Communicated on 4 December 2018
THIRD SECTION
Application no. 46724/18
Mariya Viktorovna MAKOVOZOVA
against Russia
lodged on 17 September 2018
SUBJECT MATTER OF THE CASE
In July 2018 the State Duma started to examine a controversial draft law relating to the pension schemes in Russia. In August 2018 A. Navalnyy, a Russian politician, called the Russian citizens to participate in protest rallies to be held on 9 September 2018. Notification in respect of one such rally in Krasnoyarsk was submitted by a Mr P. The town office replied that the planned venue was only suitable for 1,500 people instead of 3,000 as planned by Mr P.; that all the other suitable venues had already been assigned for other public events on that date. At 2.30 p.m. on 6 September 2018 the applicant, head of Navalnyy’s support office in Krasnoyarsk, was taken to the police (as acknowledged in the offence record) and remained deprived of liberty until the closure of the trial in respect of her around midnight. The applicant was sentenced to ten days’ detention because she had not submitted notification of any public event planned for 9 September 2018; this failure was attributable to her because her VKontakte page had had, as of 4 September 2018, a repost from the page of Navalnyy’s support office, the latter page containing information about plans for a public event on 9 September 2018; other posts on that page indicated that the applicant was a reference point for further information or for making donations to Navalnyy’s campaign. On 12 September 2018 the sentence against the applicant was upheld on appeal.
QUESTIONS tO THE PARTIES
1.1. Has the applicant exhausted domestic remedies in respect of her complaint under Article 5 § 1 of the Convention on account of her administrative escorting and deprivation of liberty until the delivery of the trial judgment on 6 September 2018? In particular:
(i) Noting that, as of June 2018, a trial court in a CAO case is required to “ascertain” at the preliminary stage of the trial “compliance with the procedure for compiling [escorting/arrest] record” (section 40 of ruling no. 28 dated 26 June 2018 by the Plenary Supreme Court of Russia), was the applicant required to raise the issue he has raised before this Court under Article 5 § 1 of the Convention in the course of his trial and/or appeal? In particular was the trial or appeal court competent to deal in a sufficient manner with the substance of the legal matters relating to Article 5 § 1 and to afford adequate redress?
and/or
(ii) Was the applicant required to bring a separate case under Chapter 22 of the Code of Administrative Procedure (section 40 in fine of ruling no. 28)? Was this course of action available following his final conviction of the offence (compare with section 7 of ruling no. 2 of 10 February 2009 (in force until September 2016) by the Plenary Supreme Court of Russia concerning a similar procedure)?
1.2. Was there a violation of Article 5 § 1 of the Convention? In particular:
- Was it ascertained (in the offence record or otherwise) that the compiling of the offence and other record was “impossible on the spot”, that there were “exceptional circumstances” justifying the deprivation of liberty or that without escorting the applicant to the police station or without arresting her it was “impossible” “to detect the offence, to establish [her] identity, to ensure proper and timely examination of the case and execution of a resulting court decision” (see section 40 of ruling no. 28)?
- What was the legal basis for retaining the applicant without compiling an arrest record (i) following the compilation of the offence record and then (ii) during the trial?
- Was the applicant subjected to deprivation of liberty with the aim “to prevent [her] committing an offence” (compare with the approach recently adopted by the Court in S., V. and A. v. Denmark [GC], nos. 35553/12, 36678/12 and 36711/12, §§ 93-137, 22 October 2018)? At the time of her escorting to the police station, was she deemed as having already committed an offence under Article 20.2 §§ 1 and 8 of the CAO, given that no event had been held yet? Was the offence considered as “committed” prior to the date on which the unlawful gathering actually occurred? Was her deprivation of liberty prior to or during the trial justified under Article 5 § 1 (b) of the Convention?
2. Were there violations of Articles 10 and 11 of the Convention on account of preventing the applicant from taking part in a public event, her escorting to the police station and the ensuing deprivation of liberty before and pending trial as well as on account of requiring her to serve the sentence of detention, all prior to the date on which the impugned event actually occurred (indeed, as it happened, in formal breach of the PEA)?
3. Was the requirement of objective impartiality under Article 6 § 1 of the Convention violated on account of the lack of a prosecuting party at the trial and appeal hearings and the use of the offence record as evidence proving her guilt (see Karelin v. Russia, no. 926/08, 20 September 2016)?
4. Was Article 2 of Protocol No. 7 to the Convention violated on account of the immediate execution of the sentence of detention and the fact that the appeal against the sentence of detention was examined when the applicant had already served part of this sentence (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 179-91, 10 April 2018)?
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