Communicated on 20 January 2021
Published on 8 February 2021
THIRD SECTION
Application no. 48631/16
Aleksandr Anatolyevich SHELKOVENKOV and Dmitriy Yuryevich KARASEV
against Russia
lodged on 26 May 2016
STATEMENT OF FACTS
1. The applicants, Mr Aleksandr Anatolyevich Shelkovenkov and Mr Dmitriy Yuryevich Karasev, are Russian nationals who were both born in 1995 and live in Moscow and Chelyabinsk, respectively. They are represented before the Court by Mr N. Zboroshenko, a lawyer practising in Moscow.The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. At about 8 a.m. on 2 December 2015 the police arrested the applicants in front of the building of the Basmannyy District Court in Moscow and charged them with a minor disturbance of public order under Article 20.1 of the Code of Administrative Offences. It was alleged that they had used a steel cable and a padlock to block the court doors in protest against the trial of a fellow activist whose case was due to be heard that day.
4. At 4 p.m. the case was submitted for trial before the Meshchanskiy District Court in Moscow. The judge however noted that the statement of facts in the report was illegible; alterations were not identified in the text; the contact details of the accused were missing, and the applicable subsection of Article 20.1 was not mentioned. She ordered that the case be returned to the police.
5. On 3 December 2015 the police resubmitted the charges to the Meshchanskiy District Court. The applicants protested their innocence, they denied locking or blocking the court doors and claimed that they had come to the court building independently of each other. They asked the court to secure the participation of a prosecutor and to obtain the attendance and examination of police officers who had arrested them. As eye-witnesses to the alleged offence whose reports were submitted in evidence, the officers ought to be called to testify in court and held liable in case of perjury.
6. Without calling any witnesses or the prosecutor, the District Court found the applicants guilty as charged in the same-day proceedings. It held that the police reports on the applicants’ arrest and the commission of an administrative offence, the report on the examination of the crime scene, together with written statements by three court bailiffs who had witnessed the applicants’ arrest, were sufficient evidence that the offence had been committed. The District Court sentenced the applicants to two days’ detention. They were released at 8.30 a.m. on 4 December 2015.
7. Throughout their detention in the police station, the applicants were held in a four-square-metre cell. The cell had no furniture, save for wooden benches, which they used for sleeping. The applicants were not given any hot food or drinking water. The police removed the water bottle which friends had passed them. They also removed the first applicant’s glasses despite his high myopia.
8. Counsel for the applicants introduced an appeal, complaining that the trial court had refused to obtain witness evidence and assumed the role of the prosecution in the absence of a prosecutor public. Even assuming that it had correctly established the facts, their characterisation in law was incorrect. Since the applicants’ conduct had not involved obscene speech, harassment of others or destruction of property, the required elements of an offence under Article 20.1 of the CAO had not been made out. The applicants’ detention and custodial sentence had been disproportionate to the extent of alleged disruption of public order. Counsel insisted on the participation of a prosecutor in the appeal proceedings and the examination of the arresting police officers.
9. On 18 and 22 December 2015 the Moscow City Court rejected the appeals in a summary fashion. The hearing was conducted without prosecutor or witnesses.Domestic law
10. Article 20.1(1) of the Code of Administrative Offences defines a minor breach of public order (мелкое хулиганство) as “a breach of public order showing flagrant disrespect for society accompanied by speaking obscenities in public places, abusively harassing others or destroying or damaging the property of others”. It is punishable with an administrative fine of between 500 and 1,000 Russian roubles or up to fifteen days’ administrative detention.
11. Articles 27.2 to 27.5 of the Code of Administrative Offences concerning escorting by the police and administrative detention are quoted in Frumkin v. Russia, no. 74568/12, § 79, 5 January 2016.
COMPLAINTS
12. The applicants complain under Articles 3 and 13 the Convention that their detention in the police station was carried out in inhuman and degrading conditions and that they did not have an effective domestic remedy for that grievance. They also complain under Article 5 of the Convention that it was devoid of a legal basis. Individuals suspected of administrative offences could be escorted to the police station and detained there only if it was impossible to draw up an administrative-offence report on the spot which was not shown to have been the case here. Continuing the detention after the case had been taken to a court but referred back to the police was legally impossible.
13. The applicants complain under Article 6 § 1 of the Convention that, in the absence of a prosecutor, the trial court assumed the role of the prosecution. They also complain under Article 6 § 3 (d) that the courts at two levels of jurisdiction refused their requests to obtain the cross-examination of the police officers who testified against them.
14. The applicants complain under Article 11 of the Convention that they were punished to cause them to abandon campaigning for civil rights.
QUESTIONS TO THE PARTIES
1. Were the conditions of the applicants’ detention in the police station compatible with Article 3 of the Convention (see Fedotov v. Russia, no. 5140/02, §§ 64-70, 25 October 2005)? Did the applicants have an effective remedy required by Article 13 of the Convention for that complaint?
2. Were the applicants’ arrest and detention effected “in accordance with a procedure prescribed by law” as required by Article 5 § 1 of the Convention? In particular,
(a) In so far as Article 27.2 of the Code of Administrative Offences allows the suspected offender to be escorted to a police station only if an administrative-offence report cannot be drawn up at the place where the offence was discovered, has it been shown that it was impossible, in the circumstances of the case, to draw up the report on the spot (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, § 489, 7 February 2017, and Navalnyy and Yashin v. Russia, no. 76204/11, §§ 68 and 93, 4 December 2014)?
(b) Once the administrative-report had been drawn up, were there any “exceptional circumstances” within the meaning of Article 27.3(1) of the Code of Administrative Offences which could have justified the continued detention (see Frumkin v. Russia, no. 74568/12, § 150, 5 January 2016)?
(c) What was the statutory basis for the applicants’ continued detention after the case was not accepted by the District Court and returned to the police?
3. Has there been a violation of the impartiality requirement under Article 6 § 1 of the Convention on account of the absence of the prosecuting party from the proceedings (see Karelin v. Russia, no. 926/08, 20 September 2016)?
4. Was the courts’ refusal to obtain the attendance of the arresting officers and take witness evidence from them under penalty for perjury compatible with the requirements of Article 6 §§ 1 and 3 (d) of the Convention?
5. Given that the applicants denied blocking the court doors, did their escorting to the police station, administrative arrest and conviction constitute interference with their right to freedom of peaceful assembly under Article 11 of the Convention, as interpreted in the light of Article 10 of the Convention (see Kasparov and Others v. Russia, no. 21613/07, §§ 72 and 73, 3 October 2013; Müdür Duman v. Turkey, no. 15450/03, § 30, 6 October 2015; Agit Demir v. Turkey, no. 36475/10, §§ 60-72, 27 February 2018, and İmrek v. Turkey, no. 45975/12, § 29, 10 November 2020)? If so, was that interference prescribed by law and “necessary in a democratic society” within the meaning of the second paragraph of Articles 10 and 11? In particular, could the applicants reasonably foresee that they could be held liable for the offence under Article 20.1(1) of the Code of Administrative Offence even if the specific elements of the offence (obscene speech, harassment of others and damage or destruction of property) have not been made out?
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