Communicated on 23 September 2016
THIRD SECTION
Application no 74814/14
Marina Yuryevna ZAVYALOVA against Russia
and 13 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are fourteen Russian nationals listed in the Appendix. Some of them are represented before the Court (see the Appendix).
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On 1 March 2014, after the “Maidan” protest and the subsequent political events in Ukraine, the Council of Federation of the Federal Assembly (the Upper House of the Russian Parliament) approved the President’s request to use armed forces on the territory of Ukraine.
As a response to this decision, on 2 March 2014 a spontaneous rally was held on Manezhnaya Square in Moscow; the rally had not been duly authorised by the city authorities.
According to the report of the Ombudsman’s representative, by 2.30 p.m. around 300 people had gathered on the square. At first the protesters stood silently holding homemade posters “No to war” and “No to intervention in Crimea” as well as white paper doves. At around 3 p.m. the police arrived. Half an hour later, the protesters started to chant “No to war”. The police officers arrested those chanting first, then some of the protesters who were standing by. By 4 p.m. the rally participants had been pushed back to the Hotel “Moscow”, where the arrests continued. According to the Ombudsman’s representative, around 100 people were apprehended by the police.
Details as regards each applicant are stated in the Appendix.
B. Relevant domestic law
1. The relevant provisions of the Code of Administrative Offences of 30 December 2001, as in force at the material time, read as follows:
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 10,000 roubles and 20,000 roubles or compulsory community service for up to 40 hours.”
Article 25.1 “Persons against whom administrative proceedings have been instituted”
“1. Persons 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 escort or 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. Persons 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. Persons 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] escorted in accordance with Article 27.2 is taken [to the police station] ...”
2. 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 by 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. 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 in 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 their 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.
All the applicants complain under Article 11 of the Convention about the allegedly unlawful and disproportionate measures taken against them as peaceful protesters. Nine of them allege violation of Article 10 in this respect. The applicants further complain about their arrest, alleging that it was arbitrary. A number of them also complain under Article 5 § 1 that their detention at police stations after their arrest was unlawful (see the Appendix).
Eleven 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.
Eight applicants, as listed in the Appendix, complain under Article 6 § 3 (d) of the Convention that the courts refused to call prosecution witnesses, namely the police officers who had drawn up the administrative reports or who had arrested them.
common QUESTIONS
1. 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?
2. If so, was that interference prescribed by law and necessary in terms of Article 11 § 2 of the Convention, in respect of each applicant? In particular, given the spontaneous character of the assembly and impossibility to give a notice within the time-limit prescribed by law, was the interference proportionate in the circumstances of the present case (see Bukta and Others v. Hungary, no. 25691/04, §§ 35-37, ECHR 2007‑III, and Eva Molnar v. Hungary, no. 10346/05, §§ 36-38, 7 January 2009)?
3. Was each applicant’s arrest on 2 March 2014 compatible with the requirements of Article 5 § 1 of the Convention? In particular:
(a) What were the legal grounds for the applicant’s arrest during the demonstration on 2 March 2014?
(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?
CASE SPECIFIC QUESTIONS
Applications nos. 74814/14, 3541/15, 5014/15, 5335/15, 7386/15, 7430/15
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 the applicant’s detention?
(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?
Applications nos. 74814/14, 77851/14, 3541/15, 5014/15, 5335/15, 7110/15, 7386/15, 7430/15, 9182/15, 11474/15, 51114/15
2. 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?
Applications nos. 77851/14, 3541/15, 5014/15, 5335/15, 7110/15, 7430/15, 11474/15, 51114/15
3. As regards each applicant, were they able to examine witnesses against them, in particular, the police officers who had drawn up the administrative reports or who had arrested them, as required by Article 6 § 3 (d) of the Convention?
APPENDIX
No.
Application no. and date of introduction
Applicant name
Date of birth
Place of residence
Nationality
Represented by
Charge and penalty
(Russian roubles)
Final domestic decision details
Particular facts
Complaints
74814/14
20/11/2014
Marina Yuryevna ZAVYALOVA
21/03/1985
Moscow
Russian
Ernest Aleksandrovich MEZAK
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 20/05/2014
In the domestic proceedings, as well as in her application denied participating in the rally, chanting and holding the posters.
Art. 5 § 1 – arbitrary arrest during the demonstration and detention for 4 hours.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.
Art. 11 – arrest during the demonstration and conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
77851/14
29/11/2014
Mariya Anatolyevna KOTOVA
12/03/1975
Natick, USA
Russian
Ernest Aleksandrovich MEZAK
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 30/05/2014
Participated in the rally, but did not hold any posters and did not chant.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.
Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the police officers.
Art. 10 and 11 – conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly and the right to freedom of expression.
3541/15
16/12/2014
Darya Nikolayevna VYATKINA
17/01/1986
Omsk
Russian
Ernest Aleksandrovich MEZAK
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 16/06/2014
In the domestic proceedings, as well as in her application denied participation in the rally, insisting that this was a solo picket. According to the applicant, she stood far from the protesters and held a poster “No to war”. She did not chant.
Art. 5 § 1 – arbitrary arrest during the demonstration and detention for 4 hours.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.
Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the police officers.
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 and the right to freedom of expression.
5014/15
30/12/2014
Sergey Safuanovich AKHUNOV
09/09/1967
Moscow
Ukrainian
Ernest Aleksandrovich MEZAK
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 30/06/2014
Participated in the rally, stuck a piece of paper “No to war” to his coat.
Art. 5 § 1 – arbitrary arrest during the demonstration and detention for 5 hours.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.
Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the police officers.
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 and the right to freedom of expression.
5335/15
22/01/2015
Ivan Fedorovich BABITSKIY
17/12/1979
Moscow
Russian
Ernest Aleksandrovich MEZAK
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 22/07/2014
Participated in the rally.
Art. 5 § 1 – arbitrary arrest during the demonstration and detention for 4 hours.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.
Art. 6 § 3 (d) – the appellate court refused to call prosecution witnesses, namely the police officers.
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 and the right to freedom of expression.
7110/15
17/01/2015
Igor Nikolayevich FILYUSHKIN
18/02/1966
Shatura
Russian
Ernest Aleksandrovich MEZAK
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 18/07/2014
Participated in the rally, but did not hold any posters and did not chant.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.
Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the police officers.
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 and the right to freedom of expression.
7386/15
28/01/2015
Aleksey Vladimirovich KULIKOV
30/03/1983
ABS Chaschnikovo
Russian
Ernest Aleksandrovich MEZAK
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 28/07/2014
In the domestic proceedings, as well as in his application denied participating in the rally, chanting and holding the posters.
Art. 5 § 1 – arbitrary arrest during the demonstration and detention for 5 hours.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.
Art. 11 – arrest during the demonstration and conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
7430/15
28/01/2015
Aleksey Fridrikhovich TORGASHEV
19/07/1966
Kalininets
Russian
Ernest Aleksandrovich MEZAK
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 28/07/2014
Participated in the rally, but did not hold any posters and did not chant.
Art. 5 § 1 – arbitrary arrest during the demonstration and detention for 5 hours.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.
Art. 6 § 3 (d) – the first-instance court refused to call prosecution witnesses, namely the police officers.
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 and the right to freedom of expression.
7542/15
26/01/2014
Darya Fedorovna SHTYRKOVA
16/08/1993
Kaluga
Russian
Art. 20.2 § 5 of the CAO
Administrative fine RUB 5.000
Appeal decision Moscow City Court 30/07/2014
Participated in the rally.
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 and the right to freedom of expression.
7687/15
26/01/2015
Anton Alekseyevich LUBNY
08/12/1987
Moscow
Russian
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 28/07/2014
Participated in the rally, intoned slogans “Shame” and “No to war”.
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 and the right to freedom of expression.
9182/15
08/02/2015
Lev Yevgenyevich POKROVSKIY
14/09/1982
Moscow
Russian
Ernest Aleksandrovich MEZAK
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 08/08/2014
Participated in the rally, but did not hold any posters and did not chant.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in both trials.
Art. 11 – conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
11474/15
18/02/2015
Anton Vladimirovich KUZNETSOV
12/06/1983
Nakhabino
Russian
Ernest Aleksandrovich MEZAK
Art. 20.2 § 5 of the CAO
Administrative fine RUB 15.000
Appeal decision Moscow City Court 18/08/2014
Participated in the rally, but did not hold any posters and did not chant.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in both trials.
Art. 6 § 3 (d) – the first-instance court refused to call prosecution witnesses, namely the police officers.
Art. 11 – conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
32827/15
24/06/2015
Ivan Mikhaylovich DIVILKOVSKIY
28/08/1990
Moscow
Russian
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 10/02/2015
Participated in the rally.
Art. 11 – conviction for an administrative offence amounted to unlawful and disproportionate interference with the right to freedom of peaceful assembly.
51114/15
02/10/2015
Kseniya Lvovna MITROKHINA
15/07/1964
Moscow
Russian
Darya Sergeyevna PIGOLEVA
Art. 20.2 § 5 of the CAO
Administrative fine RUB 10.000
Appeal decision Moscow City Court 02/04/2015
In the domestic proceedings, the applicant alleged that she did not participate in a public event; rather it was her solo picket.
Art. 6 § 1 – no fair hearing in administrative proceedings: absence of the prosecutor in the trial.
Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the police officers who had arrested the applicant.
Art. 10 and 11 – arrest following the demonstration and conviction for an administrative offence amounted to unlawful and disproportionate interference with the rights to freedom of peaceful assembly and freedom of expression.
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