Communicated on 4 March 2019
THIRD SECTION
Application no. 18965/16
Petr Andreyevich PAVLENSKIY
against Russia
lodged on 1 April 2016
STATEMENT OF FACTS
The applicant, Mr Petr Andreyevich Pavlenskiy, is a Russian national, who was born in 1984. At the material time he lived in St Petersburg. He is represented before the Court by Ms I. Khrunova, a lawyer practising in Kazan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Art action “Threat”
The applicant is a performance artist and political activist.
At the material time criminal charges of vandalism were pending against the applicant in St Petersburg for the art action of 23 February 2014. On 3 October 2014 the applicant had been released from pre-trial detention under an undertaking not to leave his place of residence in St Petersburg.
In the beginning of November 2015 the applicant invited Mr R., a journalist previously known to him, to come to a café at Lubyanka Square in Moscow at 1 a.m. on 9 November 2015 implying, without divulging any details, that a happening would take place. Later Mr R. shared the information with Ms B., a fellow journalist.
At 1 a.m. on 9 November 2015 Mr R. and Ms B. arrived at the café at Lubyanka Square. They briefly saw the applicant leaving it.
At 1.15 a.m. on 9 November 2015 the applicant approached the Federal Security Service (“the FSB”) headquarters at the address 1 Myasnitskaya Street near Lubyanka Square (“the Lubyanka building”). He doused its main entrance door in a mixture of petrol and kerosene and set it on fire. After that he stood motionless, his back to the flaming door, holding the petrol canister in hands. Moments later a security officer jumped on him and pushed him on the ground. The applicant was then apprehended and brought to a police station.
Mr R. and Ms B. who had approached the scene of the incident to report on it were also pushed on the ground and apprehended despite their attempts to explain that they were members of the press.
The applicant later named the action “Threat” («Угроза»). According to him, the purpose of the action was to demonstrate his repugnance at the FSB and the methods they employ to keep Russia’s 146 million population under control. The following statement was published online together with the video recording of the action a few hours after it:
“The flaming door of the Lubyanka [building] is a gauntlet that society throws in the face of a terrorism threat. The Federal Security Service acts using the method of perpetual terror and holds the power over 146 million people. Fear transforms free people in a glued bulk of scattered bodies. The threat of unavoidable reprisal is hanging over each of those who find themselves within the reach of external surveillance devices, wiretapping and the borders of passport control [zones]. Military courts eliminate all manifestations of free will.”
B. The applicant’s arrest and pre-trial detention
On 9 November 2015 a police investigator Major S. (“the investigator”) drew a report on arresting a suspect. He also questioned the applicant who exercised his right to remain silent.
On 10 November 2015 the investigator requested the Taganskiy District Court of Moscow (“the Taganskiy Court”) to order the applicant’s placement in custody for the reason that the applicant had left St Petersburg in breach of the terms of an undertaking not to leave the place of residence of 3 October 2014 and thus had absconded.
The applicant’s defence objected to the investigator’s application arguing that the Threat action, an act of the applicant’s artistic expression, had not put anyone in danger as it had intentionally been construed to take place in the middle of the night, and suggested alternative measures of restraint including house arrest and bail.
On the same date the Taganskiy Court ordered the applicant’s placement in custody until 8 December 2015 for the reasons that the applicant held a valid passport and had no official employment, that he had had previous criminal and administrative convictions for disorderly conduct, and that he had absconded in breach of the undertaking of 3 October 2014. The defence’s argument concerning the applicant’s freedom of expression remained unanswered.
On 13 November 2015 the applicant appealed against the detention order.
On 3 December 2015 the Moscow City Court (“the City Court”) upheld the Taganskiy Court’s decision of 10 November 2015 on appeal.
On 4 December 2015 the Taganskiy Court granted the investigator’s request for extension of the applicant’s pre-trial detention lodged on the same date and ordered that the applicant remain in custody until 7 January 2016 for the reason that the circumstances that had warranted his placement in custody had not changed. The applicant appealed against the decision on 7 December 2015.
On 24 December 2015 the Taganskiy Court granted the investigator’s request for extension of the applicant’s pre-trial detention lodged on 23 December 2015 and ordered that the applicant remain in custody until 6 February 2016 for the reason that the circumstances that had warranted his placement in custody had not changed. The applicant appealed against the decision on 28 December 2015.
On 29 December 2015 the City Court upheld the decision of 4 December 2015 on appeal.
On 2 February 2016 the City Court upheld the decision of 24 December 2015 on appeal.
The applicant’s term of pre-trial detention was then prolonged on 3 and 26 February 2016, as well as on 31 March 2016. It is unclear whether these decisions were appealed against.
C. Criminal proceedings against the applicant
On 9 November 2015 the investigator opened an investigation under Article 214 § 2 of the Criminal Code (committing an act of prejudice‑motivated vandalism). The investigator’s decision described the applicant’s actions as follows: “Mr Pavlenskiy, acting out of the motives of ideological hatred and having a criminal intent to commit an act of vandalism, [had] doused the entrance door ... of the FSB building and set it on fire...”
On 16 November 2015 the applicant was charged with a crime under Article 214 § 2 of the Criminal Code. The relevant decision read that the applicant had had a criminal intention to desecrate and damage the Lubyanka building and had “acted mindfully [driven] by the motives of ideological hatred to the federal executive body of the Russian Federation which performs within its scope of powers tasks to ensure security of the Russian Federation...”
Military unit no. 55002 that managed the Lubyanka building was granted the status of a victim of the crime. On 12 November 2015 its representative brought claims as a civil plaintiff for RUB 181,449 in pecuniary damages.
On 7 December 2015 the investigator ordered a “cultural studies’ expert examination” («культурологическая экспертиза») of the damaged door to establish whether it was “an object of cultural heritage”.
According to the expert report of 23 January 2016 drawn by specialists in restoration of art objects, the Lubyanka building was “an identified object of cultural heritage [under the name of] ‘the building of the USSR’s NKVD‑KGB, 1940-47, architect A. Shchusev’ that forms part of the object of cultural heritage ‘Ensemble of administrative buildings of USSR’s OGPU‑NKVD-KGB, late 1800s-1940s, architects N. Proskurin, A. Ivanov, A. Langman, I. Bezrukov, A. Shchusev. Here during the repressions of 1930-50s prominent statesmen and public figures, military commanders, representatives of science and arts were detained’”. The door of the building had been a replica of the original wooden door and had been built in 2008 on the basis of the architect’s original drawings. The cost of its restoration was estimated at 121,386.74 Russian roubles (RUB) (approximately 1,390 euros (EUR)); the overall cost of restoration and repairs of the entrance was estimated at RUB 481,461.83 (approximately EUR 5,520).
On 17 March 2016 the investigator amended the charges against the applicant to Article 243 § 1 of the Criminal Code (destructing or damaging an object of cultural heritage).
On 28 April 2016 the Meshchanskiy District Court of Moscow (“the Meshchanskiy Court”) commenced the trial.
The defence pleaded that the applicant was innocent as his actions were in fact artistic expression. The damaged door had been a replica and thus was of no particular cultural value. The action had specifically been organised at night not to endanger any member of the public.
On 8 June 2016 the Meshchanskiy Court found the applicant guilty under Article 243 § 1 of the Criminal Code and sentenced him to a fine of RUB 1,500,000 (approximately EUR 20,240). Considering the time that the applicant spent in custody between 9 November 2015 and 8 June 2016, the sentence was immediately mitigated to a fine of RUB 500,000 (approximately EUR 6,750). The Meshchanskiy Court also ordered the applicant’s release from custody. Ruling on the civil claims brought by military unit no. 55002, the Meshchanskiy Court ordered that the applicant pay RUB 481,461.83 (approximately EUR 6,500) in pecuniary damages.
The applicant appealed, arguing, in particular, that he could not know that the door had had any cultural significance and thus could not have had a criminal intention to damage an object of cultural heritage, that the burnt door had in fact been a 2008 replica and thus had no cultural significance, and that the Meshchanskiy Court had failed to consider the fact that the applicant was an artist who had sought to pay tribute, by means of artistic expression, to those tortured and killed inside the Lubyanka building.
On 25 October 2016 the City Court upheld the conviction on appeal. As regards the defence’s argument regarding the lack of a criminal intention to damage the object of cultural heritage, it reasoned that “[t]he method of the crime and its means, as well as the behaviour of the guilty party in the analysed situation point at the direction of Mr Pavlenskiy’s intentions at damaging the building.” The defence’s arguments concerning the lack of cultural value of the burnt door and the applicant’s artistic expression remained unanswered.
COMPLAINTS
1. The applicant complains under Article 5 § 4 of the Convention about excessive length of appeal proceedings against the detention order of 10 November 2015 and its extensions of 4 and 24 December 2015.
2. The applicant further complains under Article 10 of the Convention that his arrest and the criminal proceedings instituted against him after the Threat art action amounted to a disproportionate interference with his freedom of expression.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 5 § 4 of the Convention? In particular, were the appeals against the detention order of 10 November 2015 and its extensions of 4 and 24 December 2015 decided “speedily” (see Rehbock v. Slovenia, no. 29462/95, §§ 84-88, ECHR 2000‑XII, and Idalov v. Russia [GC], no. 5826/03, §§ 154-58, 22 May 2012)?
2. Has there been a violation of Article 10 of the Convention? In particular, did the applicant’s arrest and the criminal proceedings against him, respectively, amount to an interference with his right to freedom of expression? In respect of each such instance of interference, was the interference “prescribed by law”? Did it pursue one or more legitimate aims under paragraph 2 of Article 10? Was it “necessary in a democratic society” for the achievement of those aims (see Tatár and Fáber v. Hungary, nos. 26005/08 and 26160/08, §§ 36-42, 12 June 2012; Murat Vural v. Turkey, no. 9540/07, §§ 54-56, 21 October 2014; and Maria Alekhina and Others v. Russia, no. 38004/12, §§ 202-06, 17 July 2018)?
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