Communicated on 19 December 2013
FIRST SECTION
Application no. 6312/13
Denis Aleksandrovich LUTSKEVICH against Russia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The applicants were detained on suspicion of having played an active role in the mass disorders that allegedly took place at a political rally held on 6 May 2012 at Bolotnaya Square in Moscow. They were arrested on different dates between 8 June 2012 and 6 February 2013.
Their submissions on the circumstances in which a demonstration took place and was dispersed by the authorities are set out in Section A below. The facts relating to the individual applicants’ arrest and detention, and their complaints, are set out in Section B.
A. Background facts
On 23 April 2012 five individuals, none of whom are applicants in the present case, submitted a notice of a public demonstration to the mayor of Moscow stating the date, time and route of the intended march. It was to begin at 4 p.m. on 6 May 2012, with an estimated number of about 5,000 participants, who would march from Kaluzhskaya Square down Bolshaya Yakimanka Street and Bolshaya Polyanka Street, followed by a meeting at Bolotnaya Square. The meeting was to end at 7.30 p.m. The notice stated that the proposed demonstration was intended “to express protest against abuses and falsifications in the course of the elections to the State Duma and of the President of the Russian Federation, and to express a demand for fair elections, respect for human rights, the rule law and the international obligations of the Russian Federation”.
On 4 May 2012 the deputy mayor of Moscow charged the Tsentralnyy district prefect with assisting the organisers of the demonstration in maintaining public order and security during the event.
On 5 May 2012 a plan of the intended demonstration was officially published, which included a map of the area designated for the march and the meeting. The centre of Bolotnaya Square was indicated on it as the place of the meeting.
On 6 May 2012 all of Bolotnaya Square, except a narrow strip along its embankment, was barred with metal barriers and cordoned off by the riot police. The strip was left to serve as a corridor leading to the entrance to the meeting venue, and it was equipped with 15 metal detectors.
The march began as planned at 4 p.m. The turnout exceeded the expectations, but there is no consensus as to the exact numbers. The organisers of the demonstration considered that about 25,000 people took part in the event. The police stated the number of participants was 8,000, and the estimates given in different media varied between 45,000 and 120,000 people.
The march down Yakimanka Street and Bolshaya Polyanka Street went peacefully without any disruption. However, when the marchers arrived at the corridor, which was substantially narrower than the streets by which they had arrived, a stampede and panic occurred. Apparently some protestors attempted to break through the police cordon, but they were forced back to the restricted area and clashes between them and the police began. The police allegedly used truncheons, electric shock and teargas against the protestors.
According to the official sources 436 protestors were arrested at the site of the demonstration, but the organisers considered their number underestimated and claimed that there had been about 650 persons taken into custody.
On the same day the Investigative Committee of the Russian Federation opened criminal proceedings to investigate the suspected mass disorders and violent acts against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code).
On 28 May 2012 the investigation was also launched into the criminal offence of organising mass disorders (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.
On 22 June 2012 the Investigative Committee set up an investigation group of 27 investigators and put them in charge of the criminal file concerning the events of 6 May 2012.
On unidentified date two human rights activists filed a request with the Investigative Committee to open criminal investigation into the conduct of the police in the above events, in particular their alleged suppression of the lawful public demonstration. There is no information about the follow-up to this request.
Another petition was filed, also on unidentified date, by 44 human rights activists and members of NGOs, calling for curbing repression against the protestors arrested and prosecuted in relation to the events of 6 May 2012 and denying that mass riots had taken place during the demonstration.
B. The applicants’ individual cases
1. The application of Mr Lutskevich (no. 6312/13)
(a) The applicant’s arrest and pre-trial detention
At the time of his arrest the applicant was a first-year student of the Moscow Humanities University, the faculty of culture studies.
He claims that on 6 May 2012 he arrived at Bolotnaya Square to take part in the peaceful demonstration and that he did not intend to take part in any disorder or clashes with the police. However, he claims that he was beaten up by the police as they were dispersing the demonstration.
On 7 May 2012 at 4 a.m. the applicant was admitted to the emergency ward of the hospital and was examined by a traumatology doctor. He was diagnosed with the multiple hematomas on the chest, the spine, shoulders, knees and head and multiple abrasions.
On unidentified date the Investigative Committee of the Russian Federation opened criminal investigation into the applicant’s beatings. The file was referred to the Moscow branch of the Investigative Committee. The applicant has not heard about it since.
Until 9 June 2013 the applicant continued to study at the university while living at his usual address. On the latter date the applicant was detained on remand on charges of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012.
On the same date the Basmannyy District Court of Moscow examined the request to detain the applicant pending criminal investigation. It found that that there had been sufficient reasons to believe that the applicant was likely to abscond, to continue his criminal activity, to influence witnesses, to destroy evidence, or to otherwise obstruct the course of justice. It noted that the applicant’s father was a Ukrainian national living in Ukraine and the applicant therefore had a possibility to flee. It dismissed the applicant’s request for an alternative measure of restraint, including a house arrest.
On 18 June 2012 charges were brought against the applicant for having participated in mass disorders, aggravated by violence, and for having committed an act of violence against an official. In particular, he was accused of having torn a protection helmet off a police officer’s head.
On 11 July 2012 the Moscow City Court upheld the detention order of 9 June 2012.
On 7 August 2012 the Basmannyy District Court of Moscow examined the investigator’s request to extend the term of the applicant’s detention by two months and 28 days. The applicant requested to select another measure of restraint pending trial, such as house arrest, or a recognisance not to leave Moscow, or a bail of RUB 500,000, or personal guarantees. On the same day the court found that the circumstances that had justified the detention order had not changed and extended the applicant’s detention until 6 November 2012.
On 5 September 2012 the Moscow City Court upheld the extension order of 7 August 2012.
On 2 November 2012 the Basmannyy District Court granted another extension of the applicant’s detention, until 6 March 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 21 November 2012 the charges against the applicant were modified to specify the circumstances of the dispersal of the demonstration on 6 May 2012 and to include an accusation that the applicant had thrown three chunks of tarmac in the direction of the policemen and that he had hit a policeman with his hand at least once.
On 27 February 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 9 June 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for determination of criminal charges. On 6 June 2013 the latter court granted another extension of the applicant’s detention, until 24 November 2013. This decision concerned all 12 defendants in the case. Having rejected the applicant’s request for another measure of restraint, the court held that no other measure could secure the course of justice in this case.
On 2 July 2013 the Moscow City Court upheld this extension order.
On 6 August 2013 the Zamoskvoretskiy District Court of Moscow refused to examine the applicant’s request for a review of his continued detention. On 23 August 2013 the same court refused to consider an appeal against the decision of 6 August 2013.
(b) Conditions in the detention facility, in the courtroom and during transfer
The applicant was detained in the detention facility IZ-77/5 in Moscow. He claims that he was detained in different cells and that in all of them the conditions had been poor.
The applicant alleges that during the trial he and other 11 defendants are crumped in a small room separated by a plastic partition from the rest of the courtroom. The room lacks space, ventilation and is virtually soundproof, effectively preventing him from participating in the proceedings. The bench has no backrest. The lack of space makes it impossible to have documents or to consult one’s counsel during the hearing.
According to the applicant, the convoy room (the “box”) where he waits before and after the hearing is too small, poorly equipped, lacks ventilation and light. The applicant cannot use his glasses in the convoy room. During the personal search conducted in the convoy room the applicant is required to strip naked and to perform sit-ups.
The applicant also alleges that he is transported between the detention facility and the courtroom in the overcrowded vans with lacking ventilation. The transfer takes about three hours in the morning and up to five hours in the evening, which deprives him of sleep and hot meals. There is no possibility to use toilet during the transfer.
2. The application of Mr Gushchin (no. 53390/13)
At the time of his arrest the applicant was a student and was working part-time.
On 6 May 2012 he took part in the demonstration arrived at Bolotnaya Square.
On 6 February 2013 his flat was searched and his travel passport was seized. The applicant was arrested on charges of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012.
On 7 February 2013 the Basmannyy District Court of Moscow examined the request to detain the applicant pending criminal investigation. It found that that there had been sufficient reasons to believe that the applicant was likely to abscond, to continue his criminal activity, to influence witnesses, to destroy evidence, or to otherwise obstruct the course of justice. To support this view the court relied on undisclosed operative information from the operative-search bodies. It also indicated that the applicant had a travel passport and therefore could flee. It authorised the applicant’s detention until 6 April 2013.
On 27 February 2013 the Moscow City Court upheld the detention order of 7 February 2013.
On 1 April 2013 the Basmannyy District Court examined a request for an extension of the applicant’s pre-trial detention. It noted that the applicant had been previously charged of an administrative offence and considered that in these circumstances he was likely to obstruct the course of justice. It found that the circumstances that had justified the detention order had not changed and extended the applicant’s detention until 6 August 2013.
On 24 April 2013 the Moscow City Court upheld the detention order of 1 April 2013.
3. The application of Mr Polikhovich (no. 62630/13)
(a) The applicant’s arrest and pre-trial detention
At the time of his arrest the applicant was a second-year student of the Moscow University of Social Studies, the faculty of conflict studies. He was also working part-time as a courier for an insurance company.
He claims that on 6 May 2012 he arrived at Bolotnaya Square to take part in the peaceful demonstration and that he did not intend to take part in any disorder or clashes with the police.
Until 26 July 2012 the applicant continued to study at the university while living at his usual address. On the latter date the applicant was detained on remand on charges of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012.
On 27 July 2012 the Basmannyy District Court of Moscow examined the request to detain the applicant pending criminal investigation. It found that that there had been sufficient reasons to believe that the applicant was likely to abscond, to continue his criminal activity, to influence witnesses, to destroy evidence, or to otherwise obstruct the course of justice. It indicated in particular that according to the police the applicant was an active member of “organisations of destructive character”. It dismissed the applicant’s request for an alternative measure of restraint, including a 500,000 Russian roubles (RUB) bail, a personal guarantee and a recognisance not to leave Moscow.
On 1 August 2012 charges were brought against the applicant for having participated in mass disorders, aggravated by violence, and for having committed an act of violence against an official. In particular, he was accused of having pushed away the police officers who were arresting other protestors.
On 27 August 2012 the Moscow City Court upheld the detention order of 27 July 2012.
On 24 September 2012 the Basmannyy District Court examined a request for an extension of the applicant’s pre-trial detention. The applicant requested to select another measure of restraint pending trial, such as house arrest, or a recognisance not to leave Moscow, or a bail of RUB 500,000, or personal guarantees. On the same day the court found that the circumstances that had justified the detention order had not changed and extended the applicant’s detention until 6 November 2012.
On 29 October 2012 the Basmannyy District Court granted another extension of the applicant’s detention, until 6 March 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 15 November 2012 the charges against the applicant were modified to specify the circumstances of the dispersal of the demonstration on 6 May 2012 and to include an accusation that during the demonstration the applicant had been obstructing the police by building barricades and trying to break through the police cordon.
On 5 March 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 6 July 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for determination of criminal charges.
On 6 June 2013 the latter court granted another extension of the applicant’s detention, until 24 November 2013. This decision concerned all 12 defendants in the case. Having rejected the applicant’s request for another measure of restraint, the court held that no other measure could secure the course of justice in this case.
On 2 July 2013 the Moscow City Court upheld the extension order of 24 May 2013.
On 6 August 2013 the Zamoskvoretskiy District Court of Moscow refused to examine the applicant’s request for a review of his continued detention. On 23 August 2013 the same court refused to consider an appeal against the decision of 6 August 2013.
(b) Conditions in the detention facility, in the courtroom and during transfer
The applicant was detained in the detention facility IZ-77/2 in Moscow. He claims the conditions of detention had been poor. He referred to cases against Russia in which the Court had previously found a breach of Article 3 as regards the conditions of detention in IZ-77/2.
The applicant alleges that during the trial he and other 11 defendants are crumped in a small room separated by a plastic partition from the rest of the courtroom. The room lacks space, ventilation and is virtually soundproof, effectively preventing him from participating in the proceedings. The bench has no backrest. The lack of space makes it impossible to have documents or to consult one’s counsel during the hearing.
According to the applicant, the convoy room (the “box”) where he waits before and after the hearing is too small, poorly equipped, lacks ventilation and light. The applicant cannot use his glasses in the convoy room. During the personal search conducted in the convoy room the applicant is required to strip naked and to perform sit-ups.
The applicant also alleges that he is transported between the detention facility and the courtroom in the overcrowded vans with lacking ventilation. The transfer takes about three hours in the morning and up to five hours in the evening, which deprives him of sleep and hot meals. There is no possibility to use toilet during the transfer.
4. The application of Mr Zimin (no. 63686/13)
(a) The applicant’s arrest and pre-trial detention
At the time of his arrest the applicant was a fourth-year student of the Russian State Humanities University, the faculty of history, political studies and law.
He claims that on 6 May 2012 he arrived at Bolotnaya Square to take part in the demonstration. He denies having taken part in any clashes with the police or having caused disorder.
Until 8 June 2013 the applicant continued to study at the university while living at his usual address. On the latter date the applicant was detained on remand on charges of having participated in mass disorders and of having used violence against the police during the demonstration of 6 May 2012.
On 9 June 2013 the Basmannyy District Court of Moscow examined the request to detain the applicant pending criminal investigation. It found that there had been sufficient reasons to believe that the applicant was likely to abscond, to continue his criminal activity, to influence witnesses, to destroy evidence, or to otherwise obstruct the course of justice. It noted that the applicant had not provided sufficient grounds for his release.
On 18 June 2012 charges were brought against the applicant for having participated in mass disorders, aggravated by violence, and for having committed an act of violence against an official. In particular, he was accused of having thrown three chunks of tarmac in the direction of the policemen and hit a policeman causing a fracture of his finger.
On 16 July 2012 the Moscow City Court upheld the detention order of 9 June 2012.
On 6 August 2012 the Basmannyy District Court of Moscow examined the investigator’s request to extend the term of the applicant’s detention by two months and 29 days. The applicant requested to select another measure of restraint pending trial, such as house arrest, or recognisance not to leave Moscow, or bail, or personal guarantees. On the same day the court found that the circumstances that had justified the detention order had not changed and extended the applicant’s detention until 6 November 2012.
On 12 September 2012 the Moscow City Court upheld the extension order of 6 August 2012.
On 30 October 2012 the Basmannyy District Court granted another extension of the applicant’s detention, until 6 March 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 20 November 2012 the charges against the applicant were modified to specify the circumstances of the dispersal of the demonstration on 6 May 2012 and to reiterate the accusation that the applicant had thrown the chunks of tarmac in the direction of the policemen at least three times, causing the injury. It also stated that he had attempted to break through the police cordon.
On 1 March 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 8 June 2013, essentially on the same grounds and having noted that the circumstances that had justified the detention order had not changed.
On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for determination of criminal charges.
On 6 June 2013 the latter court granted another extension of the applicant’s detention, until 24 November 2013. This decision concerned all 12 defendants in the case. Having rejected the applicant’s request for another measure of restraint, the court held that no other measure could secure the course of justice in this case.
On 2 July 2013 the Moscow City Court upheld this extension order.
On 6 August 2013 the Zamoskvoretskiy District Court of Moscow refused to examine the applicant’s request for a review of his continued detention. On 23 August 2013 the same court refused to consider an appeal against the decision of 6 August 2013.
(b) Conditions in the detention facility, in the courtroom and during transfer
The applicant was detained in the detention facility IZ-77/5 in Moscow. He claims that the conditions in the facility had been poor.
The applicant alleges that during the trial he and other 11 defendants are crumped in a small room separated by a plastic partition from the rest of the courtroom. The room lacks space, ventilation and is virtually soundproof, effectively preventing him from participating in the proceedings. The bench has no backrest. The lack of space makes it impossible to have documents or to consult one’s counsel during the hearing.
According to the applicant, the convoy room (the “box”) where he waits before and after the hearing is too small, poorly equipped, lacks ventilation and light. The applicant cannot use his glasses in the convoy room. During the personal search conducted in the convoy room the applicant is required to strip naked and to perform sit-ups.
The applicant also alleges that he is transported between the detention facility and the courtroom in the overcrowded vans with lacking ventilation. The transfer takes about three hours in the morning and up to five hours in the evening, which deprives him of sleep and hot meals. There is no possibility to use toilet during the transfer.
COMPLAINTS
All applicants complain under Article 5 § 1 of the Convention that their pre-trial detention was not based on a “reasonable suspicion” that they had committed a criminal offence.
They further complain that their detention on remand was not justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention.
In addition to that, the applicants have made the following individual complaints:
Mr Lutskevich (no. 2613/13), Mr Polikhovich (no. 62630/13) and Mr Zimin (no. 63686/13)
The applicants complain under Article 3 of the Convention about the allegedly poor conditions of the pre-trial detention in IZ-77/2 and IZ-77/5 in Moscow, the allegedly poor conditions in the courtroom and during the prison transfer.
Mr Lutskevich
The applicant also alleges that he had been beaten up by the police during the dispersal of the rally on 6 May 2012 and that there has been no effective investigation following his complaint about it. These complaints fall to be examined under Article 3 of the Convention.
Mr Gushchin (no. 53390/13)
The applicant also complains under Article 6 of the Convention about various violations of fair trial guarantees in the criminal proceedings against him.
QUESTIONS TO THE PARTIES
I. QUESTIONS RELATING TO ALL APPLICANTS
1. In respect of each of the applicants, the Government are invited to provide an update on the progress of the applicant’s criminal case and on the preventive measures currently applied to him (pre-trial detention or other). If the applicant’s detention was extended after the date of the applicant’s last letter to the Court, the Government are invited to indicate the overall length of the detention and the reasons for the extension, and to produce copies of the relevant detention orders and judicial decisions.
2. In the proceedings in which detention was imposed or extended (remand proceedings), did the courts satisfy themselves that there existed a “reasonable suspicion” against the applicants, as required by Article 5 § 1 (c) of the Convention? In particular, in the remand proceedings did the courts assess evidence showing the existence of such “reasonable suspicion” (see Khudoyorov v. Russia, no. 6847/02, § 180, 8 November 2005, and Shcheglyuk v. Russia, no. 7649/02, § 43, 14 December 2006)?
3. Having regard to the reasons expressly relied on by the domestic courts in the detention orders (see, for example, Bykov v. Russia [GC], no. 4378/02, § 66, 10 March 2009, and Savenkova v. Russia, no. 30930/02, §§ 85 and 87, 4 March 2010), was the applicants’ detention on remand justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention in conjunction with Article 5 § 1 (c) thereof? In particular:Did the courts respect the “presumption in favour of release” (in particular, insofar as the distribution of the burden of proof was concerned (see Vlasov v. Russia, no. 78146/01, § 108, 12 June 2008, and Moiseyev v. Russia, no. 62936/00, § 154, 9 October 2008)?Did the courts assess specific factual circumstances demonstrating the existence of the risks allegedly posed by the applicants (see, for example, Panchenko v. Russia, no. 45100/98, § 107, 8 February 2005; Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006; Mishketkul and Others v. Russia, no. 36911/02, §§ 57-59, 24 May 2007; Gusev v. Russia, no. 67542/01, §§ 80-82, 15 May 2008; Sizov v. Russia, no. 33123/08, § 53, 15 March 2011; and Romanova v. Russia, no. 23215/02, §§ 127-133, 11 October 2011)?Did the courts examine relevant evidence in order to establish the existence of those facts (see, for example, Aleksandr Makarov v. Russia, no. 15217/07, §§ 125–27, 12 March 2009, and Chumakov v. Russia, no. 41794/04, § 162, 24 April 2012)?Did the courts consider the possibility of applying less intrusive preventive measures to the applicants, such as bail, house arrest, electronic surveillance, personal sureties and so on (see, for example, Pshevecherskiy v. Russia, no. 28957/02, §§ 69-71, 24 May 2007; Tsarkov v. Russia, no. 16854/03, § 70, 16 July 2009; Miminoshvili v. Russia, no. 20197/03, § 92, 28 June 2011; and Fedorenko v. Russia, no. 39602/05, § 71, 20 September 2011; see also the ruling of 22 October 2009 by the Supreme Court of the Russian Federation)?Did the courts have due regard to the changing situation of the defendants and the evolving needs of the proper conduct of the proceedings when extending the detention (see, for example, Aleksanyan v. Russia, no. 46468/06, § 191, 22 December 2008; Sizov v. Russia, cited above; and Sokurenko v. Russia, no. 33619/04, § 87, 10 January 2012)?
4. Did the authorities display “special diligence” in the conduct of the proceedings against the applicants, as required by Article 5 § 3 of the Convention? In particular, did the courts assess specific procedural actions which needed to be taken during the investigation and the trial, and the reasons why those actions had not been taken earlier or could not have been taken more promptly (see Valeriy Samoylov v. Russia, no. 57541/09, § 123, 24 January 2012, and Syngayevskiy v. Russia, no. 17628/03, §§ 82-86, 27 March 2012)?
II. QUESTIONS RELATING TO INDIVIDUAL APPLICANTS
Mr Lutskevich, Mr Polikhovich and Mr Zimin
(i) Were the conditions of the applicants’ detention in the detention facilities IZ-77/5 and IZ-77/2 in Moscow compatible with Article 3 of the Convention? The Government are requested to comment on all aspects of the conditions of detention. The Government are requested to produce documentary evidence, including population registers, floor plans, day planning, colour photographs of the sanitary facilities, etc., as well as reports from supervising prosecutors concerning the conditions of detention in each facility.
(ii) Were the conditions of transport of the applicants from the detention facility to the courthouse and back compatible with Article 3 of the Convention?
(iii) Were the conditions of the applicants’ detention during the hearing at the Moscow City Court compatible with Article 3 of the Convention? The Government are requested to comment on allegations made by the applicants, in particular as regards the convoy room and the hearing room of the courthouse.
Mr Lutskevich
(iv) Has Mr Lutskevich been subjected to ill-treatment during the dispersal of the demonstration on 6 May 2012, in breach of Article 3 of the Convention?
(v) Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? The Government are requested to provide information and relevant documents concerning the follow-up of the complaint by Mr Lutskevich alleging that he had been beaten by the police dispersing the demonstration.
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Represented by
6312/13
11/01/2013
Denis Aleksandrovich LUTSKEVICH
11/04/1992
Moscow
Dmitriy Vladimirovich AGRANOVSKIY
53390/13
05/07/2013
Ilya Vladimirovich GUSHCHIN
22/08/1988
Khimki, the Moscow Region
62630/13
24/09/2013
Aleksey Alekseyevich POLIKHOVICH
29/08/1990
Moscow
Dmitriy Vladimirovich AGRANOVSKIY
63686/13
01/10/2013
Stepan Yuryevich ZIMIN
18/01/1992
Moscow
Dmitriy Vladimirovich AGRANOVSKIY
Full & Egal Universal Law Academy