STEPAN ZIMIN v. RUSSIA - 63686/13 (Judgment : Article 3 - Prohibition of torture : Third Section) [2018] ECHR 110 (30 January 2018)

In the case of Stepan Zimin v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena Jäderblom, President,
Luis López Guerra,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 9 January 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 63686/13 and 60894/14) 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 a Russian national, Mr Stepan Yuryevich Zimin ("the applicant"), on 1 October 2013 and 2 September 2014 respectively.

2. The applicant was represented by Mr D.V. Agranovskiy, a lawyer practising in Elektrostal. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant complained about his prosecution and conviction for participation in acts of mass disorder. He submitted that his pre-trial detention had not been based on relevant and sufficient reasons. He also alleged that the conditions of transfer from his remand prison to the court-�house and back, as well as his confinement in glass cabins in the courtrooms, had amounted to inhuman and degrading treatment. The applicant further complained of a violation of his right to freedom of expression and his right to freedom of peaceful assembly.

4. On 19 December 2013 and 13 October 2014 the applications were communicated to the Government. Application no. 63686/13 was granted priority under Rule 41 of the Rules of Court on 19 December 2013.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1992 and lives in town Uzlovaya, Tula region.

A. Demonstration of 6 May 2012

6. The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016) and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties' submissions on the circumstances directly relevant to the present case are set out below.

7. On 6 May 2012 a public demonstration entitled the "March of Millions" was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it became apparent that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd the police cordon forced the protestors to remain within the barriers; there were numerous clashes between the two sides. At 5.30 p.m. the police ordered the meeting to finish early and began to disperse the participants. It took them about two hours to clear the square.

8. On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.

B. The applicant's arrest and pre-trial detention

9. At the time of his arrest the applicant was a fourth-year student at the Russian State Humanities University. On 6 May 2012 he took part in the demonstration at Bolotnaya Square. After the events the applicant continued to live at his usual address and pursue his studies.

10. On 8 June 2012 the applicant was arrested on suspicion of having participated in acts of mass disorder and of using violence against the police during the demonstration of 6 May 2012.

11. On 9 June 2012 the Basmannyy District Court of Moscow ordered that the applicant be placed in pre-trial detention until 8 August 2012. It referred to the gravity of the charges and stated that if at liberty the applicant could co-ordinate his position with accomplices, who had yet to be discovered and whose identities were still being established by the investigation. The court concluded that those circumstances gave sufficient reasons to believe that the applicant was likely to flee to avoid the investigation and trial, continue his criminal activity, destroy evidence or otherwise obstruct the investigation of the criminal case, which was still at an initial stage.

12. On 15 June 2012 charges were brought against the applicant under Articles 212 § 2 (participation in acts of mass disorder accompanied by violence) and 318 § 1 (use of violence against a public official) of the Criminal Code. He was accused, in particular, of attempting to break through the police cordon and of throwing pieces of tarmac and stones at Police Officer K., which had caused him a broken finger.

13. On 16 July 2012 the Moscow City Court upheld the detention order of 9 June 2012.

14. On 6 August 2012 the Basmannyy District Court examined an application from the investigator for an extension of the applicant's pre-trial detention. The applicant asked for the preventive measure to be changed to house arrest, a written undertaking not to leave a specified place, or personal guarantees. On the same day the District Court granted the investigator's application and extended the applicant's detention until 6 November 2012. It considered that the circumstances justifying the detention order had not changed.

15. On 12 September 2012 the Moscow City Court upheld the extension order of 6 August 2012.

16. On 30 October 2012 the Basmannyy District Court granted an extension of the applicant's detention until 6 March 2013, essentially on the same grounds as earlier, noting that the circumstances justifying the detention order had not changed.

17. On 20 November 2012 the charges against the applicant were reformulated. It was stated that he had gone to the venue of the public event with a mask, which he had later put on to conceal his face. He had shouted anti-government slogans and thrown at least three pieces of tarmac at the police officers. One chunk had hit Officer K. on the right hand, causing him pain but no lasting harm. The classification of the offences remained unchanged.

18. On 1 March 2013 and 22 April 2013 the Basmannyy District Court granted applications from the investigator for an extension of the applicant's pre-trial detention, until 8 June and 6 July 2013 respectively. It considered that the circumstances justifying the detention order had not changed. The Moscow City Court upheld those extension orders on 10 April and 30 May 2013 respectively.

19. On 24 May 2013 the applicant's criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges.

20. On 6 June 2013 that court granted another extension of the applicant's detention, until 24 November 2013. The decision concerned eleven defendants. Along with the gravity of the charges, the court based its decision on its findings that "the reasons which initially warranted the detention have not changed" and that "no other measures of restraint would secure the aims and goals of the judicial proceedings". The applicant's request for an alternative preventive measure was dismissed on the grounds that no other measure could secure the proper course of justice in the case. The Moscow City Court upheld that extension order on 2 July 2013.

21. On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant. It ordered their detention until 24 February 2014 on the grounds of the gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order.

C. Conditions of the applicant's detention

22. The applicant was held in IZ-77/5 in four different cells for the whole period of his pre-trial detention from 20 June 2012. He did not provide any description of the conditions of his detention.

D. Transfer between the detention centre and the court-house

23. The applicant's description of the conditions of detention during his transfer from the remand prison to court and back and the Government's submissions in that regard were identical to those in the case of Yaroslav Belousov (cited above, §§ 69-73).

24. As regards the conditions of detention in the convoy room of the Moscow City Court, the applicant submitted that it was poorly lit and that access to the toilet was limited to once an hour. In addition, he had been required to strip naked and to perform sit-ups during the body search conducted in the convoy room.

E. Conditions in the courtroom

25. On 6 June 2013 court proceedings began in hearing room no. 338 at the Moscow City Court, moving at the end of July 2013 to hearing room no. 635. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued at the Nikulinskiy District Court of Moscow in hearing room no. 303, while in January and February 2014 they took place at the Zamoskvoretskiy District Court in hearing room no. 410. Those hearing rooms were equipped with metal cages in which nine defendants (eight from 19 December 2013), including the applicant, sat during the hearings.

26. For a detailed description of the conditions in those hearing rooms see Yaroslav Belousov (cited above, §§ 74-77).

F. The applicant's trial

27. On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participation in acts of mass disorder and committing acts of violence against police officers. On 18 June 2013 the same court began the trial on the merits.

28. On an unidentified date Police Officer K., the alleged victim of the applicant's assault, was examined as a witness. He testified that he had noticed the applicant in the crowd wearing a black mask with eye holes. The applicant had acted aggressively and had thrown pieces of tarmac, bottles and stones at police officers along with other participants. One piece of tarmac had him on the right hand, which had caused a broken finger. K. had then arrested the applicant, who had tried to escape and had resisted the police officers. Another police officer, K.K., also questioned as a witness, testified that the applicant had thrown stones at the police officers.

29. On 21 February 2014 the Zamoskvoretsky District Court found the applicant guilty as charged. It held, in particular, as follows:

"Between 4 p.m. and 8 p.m. on 6 May 2012 ... at Bolotnaya Square ... unidentified persons ... called those present [at the venue] to move outside the agreed meeting venue, to defy the lawful orders of the police ..., to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [and] the destruction of property.

On the same day at 5 p.m. at the latest [the defendants] acquired the criminal intent to participate in mass disorder and to use violence against ... police officers ...

Thus, in furtherance of this criminal intent, at an unidentified time and place ... [the applicant] ... put on a mask to conceal his face so that he could not be recognised and brought to responsibility for committing unlawful acts ...

... between 5 p.m. and 6.30 p.m. [the applicant] ... repeatedly shouted anti-�government slogans.

Moreover ... the participants of the acts of mass disorder threw chunks of tarmac, stones, sticks and other objects at the police ... which hit them on various parts of their body, and [the defendants] ... [who] participated in the acts of mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force which was not a danger to the life or health of those [officials] ...

[The applicant] used violence against Police Officer [K.] which did not endanger his life or health...

[The applicant] ... from 5 p.m. to 6.30 p.m. ... put on a mask to conceal his face ... and threw at least three pieces of tarmac ... at police officers in a targeted manner ... One of the pieces ... which measured 15 cm by 15 cm ... hit the police officer [K.] on the right hand ... which caused him pain. ...

[The applicant] pleaded not guilty and testified that ... he had decided to attend the public gathering on 6 May 2012 ... after the security check he put on a mask with eye holes because he wanted to avoid being recognised by members of the opposition ... When a stampede occurred, he tried to leave the venue but could not get out of the crowd ... At some point ... [the applicant] saw three police officers with truncheons heading in his direction. He got scared and tried to hide from them in the crowd but they ran him down and twisted his arms behind his back, and one of the police officers asked him why he was wearing a mask and then said that it was prohibited. ... [the applicant] took the mask off and the police officers conveyed him to a police vehicle. Then they returned the mask to him. ... [the applicant] did not pick up any objects or did throw them at the police, he did not engage in any acts against Police Officer K. and did not resist arrest.

... the court finds that [the applicant's] guilt is established by the following evidence: ... a medical expert opinion stating that ... K. had a broken finger which could have been caused ... on 6 May 2012 ... the recovery process would take more than 21 days ...

... the court considers the [defendants'] arguments that they were protecting somebody from police officers or happened to be the victims of the police's use of force as farfetched and aimed at the mitigation of their responsibility ...

30. The applicant was sentenced to three years and six months' imprisonment, calculated on the basis of a three-year prison term under Article 212 § 2 of the Criminal Code, partly concurrent with a term of one year and four months under Article 318 § 1 of the Criminal Code. The applicant's pre-trial detention counted towards the prison sentence.

31. The applicant appealed. He contested his involvement in the acts of mass disorder and insisted that he had caused no injuries to Police Officer K. The applicant also complained that the court had refused to question Officer Sh., who could have confirmed his account of events.

32. On 20 June 2014 the Moscow City Court upheld the first-instance judgment.

II. RELEVANT DOMESTIC LAW AND PRACTICE

33. The Criminal Code of the Russian Federation provides as follows:

Article 212 Mass disorder

"1. The organisation of mass disorder, accompanied by violence, riots, arson, destruction of property, the use of firearms, explosives and explosive devices, as well by armed resistance to a public official, shall be punishable by four to ten years' deprivation of liberty.

2. Participation in the types of mass disorder provided for by paragraph 1 of this Article shall be punishable by three to eight years' deprivation of liberty.

3. The instigation of the acts of mass disorder provided for by paragraph 1 of this Article, or the instigation of participation in such acts, or the instigation of violence against citizens, shall be punishable by a restriction of liberty for up to two years, or community service for up to two years, or deprivation of liberty for the same term."

Article 318 Use of violence against a public official

"1. The use of violence which does not endanger life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of up to 200,000 roubles or an equivalent of the convicted person's wages for 18 months, or community service for up to five years, or up to five years' deprivation of liberty ..."

34. For a summary of the relevant domestic law provisions governing pre-trial detention and for the practice of the domestic courts in such matters see the case of Zherebin v. Russia (no. 51445/09, § 16-25, 24 March 2016).

THE LAW

I. JOINDER OF THE APPLICATIONS

35. Given their common factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION DURING PRE-TRIAL DETENTION

36. The applicant complained under Article 3 of the Convention about the allegedly poor conditions of his detention in IZ-77/5, in the convoy room at the Moscow City Court and during transfers to and from the prison. Article 3 of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

37. The Government submitted that the applicant had failed to give specific details about the conditions of his detention in the remand prison, merely alleging that they had been inhuman. They further stated that the applicant had been held in the cells that had allowed him about four square metres of personal space throughout his detention. The Government also submitted that the complaint about the conditions of detention in the convoy room of the Moscow City Court did not contain sufficient details.

38. The Court notes that in his initial application the applicant did not describe the conditions of his detention in the IZ-77/5 remand prison. In his subsequent observations the applicant did not contest the assertion that he had had four square metres of personal space in the cells during his detention and did not give specific details about other aspects of the physical conditions at the prison, such as the lighting, ventilation or sanitary conditions. The Court thus considers that the applicant was not subjected to severe overcrowding which could in itself have led to suffering incompatible with Article 3 of the Convention. In the absence of other grievances the Court is not in a position to rule that the conditions of the applicant's detention amounted to inhuman or degrading treatment (see, mutatis mutandis, Topal v. the Republic of Moldova (dec.), no. 37509/05, §§ 37-38, 18 March 2014). It follows that this complaint is manifestly ill-�founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.

39. The Court further notes that the complaint about the conditions during the prison transfer, including those in the convoy room at the Moscow City Court, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

40. The applicant alleged that his transfers between the remand prison and court had amounted to inhuman and degrading treatment. He complained about the frequency and length of the transfers, of appalling conditions in the convoy room and police vans, and of the intensity of the schedule, which had not left him sufficient time to sleep. The applicant argued that the combination of the above factors had led to physical exhaustion and mental distress.

41. The Government submitted that the applicant had been transferred eighty times from the remand prison to the court-house and back during the hearing of his criminal case. The applicant did not contest the number of transfers.

42. The Court examined these conditions of transfer to and from court, which were common to the applicant and his co-defendants, in the case of Yaroslav Belousov (cited above, §§ 103-11). It found that they amounted to inhuman and degrading treatment that were contrary to Article 3 of the Convention on account of a lack of sufficient rest and sleep on the days of court hearings; overcrowding and generally poor conditions in the convoy cells at the Moscow City Court; lengthy transfers between the remand prisons and the court; and poor conditions during the transfers. The Court sees no reason to depart from those findings in the present case. Accordingly, there has been a violation of Article 3 of the Convention in that respect.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF CONFINEMENT IN GLASS CABINS AND METAL CAGES DURING COURT HEARINGS

43. The applicant complained that his confinement in glass cabins and metal cages during the court hearing had amounted to inhuman and degrading treatment. He relied on Article 3 of the Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

44. The Government submitted that the applicant's complaints under Article 3 of the Convention had been lodged out of time. They repeated their submissions made in Yaroslav Belousov (cited above, § 113) in that regard.

45. The Court observes that the alleged ill-treatment took place during the first-instance hearing, which finished on 21 February 2014, and that the applicant did not submit that it had continued during the appeal hearing. It reiterates that the confinement of the applicant in glass cabins and metal cages concerned two distinct periods with materially different conditions of detention, which cannot be regarded as a continuous situation for the purposes of calculating the six-month time-limit set forth in Article 35 § 1 of the Convention (ibid., § 114). Furthermore, the Court has previously accepted that no remedy was available to applicants in relation to courtroom arrangements and that the six-month time-limit should be calculated from the date the alleged ill-treatment ceased (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 87, ECHR 2014 (extracts)).

46. As regards the alleged ill-treatment by placement in glass cabins, the Court notes that it began on 6 June 2013 and ended on an unidentified date in the middle of September 2013, when the proceedings moved to the Nikulinskiy District Court of Moscow (see paragraph 25 above). The applicant lodged his complaint about his placement in glass cabins on 1 October 2013, shortly after the proceedings moved to a courtroom equipped with metal cages. The alleged ill-treatment owing to confinement in metal cages ceased on 21 February 2014, but the complaint about that treatment was not lodged until 2 September 2014.

47. The Court therefore considers that the applicant has missed the time-�limit for lodging his complaint under Article 3 of the Convention about his placement in metal cages. It must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Grishin v. Russia, no. 30983/02, § 83, 15 November 2007).

48. In contrast, the Court finds that the applicant has complied with the six-month rule as regards the complaint about being placed in glass cabins. It 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

49. The Court summarised the principles on confinement in glass cabins in Yaroslav Belousov (cited above, §§ 120-22). It examined the conditions of detention in hearing rooms no. 338 and 635 at the Moscow City Court, which were common to the applicant and his co-�defendants, including Mr Belousov (ibid, §§ 123-28), and found a violation in respect of issues identical to those in the present case. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion. Accordingly, there has been a violation of Article 3 of the Convention on account of the conditions of detention in hearing room no. 338 at the Moscow City Court, but no violation of Article 3 as regards the conditions of detention in hearing room no. 635.

IV. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

50. The applicant complained under Article 5 § 1 of the Convention that his pre-trial detention had not been based on a "reasonable suspicion" that he had committed a criminal offence. He also complained that his pre-trial detention had not been justified by "relevant and sufficient reasons", as required by Article 5 § 3 of the Convention. Article 5 of the Convention, in so far as relevant, reads as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

A. Admissibility

51. As regards the alleged unlawfulness of the applicant's detention, the Court notes that the court which ordered that measure was the Basmannyy District Court of Moscow and that it subsequently extended it on several occasions. After the case had been sent for trial, the detention order was issued by the Zamoskvoretskiy District Court of Moscow. The domestic courts acted within their powers in making those decisions and there is nothing to suggest that they were invalid or unlawful under domestic law. Accordingly, the applicant's detention was imposed and extended in accordance with a procedure prescribed by law.

52. As regards the allegation that the applicant's detention was not based on a reasonable suspicion that he had committed criminal offences, his complaint under Article 5 § 1 of the Convention overlaps to a large extent with his complaint under Article 5 § 3 of a failure by the authorities to adduce relevant and sufficient reasons justifying the extensions of his detention pending the criminal proceedings. The Court reiterates that while Article 5 § 1 (c) of the Convention is mostly concerned with the existence of a lawful basis for detention within criminal proceedings, Article 5 § 3 of the Convention deals with the possible justification for such detention. Moreover, according to the Court's established case-law under the latter provision, the persistence of a reasonable suspicion is a sine qua non for the validity of continued detention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 87, ECHR 2016 (extracts)). The Court therefore deems it more appropriate to deal with this complaint under Article 5 § 3 of the Convention (see Khodorkovskiy v. Russia, no. 5829/04, § 165, 31 May 2011; Taranenko v. Russia, no. 19554/05, § 46, 15 May 2014; and Kovyazin and Others v. Russia, nos. 13008/13, 60882/12 and 53390/13, § 71, 17 September 2015).

53. Furthermore, the Court finds that the applicant's complaint of a violation of Article 5 § 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this part of the application is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

54. The parties made essentially the same submissions under Article 5 of the Convention as in Kovyazin and Others (cited above, §§ 73-74). The relevant general principles applicable in this case were summarised by the Court in that judgment (ibid., §§ 75-78).

55. The period of detention to be taken into consideration in this case started on 8 June 2012, the date of the applicant's arrest, and ended on 21 February 2014, when he was convicted. Accordingly, the period in question is one year and eight months. Having regard to the considerable length of detention in the light of the presumption in favour of release, the Court finds that the Russian authorities were required to put forward very weighty reasons for maintaining that measure against the applicant.

56. It can be seen from the applicant's detention orders and the Government's observations that the primary reason for his detention was the gravity of the charges. Firstly, the domestic courts considered that the applicant, faced with the risk of prison, was likely to abscond, influence witnesses, or interfere with the administration of justice. Secondly, they seemed to suggest that the very nature of the offences in question, together with information about the applicant's character, made it likely that he would reoffend and obstruct the course of the criminal proceedings. In addition, the courts dismissed his requests for an alternative preventive measure on the grounds that no other measure could secure the course of justice in the case.

57. The Court has previously examined similar complaints lodged by the applicant's co-defendants and found a violation of their rights set out in Article 5 § 3 of the Convention (see Kovyazin and Others, cited above, §§ 82-94, and Yaroslav Belousov, cited above, §§ 133-38). The Court noted, in particular, the domestic courts' reliance on the gravity of the charges as the main factor for the assessment of the potential to abscond, reoffend or obstruct the course of justice, and their reluctance to pay proper attention to a discussion of each applicant's personal situation or to have proper regard to factors pointing in favour of release. It also noted the use of collective detention orders, without a case-by-case assessment of the grounds for detention, in respect of each co-defendant and a failure to thoroughly examine the possibility of applying a less rigid measure of restraint, such as bail.

58. Having regard to the material in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Indeed, the specific offence imputed to the applicant - shouting anti-governmental slogans (classified as a grave offence) and throwing a piece of tarmac at the police officer, causing no lasting harm (classified as a medium-gravity offence) - was not in itself of such gravity as to justify pre-trial detention, especially at an advanced stage of the proceedings (see Kovyazin and Others, cited above, § 84, and the cases cited therein). Moreover, the applicant's detention was extended by the same collective orders as those of his co-defendants, without any individual assessment of his situation (ibid., §§ 92-93).

59. There has accordingly been a violation of Article 5 § 3 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

60. The applicant submitted a number of complaints under Article 6 of the Convention referring to various aspects of his trial. He referred to his confinement in glass cabins during the court hearing, the intensive schedule of hearings, and alleged that he had not had adequate time and facilities for the preparation of his defence. He further submitted that he had not been able effectively to defend himself owing to a lack of possibilities to consult his legal counsel in confidence during the trial. The applicant relied on Article 6 §§ 1 and 3 (b) and (c) of the Convention, which, in so far as relevant, reads as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...

3. Everyone charged with a criminal offence has the following minimum rights ...

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ..."

61. The Government submitted that the applicant had failed to raise the complaints under Article 6 of the Convention before the appellate court. The applicant argued that he had exhausted domestic remedies in respect of those complaints.

62. The Court has previously held that the appeal instance was capable of providing an effective remedy for the alleged violation of Article 6 of the Convention in the case of the applicant's co-defendant (see Yaroslav Belousov, cited above, § 141). It notes that the applicant did not include these complaints in his points of appeal as grounds for his application to reverse the first-instance judgment. Accordingly, he did not provide the domestic courts with the opportunity of addressing the particular Convention violation alleged against the State. These complaints must therefore be declared inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention.

VI. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

63. The applicant alleged that there had been a violation of his rights to freedom of expression and to freedom of peaceful assembly. He complained, in particular, that disruptive security measures had been implemented at the site of the meeting at Bolotnaya Square. He further argued that his ensuing prosecution and criminal conviction for participation in acts of mass disorder had been arbitrary and disproportionate. The applicant relied on Articles 10 and 11 of the Convention, which read as follows:

Article 10

"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

"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

64. The Government alleged that the applicant had not brought any complaints before the domestic courts about the general actions of the police to safeguard public order during the assembly. They therefore asked the Court to declare this part of the application inadmissible on the grounds of a failure to exhaust domestic remedies or to comply with the six-month time-limit.

65. The applicant contended that he had complied with the admissibility criteria for this complaint.

66. The Court observes that the applicant in the present case was convicted of perpetrating acts of mass disorder, which were the acts which interrupted the assembly. Attribution of responsibility for those acts was therefore a central question in the determination of the applicant's criminal charges. In those circumstances, his complaint about the authorities' role in the occurrence of the disorder is inseparable from that concerning the lack of justification for the applicant's criminal liability. For that reason, the Court is not required to assess the authorities' alleged failure to discharge their positive obligation in respect of the conduct of the assembly at Bolotnaya Square as a separate issue under Article 11 of the Convention. It will examine whether the measures taken against the applicant personally complied with that provision in the light of all the material submitted by the parties concerning the planning, conduct and dispersal of the assembly (see Yaroslav Belousov, cited above, § 158, and cf. Frumkin, cited above, §§ 100-01 and 134, where a separate issue was distinguished in relation to a protester not accused of participation in acts of mass disorder). There is therefore no need to examine whether the applicant has complied with the admissibility criteria as regards the complaint about the general actions of the police in relation to the assembly.

67. The Court notes that the complaint about the applicant's prosecution and criminal conviction, lodged under Articles 10 and 11 of the Convention, 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

68. The Government's submissions on the merits of the case were identical to those in Yaroslav Belousov (cited above, §§ 160-63).

69. The applicant submitted that he was a peaceful, law-abiding individual who had not planned to take part in acts of mass disorder. He had gone on 6 May 2012 to take part in a peaceful meeting which had been authorised by the Moscow authorities. He pointed out that the officially published map of the assembly had indicated that the meeting venue would include the park at Bolotnaya Square and that the authorities had not given notice to participants of a change in the venue's layout. The unexpected placement of the police cordon near Malyy Kamennyy Bridge had narrowed the access route to the meeting venue, which had caused confusion and overcrowding in that area. The applicant alleged that the episodes of disorderly behaviour and clashes between the protesters and the police had been caused by the unannounced change of plan. Another reason had been the authorities' refusal to redeploy police officers so as to end the blockage of people and stop the panic among the protesters.

2. The Court's assessment

(a) The scope of the applicant's complaints

70. The Court notes that in the circumstances of the case Article 10 of the Convention is to be regarded as a lex generalis in relation to Article 11 of the Convention, a lex specialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202, and Kasparov and Others v. Russia, no. 21613/07, §§ 82-�83, 3 October 2013). Accordingly, the Court will examine this complaint under Article 11 of the Convention.

71. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 of the Convention must, in the present case, also be considered in the light of Article 10 of the Convention. The protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (see Ezelin, cited above, § 37).

(b) Whether there has been an interference with the exercise of the right to freedom of peaceful assembly

72. The Court has previously held that the assembly at Bolotnaya Square on 6 May 2012 fell within the scope of Article 11 of the Convention (see Yaroslav Belousov, cited above, §§ 168-71). As regards the applicant personally, it does not transpire from the description of his offences that he was among those responsible for the initial acts of aggression which contributed to the deterioration of the assembly's initial peaceful character. Accordingly, he enjoyed the protection of Article 11 of the Convention. The Court also finds that the applicant's prosecution and criminal conviction for participation in mass disorder constituted an interference with the exercise of the freedom of assembly.

(c) Whether the interference was "prescribed by law", pursued a legitimate aim and was "necessary in a democratic society"

73. The parties made essentially the same submissions on the lawfulness of the interference as in Yaroslav Belousov (cited above, § 173). The Court sees no reason to reach a different conclusion in this case (ibid., §§ 174-75). It finds that the applicant's pre-trial detention and prosecution was lawful, and pursued the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others.

74. As to whether the applicant's criminal conviction was "necessary in a democratic society", the Court notes that he was found guilty of two criminal offences, namely participation in acts of mass disorder (Article 212 of the Criminal Code) and committing violent acts against a police officer (Article 318 of the Criminal Code). He was sentenced to three years and six months' imprisonment under those provisions for, throwing pieces of tarmac at the police, one of which hit a police officer on the hand, breaking his finger, which did not endanger the latter's life or health, and chanting anti-government slogans while attending an authorised public assembly.

75. The Court reiterates that when individuals are involved in acts of violence the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of assembly, and the imposition of a sanction for such reprehensible acts would be considered to be compatible with the guarantees of Article 11 of the Convention (see, Gülcü v. Turkey, no. 17526/10, § 116, 19 January 2016, and the cases cited therein). In this case, the Court notes that the first-instance court did not verify the applicant's account of events. In particular, it rejected his statement that he had not thrown pieces of tarmac or inflicted K.'s injury as unsubstantiated, while refusing to question a defence witness, Officer Sh., who could have confirmed the applicant's statements. The appellate court did not address those drawbacks, despite the applicant's complaint. In those circumstances it cannot be said that the applicant enjoyed a procedural safeguard against arbitrary interference with the rights guaranteed by Articles 10 and 11 of the Convention in the domestic proceedings (ibid., § 114). In any event, even assuming that the prison sentence of one year and four months under Article 318 of the Criminal Code for using violence against a public official was justified, it is noteworthy that it was more lenient than the partly concurrent three-year prison sentence for participation in acts of mass disorder.

76. The main justification advanced by the Government for such a harsh sentence was the serious risk of civil unrest existing at the time, in particular that there was a threat to political stability and public order. The gravity of the punishment was thus attributable to the general context of the applicant's assault on the policeman, not to the harm he thus inflicted. As stated above, causing injury to Police Officer K. entailed a sentence of one year and four months. Regard being had to the other acts imputed to the applicant, it transpires that his staying at the site of the rally and chanting anti-government slogans accounted for an additional two years and two months to his prison term under Article 212 of the Criminal Code. Those acts, unlike throwing pieces of tarmac (already imputed under Article 318 of the Code), were peaceful and constituted an act of protest, a form of expression protected by Article 10 of the Convention (see Taranenko, cited above, § 70, and the cases cited therein). If the domestic courts had taken into account the fact that the applicant had chanted slogans in connection with the exercise of freedom of expression and freedom of assembly, they might have considered it a mitigating factor. On the contrary, they penalised the applicant for the political message he had intended to express by his presence at the venue and his chanting of non-violent political slogans.

77. In assessing the severity of the sanction for participation in mass disorder, an important factor for the Court is that the criminal file did not suggest any pre-existing intention by the applicant to participate in such acts. Just as in Yaroslav Belousov (cited above, § 179), there is nothing in the case file to suggest that the applicant was among those responsible for the onset of clashes between the protesters and the police. As far as can be discerned from the indictment, the applicant threw pieces of tarmac at the height of the clashes, when the police were already arresting protesters. The overall conduct imputed to the applicant, although involving violence, was sporadic in nature and did not attain the degree of aggression which the Court found in other cases to amount to violence calling for resolute measures, in particular the subsequent sentencing of protesters to lengthy prison terms (see, by contrast, Osmani and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001, and Primov and Others v. Russia, no. 17391/06, §§ 156-63, 12 June 2014).

78. Given the applicant's minor role in the assembly and the fact that he had an incidental involvement in the clashes, the Court does not consider that the risks referred to by the Government - potential civil unrest, political instability and a threat to public order - had any personal relation to him. While the Court does not endorse the applicant's violent behaviour and reiterates that the State authorities enjoy a wider margin of appreciation in sanctioning such actions (see Gülcü, cited above, § 116, and Taranenko, cited above, §§ 81-97), it considers that the reasons advanced by the Government could not justify a three-�year prison sentence for participation in acts of mass disorder under Article 212 of the Criminal Code. The Court considers that there was no "pressing social need" to give the applicant a sentence of that duration, in addition to sentencing him for the assault on the policeman.

79. It must be stressed, moreover, that the applicant's criminal conviction, and especially the severity of his sentence, must have had the effect of discouraging him and other opposition supporters, as well as the public at large, from attending demonstrations and, more generally, from participating in open political debate. The chilling effect of the sanction imposed on him was further amplified by the large-scale proceedings in the case, which attracted widespread media coverage.

80. In view of the severity of the sanction imposed on the applicant, the Court concludes that his criminal conviction was a measure that was disproportionate to the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others, and that it was therefore not necessary in a democratic society.

81. There has accordingly been a violation of Article 11 of the Convention.

VII. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

82. The applicant complained under Article 18 of the Convention that the criminal proceedings against him had pursued the aim of undermining his right to freedom of assembly. The Court considers that this complaint falls to be examined under Article 18 in conjunction with Article 11 of the Convention. Article 18 of the Convention reads as follows:

"The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."

83. In their submissions under this head the parties reiterated their arguments as regards the alleged interference with the right to freedom of assembly.

84. The Court notes that this complaint is linked to the complaints examined above under Articles 11 of the Convention and must therefore likewise be declared admissible.

85. It has found above that the applicant's pre-trial detention and prosecution were not necessary in a democratic society and that that had had the effect of preventing or discouraging him and others from participating in protest rallies and engaging actively in opposition politics (see paragraphs 78-80 above).

86. Having regard to those findings, the Court considers that the complaint under Article 18 in conjunction with Article 11 of the Convention raises no separate issue and it is not necessary to examine whether, in this case, there has been a violation of that provision.

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

87. 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

88. The applicant claimed 1,100,000 euros (EUR) in respect of non-�pecuniary damage.

89. The Government contested the claim as excessive.

90. The Court observes that it has found violations of Articles 3, 5 and 11 of the Convention in respect of the applicant. In those 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 awards the applicant EUR 12,500 in respect of non-�pecuniary damage.

91. Furthermore, the Court observes that although the applicant has already been released after serving his sentence, he might still face negative consequences resulting from his disproportionately severe criminal conviction. The obligation to comply with the present judgment would thus require the adoption of other measures in addition to the payment of the just satisfaction awarded by the Court, which is only designed to make reparation for such consequences of a violation that cannot otherwise be remedied (see Savriddin Dzhurayev v. Russia, no. 71386/10, § 252, ECHR 2013 (extracts). It will be thus for the respondent State to take appropriate measures to redress the effects of any past or future damage for the applicant as a result of his disproportionate sentencing which the Court has found to be in breach of the Convention (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). In this context, the Court reiterates that while the respondent State in principle remains free to choose the means by which it will comply with this obligation, it is for the Committee of Ministers to assess whether those means are compatible with the conclusions set out in the Court's judgment and consistent with the approach adopted by the Convention organs in similar cases (see, for example, Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-�I, and the Resolution of the Committee of Ministers ResDH(2010)63 of 3 June 2010 on the execution of the judgment in Odabaşı and Koçak v. Turkey, no. 50959/99, 21 February 2006).

B. Costs and expenses

92. The applicant did not submit any claims under this head. Accordingly, there is no call to award him any sum on that account.

C. Default interest

93. 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

1. Decides, unanimously, to join the applications;

2. Declares, unanimously, the complaints raised under Article 3 of the Convention concerning the conditions of transfer and the placement in glass cabins in the courtrooms, and under Articles 5, 10, 11 and 18 of the Convention admissible and the remainder of the applications inadmissible;

3. Holds, unanimously, that there has been a violation of Article 3 of the Convention in respect of the conditions of transfer to and from court;

4. Holds, unanimously, that there has been a violation of Article 3 of the Convention on account of the confinement in a glass cabin in hearing room no. 338 at the Moscow City Court;

5. Holds, unanimously, that there has been no violation of Article 3 of the Convention on account of the confinement in a glass cabin in hearing room no. 635 at the Moscow City Court;

6. Holds, unanimously, that there has been a violation of Article 5 § 3 of the Convention;

7. Holds, by six votes to one, that that there has been a violation of Article 11 of the Convention;

8. Holds, unanimously, that there is no need to examine the complaints under Article 18 of the Convention;

9. Holds

(a) by six votes to one, that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) unanimously, that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

10. Dismisses, unanimously, the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 30 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.

H.J.
F.A.

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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> STEPAN ZIMIN v. RUSSIA - 63686/13 (Judgment : Article 3 - Prohibition of torture : Third Section) [2018] ECHR 110 (30 January 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/110.html Cite as: ECLI:CE:ECHR:2018:0130JUD006368613, [2018] ECHR 110, CE:ECHR:2018:0130JUD006368613