Communicated on 15 February 2018
THIRD SECTION
Application no. 49588/12
Andrey Yuryevich TESLENKO
against Russia
and 3 other applications
(see list appended)
SUBJECT MATTER OF THE CASEs
Application no. 49588/12:
The applicant was escorted to a police station and kept there for two hours at night from 29 to 30 November 2011. An administrative-offence record was compiled in the early hours on 30 November 2011. On 23 December 2011 he was given a fine of 1,000 Russian roubles[1] under Article 5.12 of the Code of Administrative Offences (CAO) for unlawful pre-election campaigning. The appeal court upheld the conviction. The courts considered that the applicant had unlawfully stuck flyers (which, in his submission, were drawings printed out on rough paper) on a wall of a block of flats. The courts dismissed his argument that a prohibited campaigning by non-candidates could only be related to material produced by way of “incurring expenses” outside a candidate’s electoral fund while he had not incurred any expense for his flyers. The appeal court stated that defects relating to the escort procedure did not adversely affect the legality of the offence record and the sentence.
Applications nos. 37220/17 and 68554/17:
The applications concern the arrests of the applicant on 5 May and 9 November 2016 and two sets of proceedings against him under Article 20.2 § 5 of the CAO in relation to the violation of the Public Events Act.
Application no. 46358/17:
At 3.25 p.m. on 27 November 2016 the applicant was arrested in the Torfyanka park in Moscow near an ongoing protest against the construction of a church. According to him, he was passing by and merely shouted “Begone from our park”. He was released at 10.25 a.m. on 29 November 2016. On 1 December 2016 he was sentenced to a small fine under the CAO for minor hooliganism on account of (unspecified) obscene utterances; his arguments relating to the arrest and pre-trial detention were not dealt with.
Common QUESTIONS tO THE PARTIES
1.1. Has each applicant complied with the six-month rule and the exhaustion requirement under Article 35 § 1 of the Convention as regards his complaint under Article 5 § 1 about the administrative escorting and/or administrative arrest (административное доставление и административное задержание)?
Taking into account whether the above pre-trial deprivation of liberty was related to (i) an offence, which was or was not punishable by the sentence of administrative detention, and (ii) each applicant was finally convicted of this offence, did each applicant have any prospect of success in:
(a) raising the related matters during the trial and/or in the appeal proceedings; and/or
(b) seeking judicial review under Chapter 25 of the Code of Civil Procedure or under the Code of Administrative Procedure; and/or
(c) obtaining adequate monetary compensation under:
- the special rules of Article 1070 § 1 and Article 1100 of the Civil Code; or
- the general rules of tort liability under Article 1070 § 2 in conjunction with Article 1069 of the Civil Code (compare Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 113-14 and 229, 10 January 2012; also compare with the jurisprudence of the Russian Constitutional Court: Ruling no. 9-P of 16 June 2009; Decision no. 1049-O of 2 July 2013; Ruling no. 8-P of 17 March 2017; Ruling no. 25-P of 17 November 2016 (section 3)); or
- Articles 1069 and 1100 read with Article 16.1 of the Civil Code; and/or
(d) seeking institution of criminal proceedings, for instance, under Articles 127, 286 or 301 of the Criminal Code (compare Leonid Petrov v. Russia, no. 52783/08, §§ 49-50, 11 October 2016; Aleksandr Sokolov v. Russia, no. 20364/05, § 66, 4 November 2010; Aleksandr Andreyev v. Russia, no. 2281/06, §§ 34-45 and 47-51, 23 February 2016; and Smirnova v. Russia (dec.), no. 37267/04, 8 July 2014)?
The respondent Government are invited to submit examples of domestic judgments (preferably, issued by the Russian Supreme Court or Constitutional Court) concerning the matters mentioned above, inter alia, the prospects of success and adequacy of monetary awards, during the relevant period(s) of time.
1.2. Was each applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?
2. Was Article 13 of the Convention applicable in conjunction with Article 5 § 1 in respect of administrative escorting and/or administrative arrest (see Aleksandra Dmitriyeva v. Russia, no. 9390/05, §§ 114-15, 3 November 2011, and Iustin Robertino Micu v. Romania, no. 41040/11, §§ 109-11, 13 January 2015)? If yes, has there been a violation of Article 13 of the Convention in conjunction with Article 5 § 1 as regards administrative escorting or administrative arrest?
3. Was there a violation of Article 10 of the Convention on account of the administrative escorting/administrative arrest and prosecution against each applicant? In particular:
(a) Was the interference “prescribed by law” and “necessary in a democratic society” (see Novikova and Others v. Russia, nos. 25501/07 and 4 others, §§ 222-25, 26 April 2016)?
(b) Did the domestic authorities adduce relevant and sufficient reasons for the interference and base their conclusions on an acceptable assessment of the facts and the applicable standards under Article 10 of the Convention (for the approach, see Terentyev v. Russia, no. 25147/09, §§ 20-24, 26 January 2017), also having regard to the requirements imposed by the Plenary Supreme Court of Russia in Ruling No. 21 of 27 June 2013 (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, § 359, 7 February 2017)?
ADDITIONAL CASE-SPECIFIC QUESTIONS
Applications nos. 37220/17 and 68554/17:
4.1. As to the first case (judgment of 1 November 2016 as upheld on appeal on 12 January 2017), did the applicant have a fair hearing as required by Article 6 § 1 of the Convention? In particular, having regard to Article 6 § 3 (d), was he afforded an adequate opportunity to contest the adverse evidence, in particular by way of examining police officers Ku. and Lo.?
4.2. Was the requirement of objective impartiality under Article 6 § 1 of the Convention violated on account of the lack of a prosecuting party at court hearings in both CAO cases (see Karelin v. Russia, no. 926/08, 20 September 2016)?
5. Was there a violation of Article 11 of the Convention, too?
Application no. 46358/17:
6. In so far as Article 10 of the Convention is concerned and regard being had to the specific procedural grievances, was the decision-making process leading to the sentence fair and such as to afford due respect to the interests safeguarded to the individual by the Convention (see, as a recent authority, Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 133, ECHR 2016)?
ANNEX
No.
Application no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
49588/12
15/07/2012
Andrey Yuryevich TESLENKO
23/06/1981
Hudson
37220/17
11/05/2017
Igor Alekseyevich KLOCHKOV
23/04/1972
Balashikha
Nikolay Sergeyevich ZBOROSHENKO
46358/17
22/06/2017
Vadim Pavlovich OZHOGIN
05/05/1994
Moscow
Darya Mikhaylovna BAKHAREVA
68554/17
04/09/2017
Igor Alekseyevich KLOCHKOV
23/04/1972
Balashikha
Nikolay Sergeyevich ZBOROSHENKO
[1] 11 euros
Full & Egal Universal Law Academy