Communicated on 29 September 2016
THIRD SECTION
Application no 74602/14
Mikhail Romanovich MAYZULS and Others against Russia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are twelve Russian nationals listed in the Appendix. Some of them are represented before the Court (see the Appendix).
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Public gathering of 24 February 2014 in Moscow
On 24 February 2014 the final hearing in the criminal case concerning the mass disorders at Bolotnaya Square in Moscow on 6 May 2012 took place at the Zamoskvoretskiy District Court of Moscow. Seven participants in those events were sentenced to prison terms of two and a half to four years.
Those criminal proceedings concerning mass disorder were considered by many as driven by political reasons; they attracted a lot of public and media attention.
In the evening of 24 February 2014 a spontaneous public gathering in support of the convicted activists took place at Tverskaya Street in Moscow. The meeting had not been duly authorised by the city authorities. According to the applicants, it was a peaceful protest against the judgment they considered unfair.
At different times eleven applicants were apprehended and taken to police stations. Some estimates suggest that about 430 people were arrested that day in Moscow.
Details as regards each applicant are given in the Appendix.
2. Public gathering of 24 February 2014 in St Petersburg
On 24 February 2014 at 6.45 p.m. a number of people gathered at Malaya Sadovaya Street in St Petersburg to protest against the same judgment of the Zamoskvoretskiy District Court of Moscow. The gathering was advertised on social media. This gathering had not been duly authorised by the city authorities.
Those participating in the gathering held posters “Freedom for Bolotnaya prisoners!”, “Freedom for 6 May prisoners”, “No to political repression!” and others. The police warned the participants through megaphones several times, informing them that the meeting was unauthorised and instructing them to disperse.
Around 7.10 p.m. the participants started to sing and chant slogans. The police officers began apprehending the activists and putting them into police buses. According to the St Petersburg Ombudsman’s report, about 60 people were arrested, including deputies of the city parliament and journalists.
Details as regards Mr Grachev are stated in the Appendix.
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 20.2 Breaches of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets
“5. Breaches by participants in public event of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets ... shall be punishable by an administrative fine of between RUB 10,000 and RUB 20,000 or compulsory community service of up to 40 hours.”
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 submit representations and challenges, and to have legal assistance ...”
Article 27.2 Escorting of individuals
“1. 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 offences 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
The complaints of each of the applicants are set out in the Appendix.
Nine applicants complain under Articles 10 and 11 of the Convention that unlawful and disproportionate measures were taken against them as peaceful protesters. Seven of them further complain under Article 5 § 1 of the Convention that their being apprehended by police officers and detained for three and a half to five and a half hours was arbitrary. Five applicants complain that their arrests were unlawful.
Eleven applicants 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. They point out, in particular, that there was no prosecuting authority; that role was allegedly performed by the judge. One applicant also complains that the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the video record of his arrest and statements of the witness on his behalf (see the Appendix).
Four 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.
COMMON QUESTIONS
Was each applicant’s arrest on 24 February 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 24 February 2014?
(b) Did it pursue any of the aims enumerated in Article 5 § 1 of the Convention?
CASE-SPECIFIC QUESTIONS
Mr Mayzuls, Mr Babitskiy, Mr Nikolskiy, Mr Novoselov, Mr Khukhorev, Mr Yakshin (no. 74602/14); Mr Mzhavanadze (no. 3093/15); Mr Grachev (no. 10028/15); Mr Protasov (no. 10147/15)
1. As regards each applicant (cited above), 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 the impossibility of giving 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)?
Mr Mayzuls, Mr Babitskiy, Mr Nikolskiy, Mr Novoselov, Mr Khukhorev, Mr Yakshin, Mr Shchurov, Mr Skorokhod, Mr Maslov (no. 74602/14); Mr Grachev (no. 10028/15); Mr Protasov (no. 10147/15)
3. As regards each applicant’s trial, did they have a fair hearing by an 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?
Mr Mayzuls, Mr Babitskiy, Mr Nikolskiy, Mr Novoselov, Mr Khukhorev, Mr Yakshin, Mr Maslov (no. 74602/14)
4. As regards each applicant, was his deprivation of liberty lasting three and a half to five and a half 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 of the aims enumerated in Article 5 § 1 of the Convention?
Mr Babitskiy, Mr Shchurov, Mr Skorokhod (no. 74602/14); Mr Grachev (no. 10028/15)
5. As regards each applicant, were they able to examine witnesses against them, in particular the police officers who had arrested them at the public gatherings, as required by Article 6 § 3 (d) of the Convention?
Mr Mzhavanadze (no. 3093/15)
6. Did the applicant have a fair hearing in the administrative proceedings against him, in accordance with Article 6 § 1 of the Convention:
(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) Was the applicant afforded the opportunity to plead his case in the domestic courts, in particular to submit additional evidence or to call defence witnesses?
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
74602/14
16/11/2014
Mikhail Romanovich MAYZULS
09/07/1982
Moscow
Russian
Kirill Nikolayevich
KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine
RUB 10,000
Appeal decision 30/06/2014 Moscow City Court
The applicant participated in the public gathering.
Art. 5 § 1 – unlawful arrest and detention for four hours.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Boris Mikhaylovich NIKOLSKIY
17/10/1970
Moscow
Russian
Kirill Nikolayevich
KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 10,000
Appeal decision 30/05/2014 Moscow City Court
In the domestic proceedings the applicant denied participation in the public gathering.
Art. 5 § 1 – unlawful arrest and detention for five and a half hours.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Vitaliy Vyacheslavovich NOVOSELOV
14/06/1976
Moscow
Russian
Kirill Nikolayevich
KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 10,000
Appeal decision 04/08/2014 Moscow City Court
The applicant participated in the public gathering.
Art. 5 § 1 – unlawful arrest and detention for five and a half hours.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Artem Vladimirovich KHUKHOREV
03/07/1989
Moscow
Russian
Kirill Nikolayevich
KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 10,000
Appeal decision 16/05/2014 Moscow City Court
The applicant participated in the public gathering.
Art. 5 § 1 – unlawful arrest and detention for five and a half hours.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Yevgeniy Romanovich YAKSHIN
14/04/1987
Moscow
Russian
Kirill Nikolayevich
KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 15,000
Appeal decision 30/07/2014 Moscow City Court
The applicant participated in the public gathering.
Art. 5 § 1 – unlawful arrest and detention for five and a half hours.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with his rights to freedom of peaceful assembly and freedom of expression.
Ilya Valeryevich SHCHUROV
23/05/1984
Moscow
Russian
Kirill Nikolayevich
KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 10,000
Appeal decision 10/06/2014 Moscow City Court
The applicant did not participate in the public gathering, he was walking on Tverskaya street.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 6 § 3 (d) – the courts refused to call the police officers who had arrested the applicant.
Andrey Vyacheslavovich SKOROKHOD
13/01/1970
Balashikha
Russian
Kirill Nikolayevich
KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 10,000
Appeal decision 30/07/2014 Moscow City Court
The applicant did not participate in the public gathering, he was waiting for a friend on Tverskaya street.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 6 § 3 (d) – the courts refused to call the police officers who had arrested the applicant.
Petr Valeryevich MASLOV
27/12/1988
Moscow
Russian
Kirill Nikolayevich
KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 15,000
Appeal decision 08/08/2014 Moscow City Court
The applicant did not participate in the public gathering, he came to Tverskaya street to meet his girlfriend.
Art. 5 § 1 – unlawful arrest and detention for five and a half hours.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
3093/15
30/12/2014
Georgiy Tengizovich MZHAVANADZE
21/05/1990
Cherepovets
Russian
Article 19.3 § 1 of the CAO
Administrative fine RUB 1,000
Supervisory decision Supreme Court 15/04/2015
The applicant did not participate in the public gathering, he was observing it.
Art. 6 § 1 – no fair hearing in administrative proceedings: the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the video record of the applicant’s arrest and statements of the witness on his behalf.
Art. 11 – arrest and conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
10028/15
19/02/2015
Daniil Sergeyevich GRACHEV
25/06/1993
St Petersburg
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 20,000
Appeal decision 28/08/2014
St Petersburg City Court
The applicant participated in the public gathering.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 6 § 3 (d) – the courts refused to call the police officers who had arrested the applicant.
Art. 11 – arrest and conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
10147/15
08/02/2015
Pavel Valentinovich PROTASOV
05/06/1965
Moscow
Russian
Kirill Nikolayevich
KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 15,000
Appeal decision 08/08/2014 Moscow City Court
The applicant did not take part in the public gathering.
Art. 5 § 1 – unlawful arrest during the demonstration.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial.
Art. 11 – arrest and conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
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