Published on 29 January 2024
THIRD SECTION
Application no. 50346/19
Konstantin Aleksandrovich KOTOV
against Russia
lodged on 7 September 2019
communicated on 10 January 2024
SUBJECT MATTER OF THE CASE
The application concerns the applicant’s criminal conviction for participation in several unauthorised public events and for making calls to participate in an unauthorised public event. The case raises issues under Articles 5, 6, 8, 10, 11, 13 of the Convention and Article 1 of Protocol No. 1 to the Convention regarding criminal prosecution and issues under the well‑established case-law concerning the applicant’s calls to participate in an unauthorised public event, his detention, search, respect for property, fairness of the judicial proceedings.
On 2 March 2019 the applicant participated in an unauthorised public event in Moscow in support of another political activist. On 7 March 2019 the Nikulinskiy District Court of Moscow, as upheld on appeal by the Moscow City Court on 4 April 2019, convicted the applicant under Article 20.2 § 5 of the Code of Administrative Offences (CAO) to a fine of 20,000 Russian roubles (RUB).
On 13 May 2019 the applicant participated in an unauthorised public event in Moscow against politically motivated prosecution. On 15 May 2019 the Meshchanskiy District Court of Moscow, as upheld on appeal by the Moscow City Court on 30 May 2019, convicted the applicant under Article 20.2 § 8 of the CAO to five days’ detention.
On 12 June 2019 the applicant participated in an unauthorised rally in Moscow in support of I.G., an investigative journalist of Meduza. On 27 June 2019 the Presnenskiy District Court of Moscow, as upheld on appeal by the Moscow City Court on 6 August 2019, convicted the applicant under Article 20.2 § 6.1 of the CAO to a fine of RUB 20,000.
In July 2019 the applicant posted on Facebook an invitation to participate in a peaceful assembly related to elections to the Moscow City Duma. On 24 July 2019 the Tverskoy District Court of Moscow, as upheld on appeal by the Moscow City Court on 26 July 2019, convicted the applicant under Article 20.2 § 2 of the CAO to ten days’ detention.
On 10 August 2019 the applicant participated in an unauthorised public event in Moscow in support of unregistered candidates for election to the Moscow City Duma.
On 12 August 2019 the applicant was arrested on suspicion of repetitive violations of the procedure of organising or conducting public events and remanded in custody.
On 5 September 2019 the Tverskoy District Court of Moscow, as upheld on appeal by the Moscow City Court on 14 October 2019, convicted the applicant as charged under Article 212.1 of the Criminal Code and sentenced him to four years’ imprisonment.
On 27 January 2020 the Constitutional Court held that the applicant’s conviction had to be reviewed in accordance with the principles established in the Constitutional Court’s ruling on the interpretation of Article 212.1 of the Criminal Code.
On 2 March 2020 the Second Appellate Court of the General Jurisdiction quashed the appeal decision of 14 October 2019, remitted the criminal case for a fresh examination and remanded the applicant in detention.
On 20 April 2020 the Moscow City Court convicted the applicant as charged and sentenced him to one year and six months’ imprisonment.
QUESTIONS TO THE PARTIES
Was there a violation of the applicant’s right to freedom of expression and assembly, within the meaning of Articles 10 § 1 and 11 § 1 of the Convention, on account of his criminal conviction for repetitive violations of the procedure for organising or conducting manifestations? In particular,
a) Was the interference with the applicant’s rights prescribed by law in terms of Article 10 § 2? Is Article 212.1 of the Criminal Code, as interpreted by the Constitutional Court, in line with the Convention’s requirements as regards the quality of law? In particular, was the application of its provisions foreseeable in the applicant’s case?
b) Did the interference pursue a legitimate aim?
c) Was the interference “necessary in a democratic society”? Were the reasons given by the national authorities for the interference “relevant” and “sufficient”?
APPENDIX
List of WECL complaints
No.
Article
Complaint
1.
Article 5 § 1 –
unlawful deprivation of liberty
Arrest and detention on 24/07/2019 for the sole purpose of drawing up an administrative offence record
Arrest and detention between 10 and 11/08/2019 for the sole purpose of drawing up an administrative offence record; deprivation of liberty on 12/08/2019 for participating in unauthorised manifestations; no consent of the head of the Main Investigation Committee of Moscow for the request to remand the applicant in custody under FZ‑67 on election rights as the applicant was a member of election commission with the right of decisive vote
2.
Article 5 § 3 –
excessive length of pre-trial detention as regards criminal proceeding
12/08/2019 to 05/09/2019 and 02/03/2020 to 20/04/2020, Tverskoy District Court of Moscow, Moscow City Court, Second Appellate Court of the General Jurisdiction, 25 days and 1 month and 19 days, fragility of the reasons employed by the courts
3.
Article 5 § 4 –
deficiencies in proceedings for review of the lawfulness of detention
After quashing of the applicant’s conviction by the Second Appellate Court on 02/03/2020 and its decision to remand the applicant in custody, the applicant and his lawyers filed several requests for release which have not been examined
4.
Article 6 § 1 –
lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative‑offence proceedings
No prosecutor at the first instance and appellate courts in proceedings regarding calls to participate in an unauthorised manifestation - Final decision: Moscow City Court, 26/07/2019
5.
Article 6 § 1 and Article 6 § 3 (d) - unfair trial in view of restrictions on the right to examine witnesses
Inability to cross-examine in open court police officers on whose written statements the applicant’s conviction was based in proceedings regarding calls to participate in an unauthorised manifestation
6.
Article 8 §1 –
unlawful search
Search in the applicant’s apartment on 13/08/2019; date of authorisation: 13/08/2019, Main Investigative Department of the Investigative Committee of Russia for Moscow; Presnenskiy District Court of Moscow, 15/08/2019, Moscow City Court, 04/09/2019; no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion), no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, no relevant or sufficient reasons to justify the search: minor severity of the offence, particular circumstances: manner of the search (at night)
7.
Article 10 § 1 –
conviction for making calls to participate in public events
Administrative conviction under Article 20.2 § 2 of the CAO for calls to participate in an unauthorised manifestation on 19/07/2019 regarding local elections, published on Facebook; final decision: Moscow City Court, 26/07/2019, detention of 10 days
8.
Article 13 –
lack of any effective remedy in domestic law
No effective remedies as regards unlawful search
9.
Article 1 of Protocol No. 1 - interference with peaceful enjoyment of possessions
The applicant’s personal belongings not related to his criminal case were seized during the search, in particular, his mobile phone, and were not returned