendix. Some of them are represented before the Court (see the Appendix).

A. The circumstances of the cases

These applications are based on the events examined in the judgment Navalnyy and Yashin v. Russia (no. 76204/11, §§ 6-11, 4 December 2014). The facts relevant to these cases, as submitted by the applicants, may be summarised as follows.

On 4 December 2011 general elections to the State Duma took place in Russia.

On 5 December 2011 the applicants took part in a public demonstration (a meeting) at Chistyye Prudy, Moscow, protesting against the elections, which they alleged had been rigged. The meeting had been duly authorised by the mayor of Moscow.

After the demonstration the protesters, including the applicants, were arrested, allegedly for no reason, put into police busses and taken to different police stations. The applicants were detained for several hours before being brought before Justices of the Peace.

On different dates all the applicants were found guilty of failure to obey a lawful order of a police officer, an offence under Article 19.3 of the Code of Administrative Offences, and sentenced to either administrative fines or administrative detention, as listed in the Appendix. These judgments were upheld in all cases by the appellate and supervisory courts (see the Appendix).

B. Relevant domestic law

For relevant domestic law see Navalnyy and Yashin (cited above, §§ 43‑44).

COMPLAINTS

The applicants’ complaints are indicated in the Appendix.

All the applicants complain under Article 11 of the Convention about the allegedly unlawful and disproportionate measures taken against them as peaceful protesters. A number of them also complain under Article 5 of the Convention about their arrest and detention, alleging that it was arbitrary and had no legal grounds (see the Appendix).

All the applicants further complain under Article 6 § 1 of the Convention that the proceedings in which they were convicted of an administrative offence fell short of the guarantees of a fair hearing. The applicants claim, in particular, that the courts based their findings exclusively on the evidence submitted by the police officers and refused to accept additional evidence, such as video recordings, or to call defence witnesses, as listed in the Appendix. They further maintain that the courts declined to take into account their versions of the events as well as the defence witnesses’ statements, while giving weight to the police officers’ statements. Finally, the applicants complain that the impartiality requirement was not respected in their cases owing to the absence of any prosecuting authority; that role was allegedly performed by the judge.

Some of the applicants complain under Article 3 of the Convention about poor conditions of their detention at different police stations and about their transfers between the detention facilities, as listed in the Appendix.

Several applicants raise separate complaints under Article 6 § 3 (b), (c) and (d) of the Convention. Mr Ilupin complains about lack of adequate facilities to prepare his defence, given that he was not given a copy of the report on the administrative offence which went before the first-instance hearing (see the Appendix). Furthermore, Mr Yudin, Mr Dzhalagoniya, Mr Orel, Mr Tarasov, Mr Kondrashev, Mrs L. Krutenko and Ms T. Krutenko allege that they had no access to a lawyer after their arrest and at the first-instance trial. They also complain, together with Mr Apakidze, Mr Vlasov and Mr Doronin, about the courts’ refusal to call prosecution witnesses, namely the police officers who had drawn up the administrative reports.

COMMON QUESTIONS

1. As regards each applicant, has there been an interference with his or her 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. 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?

(c) Was the impartiality requirement respected in each case, given the absence of any prosecuting authority and the role of the judge in these circumstances?

CASE-SPECIFIC QUESTIONS

Applications nos. 21041/12, 21052/12, 21056/12, 21059/12, 21065/12, 21066/12, 21068/12, 21072/12, 21096/12, 21102/12, 57141/12

1. Were the conditions of the applicants’ detention at different police stations from 5 to 8 December 2011, as listed in the Appendix, compatible with Article 3 of the Convention? The Government are requested to indicate as regards each applicant:

(a) Were the applicants provided with water and food after their arrest and during their detention?

(b) What was the size of the cells in which the applicants were detained?

(c) Were the applicants provided with a sleeping place and bedding?

(d) Did the applicants have free access to sanitary facilities?

(e) Were the cells heated?

Applications nos. 21056/12, 21065/12, 21068/12, 21072/12, 21096/12, 21102/12

2. Were the conditions of each applicant’s transfer between the detention facilities on 7-9 December 2011, as listed in the Appendix, compatible with Article 3 of the Convention? In particular, were the police busses heated?

Applications nos. 15024/12, 15027/12, 21041/12, 21052/12, 21056/12, 21059/12, 21065/12, 21066/12, 21068/12, 21072/12, 21096/12, 21102/12, 42535/12

3. Was each applicant’s arrest on 5 December 2011 compatible with the requirements of Article 5 § 1 of the Convention? In particular:

(a) What were the legal grounds for the applicant’s arrest after the demonstration on 5 December 2011?

(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?

Applications nos. 15024/12, 15027/12, 42535/12

4. As regards each applicant, was his or her deprivation of liberty of 18 to 48 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?

Applications nos. 21041/12, 21066/12, 21068/12, 21072/12, 42535/12

5. With regard to the allegation that the applicants were not given access to a lawyer after the arrest and at the first-instance trial, was each of them able to defend himself or herself, as required by Article 6 § 3 (c) of the Convention?

Applications nos. 21041/12, 21052/12, 21065/12, 21066/12, 21096/12, 42535/12

6. As regards each applicant, were they able to examine witnesses against them, in particular the police officers who had drawn up the administrative reports, as required by Article 6 § 3 (d) of the Convention?

Application no. 57141/12

7. Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) 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

(Russian roubles)

Final domestic decision details

Complaints    

15024/12

02/03/2012

Aleksey Petrovich KOTLYARSKIY

16/06/1987

Moscow

Russian

Nadezhda Viktorovna YERMOLAYEVA

Art. 19.3 § 1 of the CAO

Administrative fine 1.000 Russian roubles (RUB)

Appeal decision Basmannyy District Court of Moscow 12/01/2012

Art. 5 § 1 – arbitrary arrest following the demonstration and detention for 48 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 refused to call defence witnesses, the appellate court failed to answer the applicant’s counsellor’s arguments.

Art. 11 – arrest following the demonstration, detention and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.   

15027/12

02/03/2011

Ilya Valentinovich VORONTSOV

23/04/1985

Moscow

Russian

Nadezhda Viktorovna YERMOLAYEVA

Art. 19.3 § 1 of the CAO

Administrative fine RUB 1.000

Appeal decision Basmannyy District Court of Moscow 19/01/2012

Art. 5 § 1 – arbitrary arrest following the demonstration and detention for 48 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 refused to call defence witnesses, the appellate court failed to answer the applicant’s counsellor’s arguments.

Art. 11 – arrest following the demonstration, detention and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.   

21041/12

29/03/2012

Grigoriy Borisovich YUDIN

10/08/1983

Moscow

Russian

Aleksey Anatolyevich NAVALNYY

Art. 19.3 § 1 of the CAO

Administrative detention 15 days

Supervisory decision Moscow City Court 19/12/2011

Art. 3 – conditions of detention at the police station Basmannoye 05/12/2011–08/12/2011: overcrowding, no sleeping place, lack of meals and beverages, restricted access to the toilet.

Art. 5 § 1 – arbitrary arrest following the demonstration.

Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial, lack of impartiality on behalf of the court.

Art. 6 § 3 (c) – no access to lawyer after the arrest and at the first-instance trial.

Art. 6 § 3 (d) – the first-instance court refused to call prosecution witnesses, namely the policemen.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.   

21052/12

29/03/2012

Vitaliy Valeryevich APAKIDZE

03/04/1983

Moscow

Russian

Aleksey Anatolyevich NAVALNYY

Art. 19.3 § 1 of the CAO

Administrative detention 15 days

Appeal decision Basmannyy District Court of Moscow 07/12/2011

Art. 3 – conditions of detention at the police station 05/12/2011 – 08/12/2011: overcrowding, no sleeping place, lack of meals and beverages, restricted access to the toilet.

Art. 5 § 1 – arbitrary arrest following the demonstration.

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 refused to call defence witnesses, namely the applicant’s wife.

Art. 6 § 3 (c) – no access to lawyer after the arrest.

Art. 6 § 3 (d) – the first-instance court refused to call prosecution witnesses, namely the policemen.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.   

21056/12

29/03/2012

Emil Pavlovich TEREKHIN

19/08/1977

Moscow

Russian

Aleksey Anatolyevich NAVALNYY

Art. 19.3 § 1 of the CAO

Administrative detention 7 days

Appeal decision Meshchanskiy District Court of Moscow 07/12/2011

Art. 3 – conditions of detention at the police station 05/12/2011 – 08/12/2011: overcrowding, no sleeping place, lack of meals and beverages; transportation to the place of detention on 08/12/2011.

Art. 5 § 1 – arbitrary arrest following the demonstration.

Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.   

21059/12

29/03/2012

Fedor Olegovich BOGATYREV

24/09/1976

Moscow

Russian

Aleksey Anatolyevich NAVALNYY

Art. 19.3 § 1 of the CAO

Administrative detention 15 days

Appeal decision Basmannyy District Court of Moscow 06/12/2011

Art. 3 – conditions of detention at the police station 05/12/2011 –08/12/2011: no sleeping place, lack of meals and beverages, restricted access to the toilet.

Art. 5 § 1 – arbitrary arrest following the demonstration.

Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.   

21065/12

29/03/2012

Sergey Igorevich VLASOV

24/07/1980

Zhukovskiy

Russian

Aleksey Anatolyevich NAVALNYY

Art. 19.3 § 1 of the CAO

Administrative detention 10 days

Appeal decision Basmannyy District Court of Moscow 07/12/2011

Art. 3 – conditions of detention at the police station 07/12/2011 – 09/12/2011: overcrowding, no sleeping place, lack of meals and beverages; transportation to the place of detention on 09/12/2011.

Art. 5 § 1 – arbitrary arrest following the demonstration.

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 found the applicant’s statements and defence witness’s testimony unreliable.

Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the policemen.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.   

21066/12

29/03/2012

Georgi Yedisonovich DZHALAGONIYA

18/09/1989

Moscow

Russian

Aleksey Anatolyevich NAVALNYY

Art. 19.3 § 1 of the CAO

Administrative detention 10 days

Appeal decision Basmannyy District Court of Moscow 07/12/2011

Art. 3 – conditions of detention at the police station 05/12/2011 – 08/12/2011: overcrowding, no sleeping place, lack of meals and beverages, restricted access to the toilet.

Art. 5 § 1 – arbitrary arrest following the demonstration.

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 found the applicant’s statements and defence witness’s testimony unreliable.

Art. 6 § 3 (c) – no access to lawyer after the arrest.

Art. 6 § 3 (d) – the appellate court refused to call prosecution witnesses, namely the policemen.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.   

21068/12

29/03/2012

Andrey Viktorovich OREL

22/01/1977

Moscow

Russian

Aleksey Anatolyevich NAVALNYY

Art. 19.3 § 1 of the CAO

Administrative detention 15 days

Appeal decision Basmannyy District Court of Moscow 16/12/2011

Art. 3 – conditions of detention at the police station Krasnoselskoye 05/12/2011 – 07/12/2011: overcrowding, no sleeping place, lack of meals and beverages, restricted access to the toilet; transportation to the place of detention on 08/12/2011.

Art. 5 § 1 – arbitrary arrest following the demonstration.

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, the appellate court refused to accept a video record submitted by the applicant as well as to question a defence witness.

Art. 6 § 3 (c) – no access to lawyer after the arrest and at the first-instance trial.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly. 

21072/12

29/03/2012

Igor Aleksandrovich TARASOV

16/09/1980

Moscow

Russian

Aleksey Anatolyevich NAVALNYY

Art. 19.3 § 1 of the CAO

Administrative detention 15 days

Appeal decision Basmannyy District Court of Moscow 07/12/2011

Art. 3 – conditions of detention at the police station Krasnoselskoye 05/12/2011 – 07/12/2011: overcrowding, no sleeping place, lack of meals and beverages, restricted access to the toilet; transportation to the place of detention on 08/12/2011.

Art. 5 § 1 – arbitrary arrest following the demonstration.

Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.

Art. 6 § 3 (c) – no access to lawyer after the arrest and at the first-instance trial.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly. 

21096/12

29/03/2012

Dmitriy Dmitriyevich DORONIN

22/08/1983

Moscow

Russian

Aleksey Anatolyevich NAVALNYY

Art. 19.3 § 1 of the CAO

Administrative detention 10 days

Appeal decision Basmannyy District Court of Moscow 29/12/2011

Art. 3 – conditions of detention at the police station 05/12/2011 – 08/12/2011: overcrowding, no sleeping place, lack of meals and beverages; transportation to the place of detention on 08/12/2011.

Art. 5 § 1 – arbitrary arrest following the demonstration.

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.

Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the policemen.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly. 

21102/12

29/03/2012

Aleksandr Sergeyevich ROGANOV

28/05/1983

Moscow

Russian

Aleksey Anatolyevich NAVALNYY

Art. 19.3 § 1 of the CAO

Administrative detention 15 days

Appeal decision Basmannyy District Court of Moscow 16/12/2011

Art. 3 – conditions of detention at the police station Krasnoselskoye 05/12/2011 ‑07/12/2011: overcrowding, no sleeping place, lack of meals and beverages, restricted access to the toilet; transportation to the place of detention on 08/12/2011.

Art. 5 § 1 – arbitrary arrest following the demonstration.

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, the appellate court refused to accept a video record submitted by the applicant as well as to question a defence witness.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly. 

42535/12

28/06/2012

Aleksandr Nikolayevich KONDRASHEV

15/08/1990

Moscow

Russian

Eleonora Grantovna DAVIDYAN

Art. 19.3 § 1 of the CAO

Administrative detention 3 days

Appeal decision Tverskoy District Court of Moscow 25/01/2012

Art. 5 § 1 – arbitrary arrest following the demonstration and detention for 18 hours.

Art. 6 § 1 – no fair hearing in administrative proceedings: no prosecutor in the trial; the courts based their findings exclusively on the evidence submitted by the police officers and found the applicant’s statements and defence witnesses’ testimony unreliable, the appellate court refused to obtain video records from the police on the applicant’s demand and to call defence witnesses.

Art. 6 § 3 (c) – the applicant did not have adequate time to find a counsel before the first-instance hearing and to consult with him.

Art. 6 § 3 (d) – the appellate court refused to call prosecution witnesses, namely the policemen.

Art. 11 – arrest following the demonstration, detention and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.

Lubov Viktorovna KRUTENKO

01/05/1990

Moscow

Russian

Eleonora Grantovna DAVIDYAN

Art. 19.3 § 1 of the CAO Administrative fine RUB 1.000

Appeal decision Tverskoy District Court of Moscow 27/01/2012

Art. 5 § 1 – arbitrary arrest following the demonstration and detention for 18 hours.

Art. 6 § 1 – no fair hearing in administrative proceedings: no prosecutor in the trial; the courts based their findings exclusively on the evidence submitted by the police officers and found the applicant’s statements and defence witnesses’ testimony unreliable, the courts refused to obtain video records from the police on the applicant’s demand and to call defence witnesses.

Art. 6 § 3 (c) – the applicant did not have adequate time to find a counsel before the first-instance hearing and to consult with him.

Art. 6 § 3 (d) – the appellate court refused to call prosecution witnesses, namely the policemen.

Art. 11 – arrest following the demonstration, detention and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.

Tamara Viktorovna KRUTENKO

01/05/1990

Moscow

Russian

Eleonora Grantovna DAVIDYAN

Art. 19.3 § 1 of the CAO Administrative fine RUB 1.000

Appeal decision Tverskoy District Court of Moscow 20/01/2012

Art. 5 § 1 – arbitrary arrest following the demonstration and detention for 18 hours.

Art. 6 § 1 – no fair hearing in administrative proceedings: no prosecutor in the trial; the courts based their findings exclusively on the evidence submitted by the police officers and found the applicant’s statements and defence witnesses’ testimony unreliable.

Art. 6 § 3 (c) – the applicant did not have adequate time to find a counsel before the first-instance hearing and to consult with him.

Art. 6 § 3 (d) – the appellate court refused to call prosecution witnesses, namely the policemen.

Art. 11 – arrest following the demonstration, detention and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.

Darya Danovna ROZENSHEYN

03/11/1978

Moscow

Russian

Eleonora Grantovna DAVIDYAN

Art. 19.3 § 1 of the CAO

Administrative fine RUB 500

Appeal decision Tverskoy District Court of Moscow 28/02/2012

Art. 5 § 1 – arbitrary arrest following the demonstration and detention for 18 hours.

Art. 6 § 1 – no fair hearing in administrative proceedings: no prosecutor in the trial; the courts based their findings exclusively on the evidence submitted by the police officers and found the applicant’s statements and defence witnesses’ testimony unreliable.

Art. 11 – arrest following the demonstration, detention and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.

Ilya Ravilyevich SETDINOV

28/09/1989

Moscow

Russian

Eleonora Grantovna DAVIDYAN

Art. 19.3 § 1 of the CAO

Administrative detention 2 days

Appeal decision Tverskoy District Court of Moscow 30/12/2011

Art. 5 § 1 – arbitrary arrest following the demonstration and detention for 18 hours.

Art. 6 § 1 – no fair hearing in administrative proceedings: no prosecutor in the trial; the courts based their findings exclusively on the evidence submitted by the police officers and found the applicant’s statements and defence witnesses’ testimony unreliable.

Art. 11 – arrest following the demonstration, detention and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly. 

57141/12

31/07/2012

Sergey Iosifovich ILUPIN

29/10/1979

Moscow

Russian

Art. 19.3 § 1 of the CAO

Administrative detention 1 day

Appeal decision Tverskoy District Court of Moscow 31/01/2012

Art. 3 – conditions of detention at the police station Severnoye Izmaylovo 05/12/2011 – 06/12/2011: no separate sleeping place, no bedding, no heating, restricted access to the toilet, lack of meals and beverages.

Art. 6 § 1 – no fair hearing in administrative proceedings: the applicant was not handed the report on administrative offence before the first-instance hearing; the courts based their findings exclusively on the evidence submitted by the police officers and found the applicant’s statements and defence witness’s testimony unreliable.

Art. 11 – arrest following the demonstration and conviction for administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.

 

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