Communicated on 13 June 2016
THIRD SECTION
Application no 4876/15
Mikhail Aleksandrovich KRIGER
against Russia and 3 other applications
lodged on 14 January 2015
STATEMENT OF FACTS
The applicants are five Russian nationals listed in the Appendix. They are represented before the Court by different lawyers, as listed in the Appendix.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
In 2012 the Russian opposition leader Alexey Navalnyy and his brother Oleg Navalnyy were charged with fraud and money-laundering. The charges against them were considered by many to be far-fetched and driven by political reasons.
On 24 April 2014 the public hearing in the criminal case against Alexey and Oleg Navalnyy started in the Zamoskvoretskiy District Court of Moscow. The hearing ended on 19 December 2014, when the court announced that judgment was to be pronounced on 15 January 2015. Thereafter, activists created a group in the social network Facebook to coordinate a “people’s gathering” (народный сход). It was to be held on 15 January 2015 in Moscow in support of the Navalnyy brothers.
By 29 December 2014 more than 30,000 people had joined this group on Facebook. However, on that day the Zamoskvoretskiy District Court of Moscow announced that judgment was now to be pronounced on 30 December 2014, at 9 a.m. Thereafter, the activists created a new Facebook group to coordinate a “people’s gathering” on 30 December 2014 in Moscow.
In the morning of 30 December 2014 the Zamoskvoretskiy District Court of Moscow pronounced the operative part of the judgment. Alexey and Oleg Navalnyy were convicted as charged and sentenced to three and a half years’ imprisonment; Alexey Navalnyy’s sentence was suspended.
In the evening of 30 December 2014 more than a thousand people came to Manezhnaya Square in Moscow to protest against the conviction of the Navalnyy brothers. By that time a number of police officers and troops of the internal military service had arrived at the square. They dispersed the gathering, as it had not been duly authorised by the city authorities. Around 250 people, including the applicants, were apprehended by the police.
B. Relevant domestic law and practice
1. 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 their 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 25.1 Individuals against whom administrative proceedings have been instituted
“1. Individuals against whom administrative proceedings have been instituted are entitled to study the case-file materials, to make submissions, to adduce evidence, to lodge representations and challenges, and to have legal assistance ...”
Article 27.2 Escorting of individuals
“1. The escort or 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 discovered 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 rights and obligations under this Code explained to him, and the 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 48 hours.
3. Persons subject to administrative proceedings concerning offences punishable, among other administrative sanctions, by administrative arrest may be subject to administrative detention for up to 48 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 the police station] ...”
2. 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 by 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. 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 in the courts’ jurisdiction. Meanwhile, administrative-offence 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 their decisions in the courts (Article 30.1 § 1 of the CAO). Such review proceedings should provide for equality of arms and adversarial proceedings ...”
COMPLAINTS
All the applicants’ complaints are set out in the Appendix.
The applicants complain under Article 11 of the Convention about the allegedly unlawful and disproportionate measures taken against them as peaceful protesters. Two of them also allege a violation of Article 10 of the Convention in this respect.
All the applicants allege that their apprehension by police officers during the gathering was arbitrary. Two of them also claim that their detention at the police station after the arrest was unlawful, in violation of Article 5 § 1 of the Convention.
The applicants complain under Article 6 § 1 of the Convention that the proceedings in which they were convicted of the administrative offences fell short of the guarantees of a fair hearing. Three of them point out that there was no prosecuting authority; that role was allegedly performed by the judge. Besides, three applicants allege that the courts based their findings exclusively on the evidence submitted by the police officers. One applicant also alleges that he had no access to a lawyer after his arrest and no adequate time to retain a lawyer before the first-instance hearing.
One applicant complains that he was not allowed to meet the Ukrainian Consul at the police station, and thus be provided with legal and consular aid. He relies on Article 8 of the Convention.
Three applicants complain under Article 6 § 3 (d) of the Convention that the courts refused to call prosecution witnesses, namely the police officers who had arrested them at the gathering.
QUESTIONS
COMMON QUESTIONS
1. 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?
2. If so, was that interference prescribed by law and necessary in terms of Article 11 § 2 of the Convention, in respect of each applicant? In particular, given the spontaneous character of the assembly and that it was impossible to give notice within the time-limit prescribed by law, was the interference proportionate in the circumstances of the present case (see Bukta and Others v. Hungary, no. 25691/04, §§ 35-37, ECHR 2007‑III, and Eva Molnar v. Hungary, no. 10346/05, §§ 36-38, 7 January 2009)?
3. Was each applicant’s arrest on 30 December 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 demonstration on 30 December 2014?
(b) Did the arrest pursue any aim enumerated in Article 5 § 1 of the Convention?
CASE-SPECIFIC QUESTIONS
Applications nos. 4876/15 and 37483/15
1. As regards each applicant, was his deprivation of liberty lasting more than three 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. 30367/15 and 55308/15
2. As regards the applicants’ trials, did they have fair hearings by independent and impartial tribunal in the administrative proceedings against them, in accordance with Article 6 § 1 of the Convention, given the absence of any prosecuting authority, whose role was allegedly performed by the judge?
Applications nos. 4876/15, 30367/15 and 37483/15
3. Did the applicants have a fair hearing in the administrative proceedings against them, in accordance with Article 6 § 1 of the Convention? In particular, has the principle of equality of arms been respected as regards the admission and the assessment of evidence by the courts?
Applications nos. 30367/15 and 55308/15
4. 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?
Application no. 4876/15
5. Was the applicant afforded adequate time and facilities for the preparation of his defence, and was he able to retain counsel for the first‑instance hearing, as required by Article 6 § 3 (b) and (c) of the Convention?
Application no. 37483/15
6. With regard to the allegation that the applicant was not allowed to meet the Ukrainian Consul after his arrest and thus be provided with legal and consular aid, was he able to defend himself, as required by Article 6 § 3 (c) 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
Particular facts
Complaints
4876/15
14/01/2015
Mikhail Aleksandrovich KRIGER
23/02/1960
Moscow
Russian
Karinna Akopovna MOSKALENKO
Article 19.3 § 1 of the CAO Administrative detention 15 days
Appeal decision 13/01/2015 Moscow City Court
In the domestic proceedings the applicant denied participation in the public gathering and alleged that he came to the Manezhnaya square on his own.
Art. 5 § 1 – unlawful arrest and detention for more than three hours.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: the courts based their findings exclusively on the evidence submitted by the police officers.
A6 § 3 (c) – no access to lawyer after the arrest and at the first-instance trial.
Art. 11 – arrest and conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
30367/15
13/05/2015
Lev Aleksandrovich PONOMAREV
02/09/1941
Moscow
Russian
Karinna Akopovna MOSKALENKO
Article 19.3 § 1 of the CAO
Administrative fine RUB 1.000
Appeal decision 10/04/2015 Moscow City Court
The applicant participated in the public gathering.
Art. 5 § 1 – unlawful arrest.
Art. 6 § 1 – lack of 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 police officers who had arrested the applicant.
Art. 11 – arrest for and conviction of an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
37483/15
14/07/2015
Roman Borisovich NEMUCHINSKIY
12/02/1981
Dnepropetrovsk
Ukrainian
Karinna Akopovna MOSKALENKO
Article 19.3 § 1 of the CAO
Administrative detention 15 days
Appeal decision 26/03/2015 Moscow City Court
The applicant participated in the public gathering.
Art. 5 § 1 – unlawful arrest and detention for more than 3 hours.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: the courts based their findings exclusively on the evidence submitted by the police officers.
Art. 6 § 3 (c) (re-classified, the applicant complains under Art. 8) – the Ukrainian Consul was not allowed to see the applicant at the police station Meshchanskiy and to provide him with legal and consular aid.
Art. 11 – arrest and conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
55308/15
16/10/2015
Aleksandr Georgiyevich SHCHERBAKOV
04/01/1946
Moscow
Russian
Yelena
Yuryevna
PERSHAKOVA
Article 19.3 § 1 of the CAO
Administrative fine RUB 1.000
Appeal decision 16/04/2015 Moscow City Court
The applicant participated in the public gathering.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: absence of the prosecutor in the trial.
Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the police officers who had arrested the applicant.
Art. 10 and 11 – arrest for and conviction of an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
Dmitriy Valeryevich VINOGRADOV
30/11/1983
Moscow
Russian
Article 19.3 § 1 of the CAO
Administrative fine RUB 1.000
Appeal decision 16/04/2015 Moscow City Court
The applicant participated in the public gathering.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor at the trial.
Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the police officers who had arrested the applicant.
Art. 10 and 11 – arrest for and conviction of an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
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