Communicated on 2 March 2016
THIRD SECTION
Application no. 2695/15
Sergey Stanislavovich UDALTSOV
against Russia
lodged on 13 January 2015
STATEMENT OF FACTS
The applicant, Mr Sergey Stanislavovich Udaltsov, is a Russian national who was born in 1977. He is represented before the Court by Mr D. Agranovskiy and Ms V. Volkova, lawyers practising in Elektrostal, and Ms K. Moskalenko, a lawyer practising in Moscow.
The applicant is a political activist and a member of an opposition movement, “Levyy Front”. In 2012 he organised a political rally, which was held on 6 May 2012 at Bolotnaya Square in Moscow. He is currently serving a prison sentence of four and a half years following his conviction for conspiracy to organise mass disorders during that rally.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The public assembly of 6 May 2012
On 23 April 2012 five individuals, including the applicant, gave notice of a public demonstration to the mayor of Moscow. They intended to hold a march and a meeting involving an estimated 5,000 participants on 6 May 2012 “to protest against abuse and fraud in the course of the elections to the State Duma and of the President of the Russian Federation, and to demand fair elections, respect for human rights, the rule of law and the international obligations of the Russian Federation”.
On 3 May 2012, following negotiations with the organisers of the demonstration, the Moscow Department of Regional Security approved the route from Kaluzhskaya Square to Bolotnaya Square, the meeting venue. The march was to begin at 4 p.m on 6 May 2012 and had to finish by 7.30 p.m. The number of participants was indicated as 5,000.
At 8 p.m. on 4 May 2012 the first deputy head of the Moscow Department of Regional Security held a working meeting with the organisers of the Bolotnaya Square demonstration, at which they discussed security issues.
On 5 May 2012 the Moscow Department of Regional Security asked the Moscow city prosecutor’s office to issue a warning to the organisers against exceeding the notified number of participants and against erecting tents at the meeting venue, an intention that had allegedly been indicated by the demonstration organisers who had attended the working meeting. The Moscow Department of Regional Security also referred to information found on the Internet indicating that the demonstrators would go to Manezhnaya Square after the meeting. On the same day the Tsentralnyy district prosecutor’s office issued the warning in question to two of the organisers, including the applicant.
At about 1.30 p.m. on 6 May 2012 the organisers were allowed into Bolotnaya Square to set up the stage and sound equipment. The police searched the vehicles delivering the equipment and seized three tents. They arrested several people for bringing the tents to the meeting venue.
At the beginning of the march, police officer A.M. met the organisers at Kaluzhskaya Square to clarify any outstanding organisational matters and to have them sign an undertaking to preserve public order during the demonstration. He specifically asked the applicant to ensure that no tents were placed on Bolotnaya Square and that the participants comply with the limits in respect of the place and time allocated for the demonstration. The organisers gave their assurances in respect of those issues and signed the undertaking.
The march began at 4.30 p.m. at Kaluzhskaya Square. It passed along Yakimanka Street peacefully and without disruption. The turnout exceeded expectations, but there is no consensus as to the exact numbers. The official estimate was that there had been 8,000 participants, whereas the organisers considered that there had been about 25,000. The media reported different numbers, some significantly exceeding the above estimates.
At about 5 p.m. the march approached Bolotnaya Square. The leaders found that the layout of the space allocated for the meeting and the placement of the police cordon did not correspond to their expectations. The leaders of the march, including the applicant, announced that they were going on a “sit-down strike” and sat on the ground. According to the official version, the protestors stopped because they intended to break the cordon and to incite disorder. The media reported that the applicant had demanded that the protestors be given air time on Russia’s main television channels, that the presidential inauguration of Mr Putin be cancelled and that new elections be called. The police authorities reportedly replied that the strike was an attempt to incite mass disorder. The crowd around the sit-down protest built up, and after some time it broke through the police cordon, leading to some clashes with the police. Many protestors were arrested.
At 6 p.m., at the request of a police officer, A.M., one of the organisers announced from the stage that the meeting was closed. The police ordered the participants to leave the venue and began dispersing them.
At 6.20 p.m., the applicant climbed onto the stage to address the meeting and shouted:
“Dear friends! Unfortunately we have no proper sound, but we will carry on our action. We are not going away, because our comrades have been arrested; because tomorrow is the coronation of an illegitimate president. We shall begin an indefinite protest action. You agree? We shall not leave until our comrades are released, until the inauguration is cancelled and until we are given air time on the central television channels. You agree? We are the power here! Dear friends, [if] we came out in December [2011] and in March [2012], it was not to put up with stolen elections, ... it was not to see the chief crook and thief on the throne. Today we have no choice: stay here or give the country over to crooks and thieves for another six years. I maintain that we shall not leave today. We shall not leave!”
At this point, several police officers arrested the applicant and took him away.
The dispersal of the meeting continued for at least another hour until the venue was fully cleared of all protestors.
2. Criminal proceedings in the “mass disorder” case
On 6 May 2012 the first deputy head of the Moscow Department of Regional Security drew up a report summarising the security measures taken on that day in Moscow and stating that 656 protestors had been detained. The report stated that it was the applicant, among others, who had provoked the standoff and the breaking of the police cordon and that he had called on the demonstrators to stay at the meeting venue to take part in an indefinite protest action.
On the same day the Investigative Committee of the Russian Federation opened a criminal investigation into the alleged mass disorder and violent acts against the police (offences under Articles 212 § 2 and 318 § 1 of the Criminal Code).
On 28 May 2012 an investigation was also launched into the criminal offence of organising mass disorder (offences under Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.
On 5 October 2012 the NTV television channel showed a film, Anatomy of Protest, Part Two, which featured the applicant and his associates, Mr Razvozzhayev and Mr L., plotting a foreign-backed coup and riots.
On 10 October 2012 the Investigative Committee questioned the applicant on the basis of the allegations made in the film Anatomy of Protest, Part Two.
On 17 October 2012 the applicant was charged with conspiracy to organise mass disorder in various Russian regions (Articles 30 § 1 and 212 § 1 of the Criminal Code).
On 26 October 2012 the applicant was given the status of accused in the criminal case instituted on 28 May 2012.
On 1 January 2013 the Investigative Committee joined the applicant’s criminal case file with the criminal case instituted on 28 May 2012.
On 9 February 2013 the Basmannyy District Court of Moscow ordered the applicant’s house arrest pending the completion of the criminal investigation. On an unspecified date an attachment order was imposed on a car owned by the applicant and his wife and 140,000 Russian roubles (RUB) held in their joint bank account was frozen for the duration of criminal proceedings.
On 25 April 2013 the Moscow City Court examined a case against Mr L. in accelerated proceedings because the defendant had earlier entered into a plea-bargaining agreement. It convicted him of organising mass disorder and imposed a suspended prison sentence of two and a half years.
On 19 June 2013 charges were brought against the applicant.
On an unspecified date the investigator decided to bar Mr Razvozzhayev’s legal counsel, Mr F, from participating in the proceedings because he was to be examined as a witness. Subsequently the court disallowed Mr F’s participation as a witness in this case (see below).
On 4 December 2013 the Prosecutor General’s Office issued an indictment against the applicant, which was submitted to the Moscow City Court for the trial. On 20 December 2013 the court listed the trial for 26 December 2013. On the latter date the court returned the case to the prosecutor’s office for rectification of a number of procedural flaws.
On 16 January 2014 the case was again submitted to the Moscow City Court. According to the applicant, the resubmitted case file did not contain the list of defence witnesses that had previously been annexed to it.
On 6 February 2014 the Moscow City Court listed the trial for 18 February 2014. According to the applicant, from that date and until 24 July 2014 the trial took place in hearing room no. 635 at the Moscow City Court. The hearings were held on four days per week and (including time spent escorting the applicant to the courthouse) lasted for over eight hours every day. The applicant requested a less intensive hearing schedule, but the court refused to amend it.
During the trial the applicant asked to be able to call and examine a number of defence witnesses, but the request in respect of five of them was refused on the grounds that those people had earlier been present in the same proceedings, which the applicant disputed. His request to be permitted to examine ten defendants in related criminal cases, including the first “Bolotnaya” case (see the paragraph below), was dismissed on the ground that they were interested parties.
On 21 February 2014, in parallel criminal proceedings, the Zamoskvoretskiy District Court of Moscow ruled against eight persons who had taken part in clashes with the police during the public assembly of 6 May 2012 (the first “Bolotnaya” case). It found them guilty of participation in mass disorder and of committing violent acts against police officers. They received prison sentences of between two and a half and four years; one person had his sentence suspended. Three of their co-defendants had previously been pardoned under the Amnesty Act and one had had his case disjoined from the main proceedings.
On 12 and 13 March 2014, in the applicant’s criminal case, the Moscow City Court examined Mr L. as a witness.
On 18 March 2014 the Moscow City Court examined police officer A.M. as a witness. When cross-examined by the applicant’s counsel, he refused – on the grounds of confidentiality – to answer a number of questions. The court did not assess the grounds of confidentiality, but warned the applicant’s counsel not to ask questions that might raise such issues.
On 1 April 2014 the applicant was escorted to the courthouse despite having presented a sick leave certificate, which the court dismissed as fabricated. The court called a medical assistant, who authorised the applicant’s participation in the proceedings. When the applicant objected, the court expelled him from the proceedings for ten days and continued the proceedings in his absence.
On 8 April 2014 witness M., an NTV television journalist, testified that the video and audio recordings used in the film Anatomy of Protest, Part Two had been given to him outside his house by an unknown person.
On 17 April 2014 the Moscow City Court examined the film Anatomy of Protest, Part Two as evidence.
On 13 May 2014 the court examined the video and audio recordings received by witness M. from the unidentified individual. The applicant’s objections to the admissibility of that material were dismissed.
On 20 May 2014 the court began to examine Mr F., Mr Razvozzhayev’s former legal counsel, but decided that his testimony and earlier statements were inadmissible because of his previous involvement in the case as counsel.
According to the applicant, during the trial he had had no access to the transcripts of the proceedings, despite requests made by him and his lawyer.
On 18 June 2014 the presiding judge was appointed to the Supreme Court as a judge as of 6 August 2012. He continued to examine the applicant’s case.
On 20 June 2014 the Moscow City Court, acting as an appellate court in the parallel criminal proceedings, upheld the judgment of 21 February 2014 in the first “Bolotnaya” case, having slightly reduced the prison sentences of two defendants.
On 30 June 2014 the Moscow City Court dismissed the applicant’s request to be allowed to call and examine the victims in his case as witnesses.
On 24 July 2014 the Moscow City Court found the applicant and Mr Razvozzhayev guilty of organising mass disorder on 6 May 2012. The judgment contained the following findings:
“The organisation of mass disorder may take the form of incitement and controlling a crowd’s actions, directing it to act in breach of the law, [or] putting forward various demands to the representatives of the authorities. This activity may take different forms, in particular the planning and preparation of such actions; the selection of groups of people to provoke and fuel mass disorder; incitement to commit [such disorder] by filing petitions and creating slogans, making calls and appeals capable of electrifying the crowd and causing it to feel outraged; [and] influencing people’s attitudes by disseminating leaflets, employing the mass media, meetings and various forms of agitation to devise a plan for crowd activity that [channels] people’s moods [and] accumulated grievances [and directly steers] the crowd towards engaging in mass disorder.
... this offence is considered [to have been] committed as soon as at least one of the actions enumerated under Article 212 § 1 of the Criminal Code has been carried out ...
... the criminal offence of organisation of mass disorder is considered [to have been] committed when organisational activity has been carried out, and does not depend on the occurrence or non-occurrence of harmful consequences.
...
It is therefore fully proven that the mass disorder organised by Mr Udaltsov [and others] ... led to the destabilisation of public order and peace in a public place during the conduct of a public event; put a large number of people in danger, including those who had come to fulfil their constitutional right to congregate in peaceful marches and meetings; [and] led to considerable psychological tension in the vicinity of Bolotnaya Square in Moscow, accompanied by violence against the police ... and the destruction of property ...”
The Moscow City Court sentenced the applicant and Mr Razvozzhayev to four and a half years’ imprisonment. The judgment maintained the attachment order in respect of the car owned by the applicant and his wife and their funds until the resolution of any civil lawsuits in respect of the said car and funds. There is no information about any lawsuits.
On 18 August 2014 the Zamoskvoretskiy District Court of Moscow examined the second “Bolotnaya” case, which was similar to the first one, and found four persons guilty of participating in mass disorder and of committing violent acts against police officers during the demonstration on 6 May 2012. They received prison sentences of between two and a half and three and a half years; one of them had his sentence suspended. This judgment was upheld by the Moscow City Court on 27 November 2014.
On 18 March 2015 the Supreme Court of the Russian Federation upheld the judgment of 24 July 2014, with amendments as regards Mr Razvozzhayev. It made no mention of the attached property. The applicant is serving his sentence in correctional colony ИK-3 in the Tambov Region.
B. Relevant domestic law
The Criminal Code of the Russian Federation provides as follows:
Article 212. Mass disorder
“1. The organisation of mass disorder accompanied by violence, riots, arson, destruction of property, use of firearms, explosives and explosive devices, as well by armed resistance to a public official shall be punishable by four to ten years’ deprivation of liberty.
2. Participation in the mass disorder provided for by paragraph 1 of this Article shall be punishable by three to eight years’ deprivation of liberty.
3. The instigation of mass disorder provided for by paragraph 1 of this Article, or the instigation of participation in it, or the instigation of violence against citizens, shall be punishable by restriction of liberty for up to two years, or community work for up to two years, or deprivation of liberty for the same term.”
Article 318. Use of violence against a public official
“1. The use of violence not endangering life or health, or the threat to use such violence, against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of up to 200,000 Russian roubles or the equivalent of the convicted person’s wages for 18 months, or community work for up to five years, or up to five years’ deprivation of liberty ...”
COMPLAINTS
The applicant complains under Article 3 of the Convention about the lack of medical assistance during the house arrest and the excessively intensive schedule of the court hearings.
He also complains under Article 5 §§ 1 and 3 of the Convention about the allegedly unlawful and excessively long house arrest pending trial.
The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him fell short of the guarantees of a fair hearing, with particular reference to the use of evidence given by witness L. who had been convicted of the same offence in the interrelated criminal proceedings. He also alleges a violation of the principles of adversarial proceedings and equality of arms. Furthermore, he complains that in view of the fact that the trial judge was appointed to another judicial post at the Supreme Court but continued to preside over the case, the court did not constitute an independent and impartial tribunal established by law.
Under Article 6 §§ 1 and 3 (d) of the Convention the applicant complains of a violation of his right to obtain the attendance and the examination of witnesses on his behalf under the same conditions as witnesses against him. He refers in particular to the court’s refusal to call and examine the victims and the defendants in related criminal cases, as well as to admit certain witnesses on the grounds of their prior presence in the proceedings. He also cites the refusal to admit Mr F. as a witness. Furthermore, he complains that he was not allowed to put certain questions to the police officers, in particular A.M., who were examined as witnesses.
He also alleges a violation of Article 6 § 3 (b) of the Convention, citing the period in April 2014 when he was precluded from taking part in the court proceedings and the lack of access to the transcripts of the proceedings during the first-instance hearing.
The applicant complains of a violation of his right to freedom of expression and the right to peaceful assembly in relation to the authorised and peaceful political rally on Bolotnaya Square on 6 May 2012. He alleges that he was held liable for the disorders at the site of the rally, which in his view, were attributable to the authorities who disrupted the demonstration and claims that this was unlawful, arbitrary and not necessary in a democratic society, contrary to Article 11 of the Convention.
He further complains under Article 18 of the Convention that his arrest at the meeting venue, his house arrest and his ensuing prosecution were a reprisal for his having expressed views critical of the authorities and were aimed at curtailing his political activity and at discouraging others from taking part in public assemblies organised by the opposition.
Lastly, the applicant alleges a violation of Article 1 of Protocol No. 1 to the Convention, referring to the attachment order imposed on his assets in the criminal proceedings, in particular the car and RUB 140,000 which he co-owned with his wife.
QUESTIONS TO THE PARTIES
1. Having regard to the reasons expressly relied on by the domestic courts in the orders for preventive measures, was the applicant’s placement under house arrest justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention?
2. Having regard to the applicant’s specific allegations in respect of the criminal proceedings, did he receive a fair hearing by an independent and impartial tribunal established by law, in accordance with Article 6 §§ 1 and 3 (b) and (d) of the Convention? The Government are invited to answer, in particular, the following questions:
(i) Given Mr L.’s prior conviction in related criminal proceedings involving plea bargaining and an accelerated procedure, was the use of his testimony in the criminal proceedings against the applicant compatible with the guarantees of Article 6 §§ 1 and 3 of the Convention?
(ii) Was the procedure in which the evidence was admitted compatible with the principles of adversarial proceedings and equality of arms?
(iii) Was the tribunal in the applicant’s case independent, impartial and established by law, as required by Article 6 § 1 of the Convention, given the appointment of the trial judge to another judicial office during the proceedings?
(iv) Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention, given that the trial continued in his absence after he had been precluded by illness from taking part in the court proceedings?
(v) Was the applicant able to examine witnesses against him and to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention?
3. Having regard to the circumstances in which the demonstration on Bolotnaya Square was terminated and dispersed on 6 May 2012, did the applicant’s arrest and his ensuing conviction in criminal proceedings constitute an interference with his 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?
4. Did the same measures constitute 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?
5. Were the measures against the applicant taken for the purpose of undermining the rights to freedom of expression and assembly, in breach of Article 18 of the Convention (see Gusinskiy v. Russia, no. 70276/01, ECHR 2004‑IV)?
6. As regards the attachment order imposed on the applicant’s assets, has the applicant requested, if necessary in separate proceedings, that the assets be returned? Assuming that the applicant has exhausted domestic remedies in respect of this complaint, has there been an interference with the applicant’s peaceful enjoyment of possessions, and if so, was it compatible with guarantees of Article 1 of Protocol No. 1 to the Convention?
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