In the case of Kasparov and Others v. Russia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre,
President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 10 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
21613/07) against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by nine Russian nationals, Mr Garri Kimovich Kasparov, Mr Aleksey
Valeryevich Tarasov, Mr Nikolay Vladimirovich Kharlamov, Mr Nikolay Viktorovich
Kalashnikov, Mr Andrey Pavlovich Toropov, Mr Aleksandr Viktorovich Stelmakh, Mr
Yuriy Nikolayevich Orel, Mr Vyacheslav Viktorovich Melikhov and Ms Oksana
Anatolyevna Chelysheva (“the applicants”), on 24 May 2007.
The applicants were represented by Ms K. Moskalenko
(the first, the third and the ninth applicants), Ms O. Mikhaylova (the second
applicant), Ms O. Polozova (the fourth applicant) and Ms N. Kotenochkina (the
fifth, sixth, seventh and eighth applicants), lawyers practicing in Moscow. The
Russian Government (“the Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of Human Rights.
The applicants alleged a violation of Articles 10
and 11 of the Convention in that the authorities had prevented them from taking
part in a public assembly in Moscow on 14 April 2007. All except the ninth
applicant also complained of a violation of Article 6 of the Convention in the
ensuing administrative proceedings against them.
On 4 January 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants’ dates of birth and places of
residence are listed below:
(1) Mr Kasparov was born in 1963 and lives in Moscow;
(2) Mr Tarasov was born in 1968 and lives in Moscow;
(3) Mr Kharlamov was born in 1973 and lives in Moscow;
(4) Mr Kalashnikov was born in 1971 and lives in Moscow;
(5) Mr Toropov was born in 1973 and lives in
Orudyevo, in the Moscow Region;
(6) Mr Stelmakh was born in 1978 and lives in Moscow;
(7) Mr Orel was born in 1968 and lives in Moscow;
(8) Mr Melikhov was born in 1972 and lives in
Korolev, in the Moscow Region;
(9) Ms Chelysheva was born in 1967 and lives in
Nizhniy Novgorod.
The facts of the case, as submitted by the parties,
may be summarised as follows.
1. Demonstration of 14 April 2007
In 2007 the first applicant, together with other
individuals representing a coalition of opposition groups,
intended to take part in an anti-government rally to campaign
before the forthcoming parliamentary elections. The demonstration became
known as the March of Dissenters; it was organised by three individuals, none
of whom are applicants in the present case. On 30 March 2007 they submitted
notice of a public demonstration to the mayor of Moscow. They indicated, in
particular, that a meeting would be held at 12 noon on 14 April 2007 in Novopushkinskiy Park, which would last until 1.30 p.m. and would be followed by a march via Tverskaya Street and Okhotnyy Ryad Street to Teatralnaya Square. The march was to end at 2
p.m. They estimated that about 2,000 people would take part in the event. The notice
stated that the proposed demonstration was intended “to express the demands of
Russian citizens for the urgent reinstatement of the full scope of citizens’
electoral rights, through the abolition of the legislative amendments of recent
years”.
On 5 April 2007 the Department for Liaison with
Security Authorities of the Moscow Government informed the organisers that the
event was liable to disrupt the functioning of urban services and the movement of
passers-by. Therefore, authorisation could only be granted for a meeting at the
foot of the Griboyedov monument on Chistoprudnyy Boulevard (a different location
in central Moscow) between 12 noon and 1.30 p.m.; the number of participants
could not exceed 1,000, the maximum capacity of the venue. No march was authorised.
On 6 April 2007 the organisers resubmitted the
notice, proposing four alternative routes for the march, all in central Moscow,
and agreeing to limit the number of participants to 1,000.
On 10 April 2007 the Department for Liaison with
Security Authorities of the Moscow Government informed the organisers that none
of the alternatives could be accepted, for the same reasons as the refusal of
the original proposal. It suggested that the organisers hold the event at an
aeronautical club in one of the Moscow suburbs.
The documents submitted by the Government reveal
that on 14 April 2007 the Moscow police were reinforced by special units of the
riot police (“OMON”) brought in specially from twenty-nine regions of Russia
“to protect public order and security” on that day.
According to the Government, on 14 April 2007 at
about 11.40 a.m. groups of people started gathering near Pushkinskaya Square. A
group of about twenty persons, including the first eight applicants, started
marching down Tverskaya Street while shouting anti-government slogans. The
total number of people who took part in this unauthorised march was about fifty.
According to the Government, the applicants were arrested as they tried to pass
from Tverskaya Street onto Red Square. The Government originally alleged that
the march down Tverskaya Street had begun at 1.30 p.m., as had been indicated
in the police reports, but they subsequently submitted that the applicants had
been arrested at 1 p.m. and brought to the police station at 1.30 p.m.
The applicants claimed that they had not staged
a demonstration in Tverskaya Street, but had happened to be there for different
reasons. Mr Kasparov, Mr Tarasov and Mr Toropov claimed that at 12 noon they
had been walking peacefully down Tverskaya Street towards the place of the
authorised meeting at the Griboyedov monument. The applicants did not specify
the number of people walking alongside them. They claimed that their way had
been barred by the riot police who were blocking off several streets in central
Moscow. The applicants claimed that at this stage all pedestrians, both aspiring
protesters and unsuspecting passers-by, had been pushed back, surrounded and
indiscriminately beaten up by the riot police, before being arrested and taken
in police vans to different police stations.
Mr Stelmakh claimed that he had not been heading
to a meeting but had been walking down Tverskaya Street with his friends; when
he saw the riot police dispersing a crowd and arresting people he had dropped
into the “Russkoye Bistro” café, where he was arrested at about 12 noon.
Four other applicants denied any connection with
the march. Mr Kharlamov claimed that he had had no intention of
participating in a public event; he had been arrested when he came out of a
shop near Pushkinskaya Square after having collected his mobile phone, which was
being repaired. Mr Kalashnikov claimed that he had been arrested when he was
heading to a local McDonald’s restaurant to meet a friend. Mr Orel also
submitted that he had been heading to McDonald’s but could not get there because
the street was closed off by the riot police; he too had dropped in to the “Russkoye
Bistro” café on Tverskaya Street, where he had been arrested. Mr Melikhov also
said that he had been heading to McDonald’s but could not get there and had
been arrested in Tverskaya Street.
The applicants claimed that there had been at
least thirty other people in the police van, all of whom had been arrested at
the same time as them.
When the applicants arrived at the police
station, reports on their administrative arrest were drawn up in accordance
with Article 27.4 of the Code of Administrative Offences. The first to eighth
applicants were charged with the administrative offence of breaching the regulations
on holding demonstrations. The administrative proceedings in their cases are
described below.
On 17 April 2007 the first applicant received a
letter from the Federal Security Service summoning him for an interview, following
a media appeal broadcast on 8 April 2007 by the radio station Ekho Moskvy, in
which he had called on listeners to take part in the demonstration on 14 April
2007. It was suggested that such statements could constitute the criminal
offence of incitement to extremist activities. There is no information on any
follow-up to this interview.
2. Administrative proceedings concerning the first
applicant
After his arrest on 14 April 2007 the first
applicant was taken to the police station and was then brought before the
Justice of the Peace of Circuit no. 369 of the Tverskoy District of Moscow. He
was charged with a breach of the established procedure for conducting public
assemblies, an offence under Article 20.2 § 2 of the Administrative Offences
Code.
The hearing of the administrative case was fixed
for 5.30 p.m. on the same day. The applicant filed two motions to have the
hearing adjourned in order to have sufficient time to prepare his defence, but
the Justice of the Peace noted the insignificant volume of the case file (five
pages) and decided to hold the hearing on the same day, having postponed it first
by forty-five minutes and then by an additional twenty minutes.
At 6.30 p.m. on the same day the Justice of the
Peace examined the charges. At the hearing the first applicant was represented
by a lawyer. The applicants alleged that no members of the public had been allowed
in the courtroom during the hearing, as the building had been cordoned off by
the police. The first applicant’s counsel, Ms Moskalenko, filed a motion to
have the hearing opened to the public. The Justice of the Peace issued a
decision stating that the hearing was open to the public.
At the beginning of the hearing the applicant
filed a motion to call and examine six eyewitnesses, four of whom had been
arrested at the same time as him. The Justice of the Peace rejected the motion,
holding that it was premature to call witnesses before the applicant and the
police had been questioned.
The Justice of the Peace examined the police
report, according to which the first applicant had been arrested at 1.30 p.m. while
“walking in a big group of people shouting anti-government slogans”. She also
questioned Mr I., the policeman who had arrested the applicant and drawn up the
report. The latter testified that because of the public manifestations expected
to take place between 12 noon and 4 p.m. on 14 April 2007 he had received an instruction
to safeguard public order at 19 Tverskaya Street, in particular to stop any
organised groups of people heading in the direction of Red Square. He also
testified that Mr Kasparov had been walking in a group of about fifty to sixty
people and, following the instructions to disperse the unauthorised demonstration,
which was threatening to spill over into the security perimeter of Red Square,
he had arrested him. The applicant claimed that the policeman had given the wrong
place and time of the arrest, and reiterated the request to question the eyewitnesses,
stating that the persons in question were waiting outside the court and were
ready to be called. The Justice of the Peace rejected the motion on the grounds
that the persons concerned had not been mentioned in the police report and that
the facts were sufficiently clear to determine the charges. The court accepted
the version of events put forward by the police, finding as follows:
“Assessing the testimony by [Mr I.], the court finds it credible
because [Mr I.] was performing his professional duties; he had not been
acquainted with the applicant and had no reason to slander him; he [was a party]
with no vested interest.”
The Justice of the Peace referred to the Moscow authorities’ decision of 5 April 2007 and concluded that on 14 April 2007 the first
applicant had attempted to take part in an unauthorised demonstration at 19 Tverskaya Street, where he had been arrested. The applicant was found to have acted in
breach of the regulations on holding demonstrations and was convicted of an
administrative offence under Article 20.2 of the Administrative Offences Code. He
had to pay a fine of 1,000 Russian roubles (RUB, about 25 euros (EUR)).
The applicant appealed to the Tverskoy District
Court of Moscow. He contested the facts as established at first instance, claimed
that the hearing had not been held in public and alleged that he had not been
given a chance to prepare his defence or to present his case adequately.
On 14 May 2007 the Tverskoy District Court
examined the applicant’s appeal. It upheld the first-instance judgment,
reiterating that the applicant had participated in an unauthorised demonstration
and that he had been marching in a group of people chanting anti-government
slogans. It also noted that there had been no proof that the first-instance
hearing had not been held in public or that the applicant had not been given sufficient
time to prepare his defence, since he had had two hours to do so.
3. Administrative proceedings concerning the second to
eighth applicants
The administrative proceedings concerning each
of these applicants were conducted at first instance by the Justice of the
Peace of Circuit no. 369 of the Tverskoy District of Moscow. Like the
first applicant, they were individually convicted of having breached the
procedure for the conduct of public assemblies, an administrative offence under
Article 20.2 of the Administrative Offences Code, and had to pay a fine of RUB 1,000
each. During the trial all of them contested the police reports, in particular
as regards the time and circumstances of their arrest, and requested the court to
call and examine eyewitnesses. The Justice of the Peace found, however, that
the facts were sufficiently established in each case and rejected the requests.
The decisions and the reasons given by the court were essentially the same as
in the first applicant’s case.
The fifth applicant’s case was examined in the
absence of the applicant and his lawyer because the court had rejected a motion
lodged by him for the proceedings to be adjourned, finding that it was possible
to proceed without the applicant and his lawyer.
The first-instance judgments were given on the
following dates: in the second, third, fourth and sixth applicants’ cases on
16 April 2007; in the fifth applicant’s case on 22 May 2007; and in the
seventh and eighth applicants’ cases on 25 April 2007.
The applicants subsequently appealed unsuccessfully
to the Tverskoy District Court of Moscow. The reasons given by the appeal court
were essentially the same as in the first applicant’s case. The appeal
decisions in the applicants’ cases were given on 14 May 2007, with the
exception of the appeal decision in the fifth applicant’s case which was given on
11 July 2007.
4. The complaint lodged by the ninth applicant
The ninth applicant alleged that on 14 April
2007 she had been heading to the meeting at the Griboyedov monument. At Sretenskiye Vorota Square she and other pedestrians had been attacked by a unit of the riot
police. The applicant had seen a policeman hitting a man with a truncheon and had
intervened to try to stop the beating, but the policeman had kicked her on her
left leg. She had been badly hurt and therefore could not go to the meeting.
Later on the same day she had sought medical help at Moscow City Clinic no. 137,
where she had been diagnosed with a haematoma of the left ankle.
On 16 April 2007 the applicant filed a complaint
with the Moscow prosecutor’s office requesting that criminal proceedings be
brought against the policemen who had used force against her.
On 6 July 2007 the Meshchanskiy Inter-District
Prosecutor’s Office decided to dispense with a criminal investigation into the
incident.
On 18 March 2011 the same prosecutor’s office
quashed the above decision and remitted the file for additional investigation.
Instructions were given to question the applicant and the three named eyewitnesses,
to obtain the medical documents and to conduct a forensic examination. There is
no information as to the outcome of those proceedings.
II. RELEVANT DOMESTIC LAW
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
“1. Breaches of the established procedure for the
organisation of public gatherings, meetings, demonstrations, marches or pickets
shall be punishable by an administrative fine of between ten and twenty times
the minimum wage, payable by the organisers.
2. Breaches of the established procedure for the
conduct of public gatherings, meetings, demonstrations, marches or pickets
shall be punishable by an administrative fine of between RUB 1,000 and RUB 2,000
for the organisers, and between RUB 500 and RUB 1,000 for the participants.”
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 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 arrest
“1. Administrative arrest 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. ...
...
3. Where the detained person so requests, his
family, the administrative department at his place of work or study and his
defence counsel shall be informed of his whereabouts.
...
5. The arrested 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 arrest report
“1. The administrative arrest shall be recorded in a
report ...
2. ... If he or she so requests, the arrested person
shall be given a copy of the administrative arrest report.”
Article 27.5 Duration of administrative arrest
“1. The duration of the administrative arrest 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 arrest for up to 48 hours.
3. Persons subject to administrative proceedings
concerning offences punishable, among other administrative sanctions, by
administrative detention may be subject to administrative arrest for up to 48
hours ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The first to eighth applicants complained of a
violation of the right to a fair and public hearing in the determination of the
administrative charges against them. They relied on Article 6 § 1 of the
Convention, which provides:
“In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests of
morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so
require, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of
justice.”
A. Admissibility
1. Applicability of Article 6
The Government requested the Court to declare this
complaint inadmissible as being incompatible ratione materiae with the provisions
of the Convention. They argued that Article 6 was inapplicable to the
administrative proceedings; the applicants’ cases did not concern the
determination either of their civil rights and obligations or of criminal
charges against them. They argued that the offence under Article 20.2 of the
Code of Administrative Offences was not punishable by administrative detention,
a fact which distinguished the present case from Ziliberberg v. Moldova
(no. 61821/00, § 34, 1 February 2005). The Government also pointed out that the
administrative offence in question fell within the jurisdiction of the Justice
of the Peace, a judicial authority competent to adjudicate in cases concerning
criminal offences carrying a maximum sentence of up to three years’
imprisonment, as well as in civil disputes and administrative matters.
The applicants contended, on the other hand,
that the criminal limb of Article 6 was applicable to the proceedings at issue.
They referred to the criteria set out in Engel and Others v. the Netherlands
(8 June 1976, §§ 82-83, Series A no. 22), and claimed that the
offences they had been convicted of were essentially criminal despite their
classification in domestic law as administrative. They also referred to Ziliberberg,
cited above, claiming that in that case the Court had found Article 6 to be
applicable to proceedings concerning an administrative offence similar to the
one at issue in the present case. They did not share the Government’s view that
the present case was to be distinguished from the aforementioned case either on
the ground suggested by the Government or on any other ground.
The Court reiterates that the applicability of
Article 6 falls to be assessed on the basis of the three criteria outlined in
the Engel judgment (see Engel and Others, cited above, §§ 82 and 83). In
order to determine whether an offence qualifies as “criminal”
for the purposes of the Convention, it is first necessary to ascertain whether
or not the provision defining the offence belongs, in the legal system of the
respondent State, to criminal law; next, the “very nature of
the offence” and the degree of severity of the penalty risked must be
considered (see, among other authorities, Öztürk v.Germany,
21 February 1984, § 50, Series A no. 73; Demicoli v. Malta, 27 August
1991, §§ 31-34, Series A no. 210; and Galstyan v. Armenia, no.
26986/03, §§ 55-60, 15 November 2007).
In addition, even though the Court’s established
jurisprudence regards the second and third criteria laid down in Engel as
alternative and not necessarily cumulative, this does not exclude that a
cumulative approach may be adopted where separate analysis of each criterion
does not make it possible to reach a clear conclusion as to the existence of a
criminal charge (see Ezeh and Connors v. the United Kingdom [GC], nos.
39665/98 and 40086/98, § 86, ECHR 2003-X).
In Russian domestic law, a breach of the regulations
on holding a public assembly is classified as an “administrative offence”. The
Court has previously examined the sphere defined in certain legal systems as
“administrative” and found that it embraces some offences that are criminal in nature but too trivial to be governed by criminal
law and procedure (see Palaoro v. Austria, 23 October 1995, §§ 33-35,
Series A no. 329-B). Where this is the case, the indication afforded by
national law is not decisive for the purpose of Article 6 and the very nature
of the offence in question is a factor of greater importance (see Campbell
and Fell v. the United Kingdom, 28 June 1984, § 71, Series A no. 80; Weber
v. Switzerland, 22 May 1990, § 32, Series A no. 177; and Menesheva
v. Russia, no. 59261/00, §§ 96-98, ECHR 2006-III).
As regards the nature of the offence committed
by the applicants, Article 20.2 of the Code of Administrative Offences makes it
a punishable offence to participate in an unauthorised demonstration. That
provision regulates offences against public order and is designed to regulate
the manner in which demonstrations are held. Accordingly, the legal rule
infringed by the applicant is directed towards all citizens and not towards a
given group possessing a special status. The Court therefore concludes that the
offence was of a general character.
The Court further notes that the applicants were
sentenced to a fine, which the Government considered a trivial penalty. The
Court notes that the applicants in the instant case were fined the equivalent
of EUR 25, the maximum penalty under the applicable provision. More
importantly, the fines payable in the present case were not intended as
pecuniary compensation for damage but were punitive and deterrent in nature,
which is also a characteristic of criminal penalties (see Öztürk, cited
above, § 53).
Furthermore, the Court notes that the applicants
in the present case were arrested and taken into police custody for around two
hours. As a matter of principle, it attaches particular importance to any form
of deprivation of liberty when it comes to defining what constitutes the “criminal”
sphere (see Ziliberberg, cited above, § 34). In this case, moreover, the
Court observes that the applicants were subjected to an administrative arrest
under Article 27.3 of the Code of Administrative Offences, a measure which has stronger
criminal connotations than the escorting of an individual to the police station
as provided for by Article 27.2 of the Code.
These considerations are sufficient for the
Court to establish that the offence of which the first to eighth applicants were
convicted can be classified as “criminal” for the purposes of
the Convention. It follows that Article 6 applies.
2. Conclusion as to admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
Although they considered that the administrative
proceedings fell outside the scope of Article 6, the Government claimed that the
applicants had been provided with all the guarantees of a fair hearing. In
particular, the principle of equality of arms had been ensured in that the
Justice of the Peace had examined both parties’ submissions, having taken
cognisance of the applicants’ account of events as well as that of the police.
They also contended that the proceedings before the Justice of the Peace had
been conducted in public, as required by Article 24.3 of the Code of
Administrative Offences; the Justice of the Peace had confirmed this by a
separate decision in the first applicant’s case, following a motion to have the
hearing opened to the public. The decision expressly stated that the hearing
was open to the public. The Government contested the first applicant’s
allegation that members of the public had been stopped by the police in front
of the court building, arguing that the applicants’ allegations related to a time
when the proceedings had not yet begun, given that at 6 p.m. the first
applicant and his lawyers had been preparing for the hearing. Furthermore, at his
request the first applicant had been given an additional forty-five minutes to
prepare for the hearing.
The Government further contended that the
applicants had been found guilty on the basis of ample evidence, including the
police reports and the testimonies of the police officers as well as the
documents provided by the Government of Moscow relating to the application to
hold the public event on 14 April 2007. As regards the refusal to call
witnesses at the applicants’ request, the court had stated that there was no
need to examine them because the evidence in the file was sufficient to
establish the circumstances of the case; the Government subscribed to that
finding, which it considered to be reasonable.
Finally, they pointed out that the applicants’
appeals against the first-instance decisions had been examined by the
Tverskoy District Court. Thus the applicants had been able to avail themselves
of a judicial hearing of their cases, with all the pertinent guarantees, at two
instances.
The applicants, for their part, argued that the
proceedings concerning the administrative offences had failed to comply with
the guarantees of a fair and public hearing, alleging that the principle of equality
of arms had not been secured in that the witnesses for the defence had not been
called, and that the public had been excluded from the trial of the first
applicant.
In the first applicant’s case, they also claimed
that he had not been given sufficient time to prepare his defence because the judge
had refused to adjourn the hearing and had given the applicant and his counsel
only twenty minutes to prepare. The first applicant also claimed that the
charges against him had not been specified before the trial, as only a general
reference had been made to Article 20.2 of the Code without any indication as
to which of the four offences covered by that Article he was accused of; this
had also been an impediment to preparing his defence. He further complained
that at the hearing no witnesses had been called and examined, except for the
officer who had arrested the first applicant. The applicant’s request to call
other eyewitnesses had been rejected on the grounds that it was unnecessary. The
first applicant contested the Government’s claim that the proceedings in his
case had been held in public. He submitted, in particular, that even his two lawyers
had been denied access to the courthouse, although they had had authority forms
to represent him in the proceedings. Following the motion to allow admission at
least to the family the court had indeed issued the decision to which the
Government had referred, to the effect that the proceedings were already open
to the public, but the police had nevertheless continued to cordon off the
courthouse.
The second applicant indicated that prior to his
trial he had not been given a copy of the police report concerning the
administrative charges he was facing. He also complained that the court had
refused to call and examine the eyewitnesses, in particular the first and the
fourth applicants and the policeman who had drawn up the report in his case, on
the grounds that there had been sufficient evidence in the case file.
The third and fourth applicants alleged that they
had been wrongly convicted of an administrative offence as the result of an
error by the police. Neither of them had had any intention of taking part in
the meeting but had happened to be passing by: the third applicant had been arrested
after collecting his mobile phone from a local service shop, and the fourth
applicant had been on his way to a private appointment. The third applicant had
presented the shop receipts to the court but they had been dismissed as
irrelevant. Moreover, in both cases the court had refused to call and examine
the eyewitnesses and the policemen who had drawn up the report. Both applicants
had been convicted of an administrative offence on the basis of the police
report alone and had been deprived of any opportunity of proving their innocence.
The fifth applicant submitted that the
administrative proceedings had been conducted in his absence because the court
had dismissed his request to adjourn the proceedings on medical grounds, having
found that his presence was unnecessary. He had therefore been given no chance
at all to state his case before a court at the crucial moment of establishment
of the facts at first instance.
The sixth, seventh and eighth applicants
complained that the court had not verified their version of events and had not
taken cognisance of the fact that they had contested the time and the
circumstances of their arrest.
2. The Court’s assessment
The Court notes that all the applicants alleged
a violation of Article 6 § 1 because of the generally unfair manner
in which the domestic courts had established the relevant facts underlying the
charges against them. In particular, they claimed that the courts had not given
them a chance of pleading their case, by dismissing all the evidence and
witnesses capable of supporting the applicants’ version of events. In the case
of the fifth applicant the court, furthermore, had not heard evidence from the
applicant himself because it had decided to proceed in his absence.
The Court reiterates that the admissibility of
evidence is primarily governed by the rules of domestic law. As a general rule,
it is for the national courts to assess the evidence before them as well as the
relevance of the evidence which defendants seek to adduce (see, among other
authorities, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 68,
Series A no. 146). More specifically, Article 6 § 3 (d) leaves it to them,
again as a general rule, to assess whether it is appropriate to call witnesses,
in the “autonomous” sense given to that word in the Convention system (see Asch
v. Austria, 26 April 1991, § 25, Series A no. 203).
It remains the task of the Court, however, to
ascertain whether the proceedings, considered as a whole, were fair as required
by Article 6 § 1 (see Delta v. France, 19 December 1990, § 35, Series A
no. 191, and Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235-B).
In the context of the taking of evidence, the Court has paid particular
attention to compliance with the principle of equality of arms. It has held, in
particular, that it is one of the fundamental aspects of a fair hearing and
that it implies that the applicant must be “afforded a reasonable opportunity
to present his case under conditions that do not place him at a disadvantage vis-à-vis
his opponent” (see Bulut v. Austria, 22 February 1996, § 47, Reports
of Judgments and Decisions 1996-II). Therefore, even though it is
normally for the national courts to decide whether it is necessary or advisable
to call a witness, there might be exceptional circumstances which could prompt
the Court to conclude that the failure do so was incompatible with Article 6
(see Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158, and Destrehem
v. France, no. 56651/00, § 41, 18 May 2004).
In order to decide whether the applicants in the
instant case were afforded the opportunity to present their case without being
placed at a disadvantage vis-à-vis the prosecution, and whether the
proceedings were conducted fairly, the Court will first examine what
constituted the basis of the applicants’ conviction (see, mutatis mutandis,
Destrehem, cited above, § 43).
Turning to the first applicant’s case, the Court
observes that Mr Kasparov was brought before the Justice of the Peace after
being apprehended in Tverskaya Street, allegedly for taking part in an
unauthorised march. It observes, next, that the circumstances surrounding his
arrest, such as the purpose of his being there, the time of the alleged march
and even the time and the exact place of the arrest were in dispute between the
parties.
Uncertainty on these points remains to date. In
the proceedings before the Court, the respondent Government alleged that the
march down Tverskaya Street began at 1.30 p.m., but in another part of their
observations they submitted that the crowd had started to gather for the march
at 11.40 a.m., and that the applicants had been arrested at 1 p.m. and had been
brought to the police station at 1.30 p.m. This timeframe is consistent with the
applicants’ version of events and not with what the police reported.
In the proceedings before the Justice of the
Peace, Mr Kasparov contended that he had been walking with a small group of
people towards the Griboyedov monument, the venue for a meeting that had been
duly authorised by the Moscow authorities. The police, on the other hand,
alleged that Mr Kasparov had not simply been walking but had been taking part
in an unauthorised demonstration, and they insisted that he had been doing so
at a time when the event at the Griboyedov monument had ended. Another
controversy between the parties relates to the place of arrest. According to
the police, the applicants, including the first applicant, were arrested when
the demonstration threatened to spill over into Red Square, a designated high-security
area. The first applicant, meanwhile, claimed that he had been arrested in Tverskaya Street when he and his companions had reached the security barrier set up by the
riot police at a considerable distance from Red Square.
The Court has previously held that in circumstances
where the applicant’s conviction was based primarily on the assumption of his being
in a particular place at a particular time, the principle of equality of arms
and, more generally, the right to a fair trial, imply that the applicant should
be afforded a reasonable opportunity to challenge the assumption effectively
(see Popov v. Russia, no. 26853/04, § 183, 13 July 2006, and Polyakov
v. Russia, no. 77018/01, §§ 34-37, 29 January 2009).
In the first applicant’s case, however, the
court rejected the attempts by the applicant to clarify the time and place of
his arrest, although these facts were central to the determination of the administrative
charges. Presented with two irreconcilable statements, the Justice of the Peace
decided to base the judgment exclusively on the version put forward by the
police because they had been a “party with no vested interest”. However, the
Court considers that, given the significance of the disputed facts for the
outcome of the case and the role of the police officer who arrested the
applicant and drew up the report, it was indispensable for the Justice of the
Peace to exhaust every reasonable possibility of finding out exactly when and
where the first applicant had been arrested.
The Court notes that calling the eyewitnesses who
could have shed light on these events would have been a straightforward matter.
Their names and addresses were known; four of them had been arrested at the
same time as the applicant, and they were, according to the applicant’s counsel,
waiting outside the court to give evidence. In any event, the Justice of the Peace
did not refer to any technical obstacles to finding these persons. She simply
considered it superfluous to the proceedings.
The Court cannot but conclude that the Justice
of the Peace accepted the submissions of the police readily and unequivocally
and denied the first applicant any possibility of adducing any proof to the contrary.
The Court recognises that the charges against the applicant were rather trivial
and that the proceedings concerning such matters are meant to be conducted
expeditiously. However, taking into account the fact that the applicant’s
conviction was founded upon conflicting evidence against him, the Court finds
that the domestic courts’ unreserved endorsement of the police report and their
refusal to examine the defence witnesses without any regard to the relevance of
their statements led to a limitation of the defence rights incompatible with
the guarantees of a fair hearing (see Popov, cited above, § 188). Accordingly,
there has been a breach of the principles enshrined in Article 6 of the
Convention.
The Court further notes that the other
applicants’ trials were all conducted in a virtually identical manner, that is,
without giving the applicants any possibility of adducing evidence in support
of their version of events. In the fifth applicant’s case, this circumstance
was further aggravated by the fact that the court did not consider his, or his
lawyer’s, presence necessary for the conduct of the proceedings.
Having regard to the foregoing conclusion and
the particular circumstances of the present case, the Court considers it
unnecessary to examine the first applicant’s complaints that there was no public
hearing and that he had insufficient time to prepare his defence, or the second
applicant’s complaint that he was not given access to the police report prior
to the court hearing.
In view of the foregoing, the Court concludes
that there has been a violation of Article 6 § 1 of the Convention in respect
of the first eight applicants.
II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF
THE CONVENTION
The applicants complained that the authorities’
conduct on 14 April 2007 had interfered with their right to freedom of
expression and their right to freedom of peaceful assembly, guaranteed by
Articles 10 and 11 of the Convention respectively. Those provisions read as
follows:
Article 10 (freedom of expression)
“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless
of frontiers. This Article shall not prevent states from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of
the judiciary.”
Article 11 (freedom of assembly and association)
“1. Everyone
has the right to freedom of peaceful assembly and to freedom of association
with others, including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the exercise
of these rights other than such as are prescribed by law and are necessary in a
democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others. This Article shall not
prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of the
state.”
A. Admissibility
1. The first, second and fifth applicants
The Court notes that in so far as Mr Kasparov,
Mr Tarasov and Mr Toropov are concerned, this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. The third, fourth, sixth, seventh and eighth applicants
The Court notes that in making their complaints
under Article 10 and 11 these applicants denied that they had had any intention
of taking part in a public assembly on 14 April 2007, either on Tverskaya Street, at the Griboyedov monument or elsewhere. They all claimed before the
domestic courts and in their applications to the Court to have been arrested by
mistake, simply because they had accidentally and by mischance found themselves
in the midst of the attempts to break up the demonstration on Tverskaya Street. They have therefore not made out a prima facie case of interference with
their freedom of expression or freedom of assembly.
It follows that this part of the application by
Mr Kharlamov, Mr Kalashnikov, Mr Stelmakh, Mr Orel and Mr Melikhov is
manifestly ill-founded and must be rejected in accordance with Article 35
§§ 3 (a) and 4 of the Convention.
3. The ninth applicant
The Court notes at the outset that in setting
out her complaints of ill-treatment this applicant did not allege,
expressly or implicitly, a violation of Article 3 of the Convention. Under
Articles 10 and 11 of the Convention she claimed that the injury allegedly
inflicted on her by the police had prevented her from taking part in an
authorised public meeting at the Griboyedov monument. The Court further
observes that she attempted to lodge a criminal complaint against the policeman
who, as she alleged, had kicked her on the ankle; however, apart from a copy of
her complaint she provided the Court with no further material in support of her
version of events, not even a witness statement by any persons who might have
been with her at the time. It should be noted that the alleged assault on the
ninth applicant was a separate event from the arrest of the other applicants
and took place at a different location. Therefore it cannot be said that her
allegations are corroborated by the account of events given by the other
applicants. As the file stands, the Court cannot even establish that the police
did in fact disperse the authorised meeting at the Griboyedov monument.
Moreover, the applicant did not attempt to lodge a civil-law complaint
specifically alleging a violation of her right to peaceful assembly on that
occasion, thus failing to exhaust domestic remedies for the purposes of Article
11 of the Convention or to substantiate her allegations.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
B. Merits
1. The parties’ submissions
As regards the scope of the case, Mr Kasparov,
Mr Tarasov and Mr Toropov submitted that this case should be considered
under Article 10 of the Convention as a separate issue from that under Article
11. They alleged that one of the reasons for their arrest was that they had
been chanting “Putin go away” while walking down Tverskaya Street, and that
their case was to be distinguished on that ground from other cases concerning
restrictions on demonstrations in which the Court had ruled that an Article 10 complaint
was subsumed by a complaint under Article 11.
The applicants further argued that there has
been interference with their freedom of peaceful assembly and freedom of expression.
They alleged that their arrest on 14 April 2007 had prevented them from
attending the meeting at the Griboyedov monument, an event authorised by the Moscow authorities. Moreover, the administrative liability imposed on them following the
arrest also constituted disproportionate interference with their Convention
rights.
As regards the lawfulness of the interference,
the applicants contested the reasons given by the authorities for their arrest,
in particular the allegation that they had been trying to enter Red Square,
which was a designated security area. They referred to their original notice of
the march and pointed out that the proposed route ran along Tverskaya Street,
turning in to Teatralnaya Square, away from Red Square. They therefore
contended that even if the police had perceived the demonstrators to be marching
down Tverskaya Street in the direction of Red Square, they should not have
assumed that they were going to penetrate the security area.
The Government pointed out that neither the event
organisers nor any other interested parties had challenged the Moscow authorities’ decision of 5 April 2007 concerning the proposed event. Instead they had
gone ahead with the march without authorisation. The Government contested, in
particular, the allegation that the applicants had merely been walking to the
venue of the authorised meeting at the Griboyedov monument. They also disagreed
with the applicants about the time of the arrest, in particular as to whether
it had taken place before or after the authorised meeting. The Government first
insisted that the applicants had been arrested at 1.30 p.m., when the meeting
had already ended, with the exception of Mr Melikhov (the eighth applicant), who
had been arrested at 12.05 p.m. on Tverskaya Street, and Mr Kharlamov (the
third applicant), who had been arrested at 1 p.m. on Pushkinskaya Square. They
subsequently indicated that all the applicants had been arrested at 1 p.m. and had
been brought to the police station at 1.30 p.m. They challenged the applicants’
submissions on this point as inconsistent, pointing out that Mr Kasparov
had indicated 12 noon as the time of his arrest, whereas Mr Tarasov had initially
stated 1 p.m. and had only later changed it to 12 noon.
The Government further contested the allegation
that any chance passers-by had been detained or restrained by the police. In
particular, there had been no complaints from alleged random victims of
indiscriminate police actions. As to the applicants, all of them had knowingly
and intentionally participated in an unauthorised march.
The Government accepted that the applicants’
arrest and their conviction of an administrative offence had constituted
interference with their freedom of assembly. However, they maintained that those
measures had been lawful, had pursued the legitimate aim of maintaining public
order and had been proportionate to that aim for the purposes of Article 11 § 2
of the Convention. They claimed, in particular, that the applicants had been offered
a different venue at which to conduct a public event on the requested date and
that the proposed changes had seemingly been accepted by the event organisers.
Moreover, the authorised meeting had indeed taken place at the Griboyedov
monument, and the applicants could have participated in it. Instead, the
applicants had pursued the itinerary indicated in the original request, walking
on the pavement and on the road, obstructing pedestrians and traffic, and had
then tried to enter Red Square. Given that this route had not been agreed with
the Moscow authorities, the police could not have foreseen that the march would
take place there and then and therefore could not have taken measures to
maintain public order and safety. That was why the applicants, who were
ignoring the police warnings, had had to be arrested. This had also justified imposing
an administrative sanction on them which, moreover, had been relatively mild.
2. The Court’s assessment
(a) The scope of the applicant’s complaints
The Court notes that, in the circumstances of
the case, Article 10 is to be regarded as a lex generalis in relation to
Article 11, a lex specialis (see Ezelin v. France, 26 April 1991,
§ 35, Series A no. 202). The Court takes cognisance of the applicants’ request
to examine these as two separate issues because of the particular circumstances
of the case. It observes that the administrative charges brought in this case
referred, inter alia, to the applicants’ having chanted anti-government
slogans during an unauthorised demonstration. This complaint, falling in
principle under Article 10, is similar in scope to those examined in Galstyan
(cited above, §§ 95-96 and § 100), where the applicant was arrested and
convicted because of his behaviour during a political demonstration, and Sergey
Kuznetsov v. Russia, (no. 10877/04, § 23, 23 October 2008), where the
applicant was charged with an administrative offence for distributing offensive
leaflets during a picket. In these and other cases the Court found it
unnecessary to consider the complaint under Article 10 separately from that
under Article 11 of the Convention. There are no reasons to depart from that principle
in the present case.
On the other hand, notwithstanding its
autonomous role and particular sphere of application, Article 11 must, in the
present case, also be considered in the light of Article 10. The protection of
personal opinions, secured by Article 10, is one of the objectives of freedom
of peaceful assembly as enshrined in Article 11 (see Ezelin, cited
above, § 37).
(b) Whether there was interference with the exercise
of the freedom of peaceful assembly and whether the interference was justified
The Court reiterates that the interference does
not need to amount to an outright ban, legal or de facto, but can
consist in various other measures taken by the authorities. The term
“restrictions” in Article 11 § 2 must be interpreted as including both measures
taken before or during an assembly and those, such as punitive measures, taken
afterwards (see Ezelin, cited above, § 39). For instance, a prior
ban can have a chilling effect on the persons who intend to participate in a
rally and thus amount to an interference, even if the rally subsequently
proceeds without hindrance on the part of the authorities (see Bączkowski
and Others v. Poland, no. 1543/06, § 66-68, 3 May 2007). A
refusal to allow an individual to travel for the purpose of attending a meeting
amounts to an interference as well (see Djavit An v. Turkey, no.
20652/92, §§ 59-62, ECHR 2003-III). So too do measures taken by the
authorities during a rally, such as dispersal of the rally or the arrest of
participants (see Oya Ataman v. Turkey, no. 74552/01, §§ 7 and 30,
ECHR 2006-XIII, and Hyde Park and Others v. Moldova, no.
33482/06, §§ 9, 13, 16, 41, 44 and 48, 31 March 2009), and penalties
imposed for having taken part in a rally (see Ezelin, cited above, § 41;
Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.),
no. 50841/99, ECHR 2001-X; Mkrtchyan v. Armenia, no. 6562/03,
§ 37, 11 January 2007; Galstyan, cited above, §§ 100-02;
Ashughyan v. Armenia, no. 33268/03, §§ 75-77, 17 July
2008; and Sergey Kuznetsov, cited above, § 36).
The Court considers in that connection that irrespective
of whether Mr Kasparov, Mr Tarasov and Mr Toropov were heading to an authorised
public gathering, as they alleged, or were already in the process of conducting
an unauthorised rally, as the Government claimed, their arrest constituted an interference
with their right of peaceful assembly, as did the ensuing administrative
charges brought against them. The Court observes, moreover, that the Government
did not dispute the existence of the interference with the right to peaceful
assembly in the present case.
The Court reiterates that the right to freedom
of assembly is a fundamental right in a democratic society and is one of the
foundations of such a society (see among numerous authorities, Galstyan,
cited above, § 114). This right, of which the protection of personal
opinion is one of the objectives, is subject to a number of exceptions which
must be narrowly interpreted and the necessity for any restrictions must be
convincingly established. When examining whether restrictions on the rights and
freedoms guaranteed by the Convention can be considered “necessary in a
democratic society” the Contracting States enjoy a certain but not unlimited
margin of appreciation. An interference will be considered “necessary in a democratic
society” for a legitimate aim if it answers a “pressing social need” and, in
particular, if it is proportionate to the legitimate aim pursued and if the
reasons adduced by the national authorities to justify it are “relevant and
sufficient” (see, for example, Coster v. the United Kingdom [GC], no. 24876/94,
§ 104, 18 January 2001 and S. and Marper v. the United Kingdom [GC],
nos. 30562/04
and 30566/04,
§ 101, ECHR 2008). It is, in any event, for the Court to give a final ruling on
the restriction’s compatibility with the Convention and this is to be done by
assessing the circumstances of a particular case (see Osmani and Others,
cited above).
In the light of these principles the Court will
examine whether the interference with the applicants’ right to peaceful
assembly was lawful, pursued a legitimate aim and was necessary in a democratic
society.
As regards the lawfulness of the applicants’
arrest and the subsequent administrative charges brought against them, the
parties’ diverging views on this point are rooted in their conflicting accounts
of the factual circumstances of the case. The three applicants claimed that
they had been walking to the authorised public event at the Griboyedov
monument, and there had therefore been no grounds for their arrest, whereas the
Government claimed that they had had to be arrested because they had been conducting
a demonstration in breach of the regulations and because they were threatening
to break through the security perimeter of Red Square. The Court has already
found that the domestic courts made no attempt to establish the precise
circumstances of the applicants’ arrest, such as the time and the place, in
order to verify whether it had been necessary to stop them (see paragraphs 60-62
and 66 above). In the absence of sufficient factual material to resolve this
controversy the Court is unable to accept either party’s version of events as a
basis for deciding whether the authorities acted lawfully. In any event, it
considers that in this case the issue of compliance with the law is
indissociable from the question whether the interference was “necessary in a
democratic society”. It will therefore examine this issue below (see
Christian Democratic People’s Party v. Moldova, no. 28793/02, § 53,
ECHR 2006-II).
Turning to the existence of a legitimate aim,
the Court will accept that the applicants’ arrest and their conviction of an
administrative offence had pursued the legitimate aim of maintaining public
order, as the Government claimed.
To assess whether the interference was
“necessary in a democratic society” the Court will examine the proportionality
of the interference in the light of the reasons given by the domestic courts.
It observes that, according to the domestic judgments, the applicants were “walking
in a big group of people shouting anti-government slogans”, that this
constituted a public demonstration that had not been approved by the Moscow authorities and that the applicants were therefore in breach of Article 20.2 of the
Code of Administrative Offences. It follows that in the domestic courts’ view
it was the lack of permission to stage a public demonstration that served as grounds
for charging them with administrative offences.
The Court reiterates that although it is not a
priori contrary to the spirit of Article 11 if, for reasons of public order
and national security, a High Contracting Party requires that the holding of
meetings be subject to authorisation, an unlawful situation, such as the
staging of a demonstration without prior authorisation, does not justify an
infringement of freedom of assembly (see Cisse v. France,
no. 51346/99, § 50, ECHR 2002-III, and Oya Ataman, cited
above, §§ 37 and 39). While rules governing public assemblies, such as the
system of prior notification, are essential for the smooth conduct of public
events since they allow the authorities to minimise the disruption to traffic
and take other safety measures, their enforcement cannot become an end in
itself. In particular, where irregular demonstrators do not engage in acts of violence
the Court has required that the public authorities show a certain degree of
tolerance towards peaceful gatherings if the freedom of assembly guaranteed by
Article 11 of the Convention is not to be deprived of all substance (ibid., § 42;
see also Bukta and Others v. Hungary, no. 25691/04,
§ 34, ECHR 2007-III; Fáber v. Hungary, no. 40721/08,
§ 49, 24 July 2012, and Berladir and Others v. Russia, no. 34202/06, § 38, 10 July 2012).
Turning to the Government’s argument that the
applicants were arrested because of the risk of the demonstration spilling over
into the security area of Red Square, it must be noted that these reasons were also
cited by the policemen who gave testimony. However, the police reports did not
mention any such risk and, in any event, it did not form part of the reasoning
given by the Justice of the Peace or the Tverskoy District Court. Moreover, the
Court notes that the place of arrest set out in the judgments, 19 Tverskaya Street, is about 1.4 km away from the nearest approach to Red Square. Given the
modest size of the group (estimated by the police as fifty to sixty persons)
and the undeniably peaceful character of the march, the Court is not persuaded
that the threat of the marchers penetrating the security area was imminent.
The Government’s allegation that the police had
resorted to arresting the protesters because they were taken aback by the
unforeseeable and unauthorised demonstration and were otherwise unable to cope
is inconsistent with the facts established by the domestic courts. In
particular, a policeman testified that the authorities had anticipated a rally
at the time and place where the applicants were arrested, and measures had been
taken to cordon off the area in advance of the march (see paragraph 23 above).
Clear instructions had been given to the police officers who took part in the
riot control operation specifically planned for the event. Moreover, the documents
submitted by the Government reveal that reinforcements from the riot police had
been brought in for the day from twenty-nine regions of Russia precisely
because of the expected demonstration (see paragraph 11 above). These
preparations should undoubtedly have enabled the police to divert a march of
this scale from the high-security area.
Other considerations put forward by the
Government in their observations, such as the nuisance caused by the protesters
walking on the pavement and on the road and obstructing pedestrians and traffic,
were not mentioned in the police reports or domestic judgments either. It
therefore appears that they had no impact on the decisions taken in the applicants’
case. Moreover, given the heavy police presence, it should have been possible
to maintain public order and safety without resorting to arrests.
It follows that the applicants were arrested and
charged with administrative offences for the sole reason that the authorities
perceived their demonstration to be unauthorised. The Court therefore concludes
that the Government have failed to demonstrate that there existed a “pressing
social need” to arrest them.
In view of the above, the Court considers that
in the instant case the police’s forceful intervention was disproportionate and
was not necessary for the prevention of disorder within the meaning of the
second paragraph of Article 11 of the Convention. In these circumstances, the
fact that the applicants were subsequently charged with administrative offences
does not require a separate assessment.
In the light of the foregoing the Court
concludes that there has been a violation of Article 11 of the Convention as
regards Mr Kasparov, Mr Tarasov and Mr Toropov.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicants made complaints under
Articles 7 and 18 of the Convention. The Court has examined these complaints as
submitted by the applicants. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, it finds that they do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols. It follows
that this part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicants claimed 10,000 euros (EUR) each in
respect of non-pecuniary damage.
The Government contested these claims as unreasonable
and excessive. They considered that the sums related to the applicants’
allegations of inhuman and degrading treatment at the hands of the police, thus
falling outside the scope of this application.
The Court observes that it has found a violation
of Article 6 in respect of the first eight applicants, and also a violation of
Article 11 in respect of Mr Kasparov, Mr Tarasov and Mr Toropov. It further
notes that the applicants expressly referred to Articles 6 and 11 in their
claims for just satisfaction. Contrary to what the Government suggested, the
applicants’ claims for just satisfaction were not based on their grievances
about the “rough treatment” meted out to them during their arrest and their humiliation
in the administrative proceedings. Their claims for non-pecuniary damage essentially
reiterated their substantive complaints in respect of which a violation has
been found.
In these circumstances, the Court considers
that the applicant’s suffering and frustration cannot be compensated for by a
mere finding of a violation. Making its assessment on an equitable basis, it makes
the following awards in respect of non-pecuniary damage:
- to Mr Kasparov, Mr Tarasov and Mr Toropov: EUR 10,000 each,
plus any tax that may be chargeable on that amount;
- to Mr Kharlamov, Mr Kalashnikov, Mr Stelmakh, Mr Orel and Mr Melikhov:
EUR 4,000 each, plus any tax that may be chargeable on that amount.
B. Costs and expenses
The applicants also claimed reimbursement of
the costs and expenses incurred before the domestic courts and the Court, in
particular the fees of the three lawyers, Ms Moskalenko, Ms Mikhaylova and Ms Polozova,
in the amount of EUR 3,500 each.
The Government contested the applicants’ claims
for costs and expenses on the grounds that they had not presented a legal
services agreement with their counsel under which they would be obliged to pay
the sums claimed.
According to the Court’s case-law, an
applicant is entitled to reimbursement of his or her costs and expenses only in
so far as it has been shown that these have been actually and necessarily
incurred and are reasonable
as to quantum. The Court observes that Ms Moskalenko, Ms Mikhaylova and Ms
Polozova represented five of the nine applicants throughout the proceedings
before the Court; in particular, they submitted their applications and filed written
observations on their behalf. The Court therefore grants the applicants’ claim
relating to their legal representation before the Court and makes an aggregate
award of EUR 10,500, plus any tax that may be chargeable. The amount awarded
shall be payable into Ms Mikhaylova’s bank account directly, as requested
by the applicants.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the first eight applicants’ complaint
under Article 6 and the first, second and fifth applicants’ complaints under
Articles 10 and 11 admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 6 of the Convention as regards the first eight applicants;
3. Holds that there has been a violation of
Article 11 of the Convention as regards the first, second and fifth applicants;
4. Holds that there is no need to examine the
complaint under Article 10 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Russian roubles at the rate applicable at the date of
settlement:
(i) EUR 10,000 (ten thousand euros), plus any
tax that may be chargeable to the applicants, to the first, second and fifth
applicants each in respect of non-pecuniary damage;
(ii) EUR 4,000 (four thousand euros), plus any
tax that may be chargeable, to the third, fourth, sixth, seventh and eighth
applicants each in respect of non-pecuniary damage;
(iii) EUR 10,500 (ten thousand five hundred euros),
plus any tax that may be chargeable to the applicants, in respect of costs and
expenses, to be paid into the bank account of Ms Mikhaylova;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 3 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
