Communicated on 12 July 2017
THIRD SECTION
Application no 64928/16
Roman Petrovich ROSLOVTSEV against Russia
and 5 other applications
(see list appended)
STATEMENT OF FACTS
The applicant in all six applications, Mr Roman Petrovich Roslovtsev, is a Russian national who was born in 1979 and lives in Moscow. He is represented before the Court by Mr N. Zboroshenko, a lawyer practising in Moscow.
The applications concern six episodes of arrest and conviction of the applicant for staging a solo demonstration at various locations near the Kremlin in Moscow.
The facts of the cases, as submitted by the applicant, may be summarised as follows.
A. The applicant’s solo demonstrations and administrative-offence proceedings against him
On 24 March 2016 the applicant staged a solo demonstration on Kremlevskaya Embankment, Moscow. On 1, 15 and 20 April, 14 May and 10 June 2016 he staged solo demonstrations at different locations in Red Square, Moscow. In each case he was wearing a rubber mask depicting President Putin. In some cases he was also wearing a T-shirt with a print saying “I am not afraid of 212.1[1]”. In other cases he waved a banner with the same text. In each case he was immediately arrested and charged with administrative offences.
By judgments of 6, 14 and 28 April and 17 June 2016 the Tverskoy District Court of Moscow convicted the applicant of a breach of the established procedure for the conduct of public events committed by a participant, an administrative offence under Article 20.2 § 5 of the Code of Administrative Offences (“the CAO”), and sentenced him to fines of 10,000, 20,000, 15,000 and 20,000 Russian roubles respectively. Relying on the escorting and arrest reports, the reports on the administrative offence and written statements by the arresting police officers, it found that on 24 March and 1, 15 and 20 April 2016 the applicant had participated in public events in Kremlevskaya Embankment and Red Square in the immediate vicinity of the Kremlin – the official residence of the President of the Russian Federation. He had therefore held a public event at a location where public events had been prohibited pursuant to Article 8 of the Public Events Act. In the judgment of 17 June 2016 the District Court noted, in addition, that counsel for the applicant had asked for an adjournment because the applicant had been serving a prison sentence in another case and had not been brought to the hearing. It found that there had been no reason to adjourn the hearing as the applicant had had an opportunity to state his position in writing and his counsel had been present at the hearing. His defence rights had therefore been respected.
By judgments of 16 May and 10 June 2016 the Tverskoy District Court convicted the applicant of repeated breaches of the established procedure for the conduct of public events, an offence under Article 20.2 § 8 of the CAO, and sentenced him to terms of imprisonment of twenty and thirty days respectively. Relying on the escorting and arrest reports, the reports on the administrative offence and written statements by the arresting police officers, it found that on 14 May and 10 June 2016 the applicant had participated in public events on Red Square which was in the immediate vicinity of the Kremlin – the official residence of the President of the Russian Federation – where all public events were prohibited. Given that in November 2015 the applicant had already been convicted of a similar offence, he had committed repeated breaches of the established procedure for the conduct of public events. In the judgment of 10 June 2016 the District Court noted, in addition, that the applicant had applied for legal assistance and refused to testify if unassisted by counsel. It rejected the application, finding that although the applicant had had an opportunity to contact a lawyer after his arrest, no lawyer had been present at the start of the hearing.
In his appeal submissions against each of the above judgments the applicant complained, firstly, that the ban on holding public events in the vicinity of the Kremlin was a disproportionate restriction on the right to freedom of assembly. Secondly, the District Court had not verified whether the exact locations of his solo demonstrations had fallen within the perimeter of the zone in which holding public events had been prohibited. He submitted that public events were regularly held in Red Square, most recently a meeting on 18 March 2016 to celebrate the second anniversary of the annexation of the Crimea by Russia. Thirdly, the applicant complained of the disproportionate severity of the sanctions imposed. He further complained that his arrests had been unlawful. Lastly, he complained that the administrative-offence proceedings had been unfair. In particular, he submitted that the lack of a prosecuting party in the proceedings had breached the requirements of impartiality and adversarial procedure. He further complained that he had not had an opportunity to cross-examine the witnesses against him, namely the arresting police officers, and asked that the police officers be cross-examined at the appeal hearing.
In the appeal submissions against the judgments of 6 and 14 April 2016 the applicant complained, in addition, that he had not been notified of the date and time of the hearings of 6 and 14 April 2016. In both cases he had signed an “undertaking to appear” which had not mentioned the date and time of the hearing. The date and time had been filled in later. The case had therefore been unlawfully examined in his absence and in the absence of his counsel. Moreover his counsel had been denied an opportunity to study the case file.
In the appeal submissions against the judgment of 10 June 2016 the applicant complained, in addition, of a violation of his right to legal assistance. He submitted that his mobile telephone had been taken away from him by the police immediately after the arrest and had not been returned to him until 3 p.m. Given that the hearing had started at 3.45 p.m., he had had insufficient time to organise his legal defence. Although he had contacted his lawyer as soon as he had been able and had asked him to come, the lawyer had been unable to come immediately because he had been at a hearing with another client.
In his appeal submissions against the judgment of 17 June 2016 the applicant complained about his absence from the hearing of 17 June 2016. He had been serving his previous prison sentence and had not been brought to the hearing despite his request.
On 18 May, 16, 20, 24 and 28 June and 28 September 2016, the Moscow City Court upheld the convictions on appeal. It held, in particular, that according to Presidential Decree no. 806 of 29 July 1992 special permission from the President, his Office and his security service was required for holding a public event in the Kremlin or in Red Square. The applicant had therefore held a public event at a location where public events were prohibited. He had moreover been wearing a mask depicting President Putin and had been therefore concealing his face in breach of the established procedure for holding a public event. The City Court further held that the applicable law did not provide for the participation of a public prosecutor in administrative-offence proceedings. The District Court had considered that the evidence in the case file had been sufficient to establish the circumstances of the case and that it had therefore not been necessary to call the police officers to the witness stand. The decision to reject the applicant’s application to cross-examine the police officers had been therefore lawful. The City Court found no violation of the applicant’s right to be present at the hearings of 6 and 14 April 2016. The applicant had signed undertakings to appear which mentioned the date and time of the hearings. There was no reason to believe that the dates and time of the hearings had been added later, as claimed by the applicant, as he had signed the undertakings without mentioning that circumstance or leaving any other comment. Nor had there been a violation of his right to be present at the hearing of 17 June 2016 as he had been duly informed of the date of the hearing and his counsel had attended it. Further, the City Court found no violation of the applicant’s right to legal assistance at the hearing of 10 June 2016. Lastly, the City Court found that each instance of the applicant’s arrest had been lawful. Given that the applicant had participated in public events near the President’s residence and had earlier committed breaches of the procedure for the conduct of public events, it had been impossible to draw up reports on an administrative offence on the spot.
B. Conditions of detention
After his arrest at 1.30 p.m. on 14 May 2016 and charges being brought, the applicant was placed in a cell at Kitay-Gorod police station, where he remained until 10 a.m. on 16 May 2016. The cell measured about 3 sq. m. and housed, at different times, between three and nine inmates. The quality of food was so poor that the applicant could not eat it. No drinking water was provided. Access to the toilet facilities was restricted. The cell was equipped with a narrow metal bench covered by a mattress. The bench was so uncomfortable that the applicant could not sleep.
On 27 June 2016 the applicant complained to the Khoroshevskiy District Court of inhuman conditions of his detention. The proceedings are still pending.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention of the allegedly inhuman conditions of his detention from 14 to 16 May 2016 in Kitay-Gorod police station. He also complains, under Article 13 of the Convention, that he does not have an effective domestic remedy for his complaint in respect of inhuman conditions of detention.
2. The applicant complains, under Article 5 § 1 of the Convention, that his administrative arrests on 24 March, 1, 15 and 20 April, from 14 to 16 May, on 10 June 2016 had been unlawful.
3. The applicant complains, under Article 6 §§ 1 and 3 (c) and (d) of the Convention, that each set of administrative-offence proceedings was unfair. In particular, the lack of a prosecuting party in the proceedings breached the requirements of impartiality and adversarial procedure. In each set of proceedings he was denied an opportunity to cross-examine witnesses against him. He was not informed of the date and time of the hearings of 6 and 14 April 2016 and was not brought to the hearing of 17 June 2016. He was therefore convicted in his absence. He was also denied legal assistance at the hearing of 10 June 2016.
4. The applicant complains, under Article 11 of the Convention, that his arrests and convictions for staging solo demonstrations breached his right to freedom of assembly.
QUESTIONS TO THE PARTIES
1. Were the conditions of the applicant’s detention in Kitay-Gorod police station from 14 to 16 May 2016 compatible with Article 3 of the Convention?
2. Did the applicant have an effective remedy for his complaint in respect of poor conditions of detention, as required by Article 13 of the Convention read in conjunction with Article 3?
3. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, were his arrests and detention on 24 March, 1, 15 and 20 April, from 14 to 16 May and on 10 June 2016 carried out in accordance with a procedure prescribed by law? The parties are requested to provide copies of the escorting and arrest reports for each instance of arrest.
4. For each set of administrative-offence proceedings, did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular,
– Did the lack of a prosecuting party and the allegedly excessively active role of the trial court in all sets of proceedings entail violations of the principles of the equality of arms, adversarial procedure and impartiality under Article 6 § 1 of the Convention (see Karelin v. Russia, no. 926/08, 20 September 2016)?
– In each set of proceedings, was the applicant able to examine witnesses against him, as required by Article 6 § 3 (d) of the Convention?
– Was the applicant notified of the hearings of 6 and 14 April 2016 before the Tverskoy District Court of Moscow in such a way as to have an opportunity to attend? If no, was there a violation of the applicant’s right to an adversarial trial and the right to defend himself in person under Article 6 §§ 1 and 3 (c) of the Convention in respect of these sets of proceedings? The Government are requested to provide documents confirming that the applicant was notified of the date and time of the hearings of 6 and 14 April 2016.
– Did the failure to bring the applicant to the hearing of 17 June 2016 or to adjourn it until his release violate his right to defend himself in person under Article 6 § 3 (c) of the Convention?
– Was the applicant able to defend himself through legal assistance of his own choosing at the hearing of 10 June 2016, as required by Article 6 § 3 (c) of the Convention?
5. Did the interruption of the applicant’s solo demonstrations of 24 March, 1, 15 and 20 April, 14 May and 10 June 2016, his arrests and convictions for administrative offences violate his right to freedom of expression, contrary to Article 10 of the Convention interpreted in the light of Article 11 of the Convention? In particular,
– Is a general ban on holding public events at the locations chosen by the applicant “necessary in a democratic society”? What is the justification for the ban on holding public events at those locations?
– The Government are requested to provide official documents establishing the perimeter of the zone in the vicinity of the Kremlin in which holding public events is prohibited. Are these documents accessible to the public?
– Were the locations chosen by the applicant within that perimeter? The Government are requested to provide a map indicating (i) the perimeter of the zone in the vicinity of the Kremlin in which holding public events is prohibited and (ii) the exact locations of the applicant’s solo demonstrations.
– What is the legitimate aim of prohibiting the use of masks or other accessories covering the face in the case of a solo demonstration? Were the interruption of the applicant’s solo demonstrations, his arrest and conviction for the administrative offence of wearing a mask “necessary in a democratic society”? In particular, when convicting the applicant for wearing a mask depicting President Putin, did the domestic courts assess whether the wearing of the mask by the applicant had constituted an attempt to conceal his identity or a form of expression protected by Article 10 of the Convention?
APPENDIX
No.
Application no.
Lodged on
Dates of the public events and of the relevant District Court and City Court judgments and the sentence imposed
1.
64928/16
28/10/2016
14 May 2016
16 May 2016 District Court
18 May 2016 Regional Court
Twenty days’ imprisonment
2.
71753/16
15/11/2016
10 June 2016
10 June 2016 District Court
16 June 2016 Regional Court
Thirty days’ imprisonment
3.
71781/16
19/11/2016
1 April 2016
14 April 2016 District Court
20 June 2016 Regional Court
RUB 20,000
4.
77411/16
26/11/2016
24 March 2016
6 April 2016 District Court
24 June 2016 Regional Court
RUB 10,000
5.
4776/17
17/12/2016
20 April 2016
28 April 2016 District Court
28 June 2016 Regional Court
RUB 15,000
6.
10000/17
21/01/2017
15 April 2016
17 June 2016 District Court
28 September 2016 Regional Court
RUB 20,000
[1]. Article 212.1 of the Criminal Code which introduced, in July 2014, a new criminal offence: a breach of the established procedure for the conduct of public events committed more than twice within 180 days, punishable by a fine, community work, correctional work, compulsory work, or up to five years’ imprisonment.
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