Communicated on 15 February 2018
THIRD SECTION
Application no. 72316/17
Leonid Mikhaylovich VOLKOV against Russia
and 6 other applications
(see list appended)
SUBJECT MATTER OF THE CASEs
On 2 March 2017 the Anti-Corruption Foundation (ACF), a Moscow‑based not-for-profit organisation, published a video alleging corruption on the part of the Russian Prime Minister. Mr A. Navalnyy notified the Moscow government of the intention to hold a march and a demonstration on 26 March 2017. On 16 March 2017 the Moscow government replied that a march would obstruct traffic or otherwise impinge upon others’ rights or interests and that the preferred venue was too small to accommodate a large demonstration. On 26 March 2017 similar demonstrations were held in many Russian towns. The first applicant was presenting a live broadcast at the Navalnyy.Live Youtube channel from the ACF office in relation to the ongoing public events when the police arrived at the ACF’s office in view of a bomb alert they had received. The applicants were arrested and convicted of non-compliance with, including by way of resistance to, a lawful order by a police officer. The first applicant was sentenced to ten days of administrative detention; the other applicants were sentenced to seven days of administrative detention.
Common QUESTIONS tO THE PARTIES
1.1. Have the applicants complied with the six-months rule under Article 35 § 1 of the Convention for their complaint under Article 5 § 1 of the Convention about the deprivation of liberty on 26 and 27 March 2017 (administrative escorting and administrative arrest)? In particular, noting that (i) this deprivation of liberty was related to an offence, which was punishable by the penalty of administrative detention (административный арест) and (ii) that the applicants were convicted of this offence, did they have any prospect of success in raising the related matters during their own trials, in the appeal or further review proceedings?
1.2. Was each applicant deprived of his or her liberty in breach of Article 5 § 1 of the Convention?
ADDITIONAL CASE-SPECIFIC qUESTIONS tO THE PARTIES
As to applications nos. 72316/17, 72319/17, 72365/17, 72366/17 and 72370/17:
2. Was the requirement of objective impartiality under Article 6 § 1 of the Convention violated in the absence of a prosecuting party at the trial hearings (see Karelin v. Russia, no. 926/08, 20 September 2016)?
3. Did the absence of suspensive effect of an appeal against the sentence of administrative detention undermine each applicant’s right of appeal to have his or her conviction or sentence reviewed, in breach of Article 2 of Protocol No. 7 to the Convention (compare Shvydka v. Ukraine, no. 17888/12, §§ 48-55, 30 October 2014)?
As to application no. 79376/17:
4.1. Did the applicant have a fair hearing as required by Article 6 § 1 of the Convention (compare Frumkin v. Russia, no. 74568/12, §§ 165-66, ECHR 2016 (extracts))? In particular:
- Was he afforded a reasonable opportunity to present his case and this under conditions that did not place him at a substantial disadvantage vis‑à‑vis his opponent (if any)? In particular, was he afforded a reasonable opportunity to contest the adverse evidence and to adduce his own evidence, for instance, by way of examining the authors of any adverse written testimonies (Article 6 § 3(d)) or by adducing in evidence a video recording? Was the defence able to obtain this recording by themselves and, if not, was the court’s refusal to assist the defence in requiring submission of such evidence in breach of Article 6 of the Convention?
- Having regard to his not-guilty plea and his denial of the factual accusations, was the applicant proven guilty according to law on the strength of the adverse evidence, which was not manifestly insufficient for rebutting the presumption of innocence? In particular:
- Was it appropriate to rely on the offence record and the information it contained as evidence confirming the defendant’s guilt?
- What was the probative evidentiary value of the escorting record and the arrest record or other similar documents compiled by the officials or authorities at the origin of the prosecution against the defendant?
- Were the pre-trial reports (untested at the trial) made by officers Sa. and Zh. sufficient to dispel any doubts that might be in terms of Article 6 § 2 of the Convention? What were the precise contents of those reports and how were they assessed in the trial or appeal judgments in terms of confirming elements of the corpus delicti (i.e. the defendant’s refusal to comply with the repeated orders from those/other officers to leave the building)?
4.2. With reference to the above considerations, was there a violation of Article 6 § 2 of the Convention (compare with Telfner v. Austria, no. 33501/96, §§ 18-20, 20 March 2001, and Frumkin, cited above, § 166)?
As to application no. 72316/17:
5. Was there an “interference” by a public authority with Mr Volkov’s right to freedom of expression, namely his freedom to impart information and ideas (compare Ibrahimov and Others v. Azerbaijan, nos. 69234/11 and 2 others, §§ 70-73, 11 February 2016)? In particular, was it ascertained in the domestic proceedings that the police intervention had had an actual and sufficient factual basis on account of a risk of explosion or fire; that a specific order given to the applicant (and that he had failed to comply with) was lawful under Russian law? Did the police act in compliance with the relevant procedures such as applicable for the evacuation in circumstances relating to bomb alerts or fire alarms?
If there was an “interference” by a public authority:
- Was this interference “prescribed by law” and “necessary in a democratic society” under Article 10 of the Convention?
- Did the domestic authorities adduce relevant and sufficient reasons regarding the existence of the interference and justification for it, and base their conclusions on an acceptable assessment of the facts (see Makhmudov v. Russia, no. 35082/04, §§ 67-72, 26 July 2007, and 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)?
ANNEX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
72316/17
30/09/2017
Leonid Mikhaylovich VOLKOV
10/11/1980
Moscow
Konstantin Ilyich TEREKHOV
72319/17
Konstantin Aleksandrovich SHIROKOV
13/01/1990
Moscow
72365/17
Oksana Viktorovna BAULINA
01/11/1979
Vladimir
72366/17
Anna Nikolayevna REVONENKO
09/03/1994
Vladimir
72370/17
Anton Sergeyevich GLEMBO
21/08/1989
Moscow
71779/17
27/09/2017
Yekaterina Igorevna KENAREVA
13/03/1988
Moscow
Kamalia MEHTIYEVA
79376/17
15/11/2017
Vladislav Sergeyevich MOSIN
09/07/1988
Omsk
Full & Egal Universal Law Academy