Communicated on 23 September 2016
THIRD SECTION
Application no. 19126/11
Mikhail Yakovlevich SHNEYDER
against Russia
lodged on 31 January 2011
STATEMENT OF FACTS
The applicant, Mr Mikhail Yakovlevich Shneyder, is a Russian national, who was born in 1948 and lives in Moscow. He is represented before the Court by Ms A.B. Polozova, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 August 2010 the applicant, together with other activists, organised and held a public gathering devoted to the National Flag Day. The gathering had been duly authorised by the city authorities. It took place at the Novyy Arbat Street in Moscow from 11.45 a.m. till 12.45 p.m. with up to 50 participants.
On the same day at 2 p.m. another authorised public gathering, organised by the applicant and other activists, was to take place at the Pushkinskaya Square in Moscow.
After the gathering at the Novyy Arbat Street had ended, the applicant together with other participants was rolling the flags. At some point he saw a group of people who unrolled the Russian flag and proceeded towards the city centre. On its way the group was stopped by the police officers. The applicant decided to find out what was going on. He was headed to the spot when a police officer approached him and asked to proceed to the police bus. The applicant explained that he had to be present at the Pushkinskaya Square as the organiser of another gathering but his explanations were ignored. In the police bus he found out about his arrest but was not aware of the reasons for it.
The applicant was taken to the Taganskiy police station where a report on his administrative arrest was drawn up. He was charged with the administrative offence under Article 19.3 § 1 of the Code of Administrative Offences, namely the refusal to obey a lawful order of a police officer. Around 6 p.m. he was taken to the judicial circuit no. 416 of Moscow where he waited for the examination of his case until 3.30 a.m. However, the hearing was rescheduled to 25 August 2010.
On 26 August 2010 the Justice of the Peace of the 416th Judicial Circuit of the Arbat District of Moscow examined the applicant’s case. The applicant filed a motion to call the police officers who had arrested him and who had drawn up the administrative reports. He also asked to question two defence witnesses who had already been present in the court. The Justice of the Peace questioned all witnesses present at the hearing but rejected the motion about calling the police officer who had arrested the applicant and who failed to appear.
A chief police officer Mr M. testified at the trial that after the authorised gathering at the Novyy Arbat Street its participants had decided to process along the street towards the city centre with the Russian flag. This march had not been duly authorised, and he had repeatedly demanded the participants to stop it and disperse. As they had not obeyed and had continued the march, the police officers had blocked it and had arrested the applicant. Two other police officers who had participated in the applicant’s arrest confirmed Mr M.’s testimony during their questioning.
The Justice of the Peace also examined the police reports on the applicant’s taking to the police station and arrest. Relying on this evidence and the police officers’ testimony, he concluded that the applicant had failed to obey Mr M.’s lawful order given when performing his official duties related to maintaining public order and security, namely to stop participation in the march. The Justice of the Peace dismissed the statements of four defence witnesses who testified that the applicant had not participated in the march. He convicted the applicant as charged and sentenced him to administrative detention for three days.
The applicant appealed to the Presnenskiy District Court of Moscow. He contested the facts as established at first instance and claimed that the Justice of the Peace had accepted only the version of the events put forward by the police while dismissing his evidence. He also alleged that his detention on 22 and 23 August 2010 lasting fourteen hours was unlawful.
On 28 August 2010 the Presnenskiy District Court of Moscow examined his appeal. It upheld the first-instance judgment, reiterating that the applicant had participated in the unauthorised march and had failed to obey the lawful order of Mr M. to stop it. The appellate court dismissed two applicant’s motions to call Mr M., the police officers and two defence witnesses who had already been questioned in the first-instance trial. It also refused to call and question a new defence witness and another police officer who had arrested the applicant. The applicant’s motion to adduce and view the video record of his arrest was also rejected. In addition, the appellate court noted that the applicant’s detention after his taking to the police station did not exceed forty-eight hours, as provided by law.
B. Relevant domestic law
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. Failure 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 and 1,000 Russian roubles (RUB) or by administrative detention of up to fifteen days ...”
Article 25.1 Person against whom administrative proceedings have been instituted
“1. Any person against whom administrative proceedings have been instituted is entitled to study the case-file material, to make submissions, to adduce evidence, to lodge motions and challenges, and to have legal assistance ...”
Article 27.2 Escorting of individuals
“1. The escorting or the 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. Any person 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. Any person 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] being escorted in accordance with Article 27.2 is taken [to the police station] ...”
COMPLAINTS
The applicant complains under Articles 10 and 11 of the Convention about the allegedly unlawful and disproportionate measures taken against him. He also claims that his arrest, taking to the police station and detention after the arrest were unlawful, in violation of Article 5 § 1 of the Convention.
Referring to Article 6 § 1 of the Convention, the applicant claims that the proceedings in which he was convicted of the administrative offence fell short of the guarantees of a fair hearing. He points out, in particular, that the courts based their findings exclusively on the evidence submitted by the police officers and refused to accept additional evidence. The applicant also alleges that the courts accepted only the version of the events put forward by the police while dismissing his statements.
The applicant also complains under Article 6 § 3 (d) of the Convention that the courts refused to call a prosecution witness, namely the police officer who had arrested him after the gathering.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s freedom of peaceful assembly within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 11 § 2 of the Convention?
2. Was the applicant’s arrest on 22 August 2010 and taking to the police station compatible with the requirements of Article 5 § 1 of the Convention? In particular:
(a) What were the legal grounds for the applicant’s arrest and taking to the police station after the gathering on 22 August 2010?
(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?
3. Was the applicant’s deprivation of liberty lasting fourteen hours 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 aim enumerated in Article 5 § 1 of the Convention?
4. 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 this case in the domestic courts, in particular to submit additional evidence or to call defence witnesses?
5. Was the applicant able to examine witnesses against him, in particular the police officer who had arrested him, as required by Article 6 § 3 (d) of the Convention?
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