Communicated on 23 September 2016
THIRD SECTION
Application no 47800/14
Yevgeniy Igorevich SVAROVSKIY against Russia
and 2 other applications
(see the Appendix)
STATEMENT OF FACTS
The applicants are twelve Russian nationals listed in the Appendix. They are represented before the Court by different lawyers, as listed in the Appendix.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On the morning of 24 February 2014 the applicants together with hundreds of others came to the Zamoskvoretskiy District Court of Moscow. They wanted to attend the hearing of the criminal case concerning the mass protests at Bolotnaya Square in Moscow on 6 May 2012. The pronouncement of the judgment was to be resumed at a public hearing that day. However, the court-house was cordoned off by the police and the applicants could not get in. The police officers did not explain the reasons for not allowing the public to enter.
The applicants remained outside among other members of the public aspiring to attend the hearing. A short while later the crowd started chanting slogans such as “Freedom for the 6 May prisoners”, “Freedom for political prisoners” and “Russia without Putin”. At different times the applicants were arrested and escorted to police stations.
Details as regards the proceedings against each applicant are outlined in the Appendix.
B. Relevant domestic law and practice
1. The Public Events Act (Федеральный закон «О собраниях, митингах, демонстрациях, шествиях и пикетированиях») prohibits holding a public event in the vicinity of a court-house (section 8(2)).
2. 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 his or her 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 a 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 forty hours ...”
Article 25.1 Person against whom administrative proceedings have been instituted
“1. A person against whom administrative proceedings have been instituted is entitled to study the case-file material, to make submissions, to adduce evidence, to lodge applications 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 detected 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 or her rights and obligations under this Code explained to him or her, and a 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 forty-eight hours.
3. Persons subject to administrative proceedings concerning offences punishable by, among other administrative sanctions, ‘administrative arrest’ [административное задержание] may be subject to administrative detention for up to forty-eight hours.
4. The term of the administrative detention is calculated from the time when [aperson] escorted in accordance with Article 27.2 is taken [to a police station] ...”
3. 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 of 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 [“the CAO”]. 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 within 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 those 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.
Eleven applicants complain under Articles 10 and 11 of the Convention of the allegedly unlawful and disproportionate measures taken against them as peaceful protesters. One applicant complains under Article 10 of the Convention that these measures interfered with her right to freedom of expression which she enjoyed as a journalist.
All the applicants further complain about their arrest, alleging that it was arbitrary. Three of them also claim that their detention at police stations after their arrest was unlawful.
All the applicants complain, under Article 6 § 1 of the Convention, that the proceedings in which they were convicted of administrative offences 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 points out that the courts based their findings exclusively on the evidence submitted by the police officers. One applicant complains about her and her lawyer’s absence from the first-instance and appeal hearings in the proceedings under Article 20.2 § 5 of the CAO.
Eight applicants complain, under Article 6 § 3 (d) of the Convention, that the courts refused to call prosecution witnesses, specifically the police officers who had arrested them at the gathering.
Two applicants complain, under Article 4 of Protocol No. 7 to the Convention, that being fined firstly in the course of the administrative proceedings under Article 20.2 § 5 of the CAO and then in the course of the administrative proceedings under Article 19.3 § 1 of the CAO amounted to double jeopardy.
COMMON QUESTIONS
1. Was the gathering in front of the Zamoskvoretskiy District Court of Moscow a “public event” in terms of the Public Events Act (Федеральный закон «О собраниях, митингах, демонстрациях, шествиях и пикетированиях»)? Given the character of the gathering and the impossibility of giving notice within the time-limit prescribed by law, was it a spontaneous assembly (see Bukta and Others v. Hungary, no. 25691/04, § 36, ECHR 2007-III, and Eva Molnar v. Hungary, no. 10346/05, §§ 36, 7 January 2009)?
2. Was the gathering in question dispersed because of its proximity to a court-house? If so, how is proximity defined under domestic law?
3. As regards each applicant, has there been an interference with his or her 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, in respect of each applicant?
4. 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 each applicant’s arrest during the public gathering on 24 February 2014?
(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?
5. 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?
CASE SPECIFIC QUESTIONS
Ms Kiryanova, Ms Kokovkina, Mr Vinogradov (no. 67936/14)
1. As regards each applicant, was his or her deprivation of liberty lasting four to five 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 each applicant’s detention?
(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?
Mr Svarovskiy (no. 47800/14)
2. Did the applicant have a fair hearing in the administrative proceedings against him, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the admission and the assessment of evidence by the courts?
Ms Polyakova (no. 68196/14)
3. Did the applicant’s absence from the first-instance and appeal hearings violate her right to a public and oral hearing and/or the principle of the equality of arms and the right to adversarial procedure? In particular, was the defence deprived of an adequate opportunity to examine the prosecution evidence submitted to the court?
4. With regard to the applicant’s allegation that, due to her status as an observer of a public event she should have had the same protection as a journalist, has there been an interference with her freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 of the Convention?
Mr Svarovskiy (no. 47800/14), Ms Andreyeva, Mr Orlov, Mr Garder, Ms Kotova, Mr Nesterov, Mr Vinogradov (no. 67936/14) and Ms Polyakova (no. 68196/14)
5. As regards each applicant, were they able to examine witnesses against them, in particular the police officers who had arrested them, as required by Article 6 § 3 (d) of the Convention?
Ms Kiryanova and Mr Vinogradov (no. 67936/14)
6. With respect to the proceedings which resulted in the judgment of the Zamoskvoretskiy District Court of Moscow of 17 March 2014 (Article 19.3 of the CAO), has Ms Kiryanova been convicted twice for the same offence; that is to say was the above offence the same as the offence for which she had been convicted by a different judgment of the same court of 17 March 2014 (Article 20.2 of the CAO), as prohibited by Article 4 § 1 of Protocol No. 7 to the Convention?
7. With respect to the proceedings which resulted in the judgment of the Zamoskvoretskiy District Court of Moscow of 3 April 2014 (Article 19.3 of the CAO), has Mr Vinogradov been convicted twice for the same offence; that is to say was the above offence the same as the offence for which he had been convicted by a different judgment of the same court of 3 April 2014 (Article 20.2 of the CAO), as prohibited by Article 4 § 1 of Protocol No. 7 to the Convention?
APPENDIX
No.
Application
no. and date of introduction
Applicant name
date of birth
place of residence
nationality
Represented by
Charge and penalty
Final domestic decision details
Particular facts
Complaints
47800/14
19/06/2014
Yevgeniy Igorevich SVAROVSKIY
30/12/1971
Moscow
Russian, American
Anton Alekseyevich
SAVELYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 14/05/2014
The applicant wanted to attend the pronouncement of the judgment in the "Bolotnaya" case, but was not allowed to enter the court-house. While waiting in the crowd in front of the court-house, the applicant was arrested.
Art. 6 § 1 – no fair hearing in administrative proceedings: no prosecuting authority in the trial; the courts based their findings exclusively on the evidence submitted by the police officers.
Art. 6 § 3 (d) – the courts refused to call the police officers who had arrested the applicant.
Art. 10 and 11 – arrest and conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
67936/14
14/10/2014
Zoya Nikolayevna ANDREYEVA
19/12/1989
Moscow
Russian
Kirill Nikolayevich
KOROTEYEV
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 04/06/2014
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. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with the rights to freedom of peaceful assembly and freedom of expression.
Oleg Petrovich ORLOV
04/04/1953
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 12/05/2014
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. 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.
Moteyus Tomasevich CHEPAYTIS
12/11/1979
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 04/06/2014
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.
Mikhail Olegovich GARDER
14/08/1986
Petrozavodsk
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 14/05/2014
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. 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.
Anna Yuryevna GLUKHOVA
05/10/1972
St Petersburg
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 10/06/2014
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 her rights to freedom of peaceful assembly and freedom of expression.
Veronika Anatolyevna KIRYANOVA
11/05/1986
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Article 19.3 § 1 of the CAO Administrative fine RUB 500
Appeal decision Moscow City Court 28/05/2014
Appeal decision Moscow City Court 12/05/2014
Art. 5 § 1 – unlawful detention at the police station for 5 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 her rights to freedom of peaceful assembly and freedom of expression.
Art. 4 Prot. 7 – punished twice for the same conduct.
Mariya Sergeyevna KOKOVKINA
23/12/1979
Moscow
Russian
Article 20.2 § 5 of the CAO Administrative fine RUB 5.000
Article 19.3 § 1 of the CAO Administrative fine RUB 500
Appeal decision Moscow City Court 02/06/2014
Appeal decision Moscow City Court 02/06/2014
Art. 5 § 1 – unlawful detention at the police station for 4 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 her rights to freedom of peaceful assembly and freedom of expression.
Karina Anatolyevna KOTOVA
26/04/1978
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 28/04/2014
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. 10 and 11 – the dispersal of the protest and the applicant’s arrest and administrative conviction was disproportionate interference with her rights to freedom of peaceful assembly and freedom of expression.
Dmitriy Vladislavovich NESTEROV
03/08/1977
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Article 19.3 § 1 of the CAO Administrative fine RUB 500
Appeal decision Moscow City Court 14/04/2014
Appeal decision Moscow City Court 14/04/2014
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 as regards the proceedings under Article 19.3 § 1 of the CAO.
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.
Dmitriy Valeryevich VINOGRADOV
30/11/1983
Moscow
Russian
Article 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Article 19.3 § 1 of the CAO
Administrative fine RUB 500
Appeal decision Moscow City Court 06/06/2014
Appeal decision Moscow City Court 16/06/2014
Art. 5 § 1 – unlawful detention at the police station for 4 hours.
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, as regards both sets of administrative proceedings against the applicant.
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.
Art. 4 Prot. 7 – punished twice for the same conduct.
68196/14
29/09/2014
Tarya Nikolayevna POLYAKOVA
23/12/1985
Moscow
Russian
Nikolay Sergeyevich ZBOROSHENKO
Article 20.2 § 5 of the CAO
Administrative fine RUB 11.000
Article 19.3 § 1 of the CAO
Administrative fine RUB 500
Appeal decision 02/04/2014 Moscow City Court
Appeal decision 08/09/2014 Moscow City Court
The applicant did not participate in the gathering; she was observing it as a member of the United Group of Public Supervision.
Art. 6 § 1 – lack of fair hearing in administrative proceedings: no prosecutor in the trial; absence of the applicant and her lawyer in the first-instance and appeal hearings concerning her prosecution under Article 20.2 § 5 of the CAO.
Art. 6 § 3 (d) – the courts refused to call the police officers who had arrested the applicant in both sets of proceedings.
Art. 10 – the applicant was arrested and prosecuted for fulfilment of public functions as an observer of the public event; this interference with her right to freedom of expression was disproportionate.
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