CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 6 octobre 2020

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RUSSIA (Applications nos. 66856/14 and 33606/15)           JUDGMENT     STRASBOURG 6 October 2020         This judgment is final but it may be subject to editorial revision.   In the case of Karelskiy and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Helen Keller, President,   María Elósegui,   Ana Maria Guerra Martins, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the applications (nos.   66856/14 and 33606/15) 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 ten Russian nationals (“the applicants”), on the dates indicated in the Appendix; the decision to give notice of the applications to the Russian Government (“the Government”); the parties’ observations; Having deliberated in private on 15 September 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     On 21   February 2014 the applicants participated in a spontaneous gathering in front of the Zamoskvoretskiy District Court of Moscow where they came to attend a public hearing involving activists who were on trial in relation to mass disorders at Bolotnaya Square in Moscow on 6   May 2012. They were arrested during the gathering and convicted of administrative offences. THE FACTS 2.     The applicants’ details are set out in the appended table. The nine applicants in application no. 66856/14 were represented before the Court by the lawyers of the Memorial Human Rights Centre, the Public Verdict Foundation and the European Human Rights Advocacy Centre (EHRAC). The applicant in application no.   33606/15 was represented by the lawyers of the Memorial Human Rights Centre and EHRAC. 3.     The Russian Government (“the Government”) were represented initially by Mr   G.   Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr   M.   Galperin. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     On the morning of 21 February 2014 the applicants, among several hundred people, came to the Zamoskvoretskiy District Court of Moscow to attend the public delivery of the judgment in the criminal case concerning mass disorder at Bolotnaya Square in Moscow on 6 May 2012. However, the court-house was cordoned off by the police and the applicants could not enter. The police officers did not explain the reasons for not allowing the public into the building. 6.     The applicants remained outside among other members of the public aspiring to attend the hearing. The gathering lasted for several hours and was peaceful. From time to time the police arrested some of the participants, and every time those present at the site responded by shouting “Shame on the police”. Occasionally someone would shout slogans such as “Freedom for the 6 May prisoners”, “Freedom for political prisoners” and “Russia without Putin”. A handful of banners with handwritten messages in support of the activists on trial were displayed. At different times the applicants were arrested and transferred to a police station. 7.     Details as regards the administrative proceedings against each applicant are outlined in the Appendix. RELEVANT LEGAL FRAMEWORK 8.     Article 20.2 § 5 of the Code of Administrative Offences (CAO) provides that violation by a participant in a public event of the established procedure for conducting a public event is punishable with a fine of 10,000 to 20,000 roubles (RUB) or up to forty hours of community work. 9.     For a summary of other relevant domestic provisions see Navalnyy v.   Russia [GC] (nos. 29580/12 and 4 others, §§ 46-47, 15   November 2018), and Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§   223 and 226, 7   February 2017). 10.     The domestic legal provisions governing administrative transfer (escorting) and detention are also set out in the case of Butkevich v.   Russia (see no.   5865/07, §§   33-36, 13   February 2018). 11.     According to Article 31.9 of the Code of Administrative Offences, if a decision imposing an administrative punishment is not enforced during the two years from its entry into force, it can no longer be executed. The time when the enforcement of such a decision is suspended or stayed is excluded from the aforementioned period. THE LAW JOINDER OF THE APPLICATIONS 12.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 13.     The applicants complained of disproportionate measures taken against them as participants of a peaceful public assembly, namely their arrest followed by their transfer to the police station and conviction for an administrative offence. They relied on Articles 10 and 11 of the Convention. However, this falls to be examined under Article 11, which reads as follows: “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.” 14.     The Court notes that the gathering in question was similar to the one examined in Navalnyy v.   Russia [GC] (nos. 29580/12 and 4 others, §§   110 ‑ 12, 15   November 2018) and considers that it fell within the scope of Article 11 of the Convention. It also finds that the applicants’ arrests, transfer to the police station and the ensuing sanctions constituted an interference with the right to freedom of peaceful assembly under Article   11 § 2. 15.     The Government relied on the provisions of the Public Events Act (section 8) prohibiting public gatherings in the vicinity of court buildings. However, the Court has previously found that the provisions in question did not meet the “quality of law” requirement. Taking into account the absolute nature of the ban, coupled with the local executive authorities’ wide discretion in determining what is considered to be “in the immediate vicinity” of court buildings, it considered that the general ban on holding public events in the vicinity of court buildings was so broadly drawn that it could not be accepted as compatible with Article 11 §   2 (see Lashmankin and Others v. Russia , nos. 57818/09 and 14 others, §§   440 ‑ 41, 7   February 2017). 16.     Furthermore, the applicants in the present case were convicted under Articles 19.3 § 1 (failure to comply with a lawful order of an official in connection with the exercise of his duties) and 20.2 §   5 (violation by a participant of the procedure for a public event) of the Code of Administrative Offences (“the CAO”) with reference to the failure to notify the authorities of the public gathering in accordance with the procedure prescribed by sections 5 and 7 of the Public Events Act. The proximity to the courthouse and the related ban set out in section 8 were not cited in the relevant domestic decisions. It follows that the applicants were arrested, transferred to the police station and charged with administrative offences for the sole reason that their gathering as such had not been authorised. 17.     The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v.   Lithuania [GC], no.   37553/05, ECHR 2015, with further references) and the proportionality of interference with it (see Oya Ataman v.   Turkey , no.   74552/01, ECHR 2006 ‑ XIV, and Hyde Park and Others v.   Moldova , no.   33482/06, 31 March 2009). 18.     In the leading cases (see, for example, Frumkin v.   Russia , no.   74568/12, 5   January 2016; Navalnyy and Yashin v.   Russia , no.   76204/11, 4   December 2014; and Kasparov and Others v.   Russia , no.   21613/07, 3   October 2013), the Court already found a violation in respect of issues similar to those in the present case. 19.     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 as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the measures applied to the applicants as peaceful participants in the public assembly did not correspond to a pressing social need and were thus not necessary in a democratic society. 20.     These complaints are therefore admissible and disclose a breach of Article 11 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE LAW 21.     The applicants submitted other complaints which also raised issues under Articles 5 and/or 6 of the Convention, given the relevant well ‑ established case-law of the Court. These complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. They must therefore be declared admissible. 22.     Having examined all the material before it, the Court concludes that these remaining complaints also disclose violations of Articles 5 and 6 of the Convention, as indicated in the appended table, in the light of its findings in Vyerentsov v. Ukraine (no.   20372/11, §§ 81-83, 11   April 2013); Karelin v.   Russia (no. 926/08, §§ 60-84, 20 September 2016); and Lashmankin and Others (cited above, §§   486 ‑ 92). 23.     As regards Article 5 § 1, the finding of a violation relates to the arbitrary character of the applicants’ arrests on 21   February 2014. Having reached this conclusion, in the circumstances of this case the Court does not consider it necessary to examine some of the applicants’ allegations that their detention on that day exceeded the statutory limit of three hours (see the appended table). 24.     As regards Article 6 § 1, the complaints relying on this provision disclose a violation of the impartiality requirement on account of the absence of a prosecuting party (see the appended table). The Court notes that many of the applicants also complained under Article 6 §   1 about their convictions being based exclusively on the evidence submitted by the police officers and/or under Article 6 § 3   (d) of the Convention about their alleged inability to cross-examine the police officers on whose written statements their conviction was based. The Court considers that as it has already concluded that the administrative proceedings, taken as a whole, were conducted in violation of the right to a fair hearing, it is not necessary to address the remainder of the applicants’ complaints under Article 6 §§   1 and 3   (d) of the Convention (see Frumkin , cited above, §   168). APPLICATION OF ARTICLE   41 OF THE CONVENTION 25.     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.” Damage 26.     The applicants requested that the amount of non ‑ pecuniary damages be determined by the Court. 27.     As regards pecuniary damage, some of the applicants claimed the amounts of the administrative fines paid by them (see the appended table). Other applicants did not submit any pecuniary damage claims because they did not pay the fines. They requested the Court to find that any attempt to enforce the domestic decisions ordering them to pay the fines would violate Article 11 of the Convention. 28.     The Government submitted that the award of just satisfaction, if the Court finds a violation of the Convention, must be in accordance with the Court’s well-established case-law. 29.     Regard being had to the documents in its possession, the absence of the Government’s objections to these claims and to its case ‑ law concerning violations of Article 11 on account of arbitrary arrests at peaceful assemblies, the Court considers it reasonable to award the applicants 5,000   euros (EUR) each in respect of non-pecuniary damage, plus any tax that may be chargeable, and the amounts indicated in the appended table in respect of pecuniary damage, plus any tax that may be chargeable. 30.     As regards the applicants who submitted that they had not paid the fines the Court notes that a decision ordering an administrative punishment is enforceable during two years from the time when the decision became final (see above). This period would normally have expired in 2016-2017 in respect of the applicants concerned. In the absence of any information as to enforcement of the relevant domestic decisions and, in particular, stay or suspension of their enforcement, the Court assumes that the decisions will not be enforced. Costs and expenses 31.     The applicants claimed the following amounts in respect of costs and expenses, including legal fees incurred by the applicants in the domestic proceedings and before the Court, the administrative expenses and the translation costs, itemised in the documents they have submitted: -     EUR 6,540 payable to the Public Verdict Foundation on account of the work performed by it; -     EUR 15,969 and 3,055 pounds sterling (GBP, approximately EUR   3,400) payable to EHRAC on account of the work performed by EHRAC and the Memorial Human Rights Centre. 32.     The Government did not comment on these claims. 33.     According to the Court’s case-law, an applicant is entitled to the reimbursement of 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. Regard being had to the documents in its possession, the number of represented applicants, to its case-law and the repetitive nature of the legal issues examined in this case, the Court awards the applicants jointly EUR   9,350 in respect of costs and expenses (representing the joint award of EUR 8,500 in respect costs and expenses incurred by ten applicants in the domestic proceedings plus EUR 850 for their joint representation before the Court), plus any tax that may be chargeable on the applicants. This award is to be paid into the representatives’ bank accounts, if necessary divided as indicated by the applicants. Default interest 34.     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, Decides to join the applications; Declares the applications admissible; Holds that there has been a violation of Article 11 of the Convention in respect of all applicants; Holds that there has been a violation of Articles 5 and 6 of the Convention as regards the other complaints raised under the well ‑ established case-law of the Court (see the appended table); Holds that there is no need to examine the complaints under Article   5   §   1 of the Convention concerning deprivation of liberty in excess of three hours and the complaints under Article 6 §§ 1 and 3   (d) of the Convention concerning the assessment of evidence and cross-examination of certain witnesses (see the appended table); Holds (a)   that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, except in relation to the part of costs and expenses payable to EHRAC, which is to be paid in euros: (i)   the amounts indicated in the appended table, plus any tax that may be chargeable, in respect of pecuniary damage; (ii)   EUR 5,000 (five thousand euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii)   EUR   9,350 (nine thousand three hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses jointly, to be paid into the representatives’ bank accounts, as indicated by the applicants; (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; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 6 October 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Olga Chernishova   Helen Keller Deputy Registrar   President APPENDIX No. Application no. and date of introduction Applicant name Date of birth Place of residence Nationality Charge and penalty Russian roubles Final domestic decision details Other complaints under well-established case-law (i)   admissible and disclosing a violation (ii) not necessary to examine   Amount awarded for pecuniary damage per applicant     66856/14* 02/10/2014   Aleksey Albertovich KARELSKIY 1969 Moscow Russian       Article 20.2 § 5 of the CAO Administrative fine RUB 10,000   Appeal decision Moscow City Court 02/04/2014 (i) Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.   Russia , no. 926/08, 20   September 2016).   (ii) Art. 6 § 1 – the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the applicant’s statements and his evidence; Art. 6 § 3 (d) – the courts refused to call prosecution witnesses, namely the police officers who testified that they had seen the applicant among the protesters and the police officers who had arrested him.   Not claimed Dmirtiy Albertovich KARELSKIY 1967 Moscow Russian   Article 20.2 § 5 of the CAO Administrative fine RUB 10,000   Appeal decision Moscow City Court 18/04/2014   (i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of the administrative offence (see Lashmankin and Others v.   Russia , nos. 57818/09 and 14 others, §§   486 ‑ 92, 7   February 2017); Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.   Russia , no. 926/08, 20   September 2016).   (ii) Art. 5 § 1 – unlawful detention for more than four hours; Art. 6 § 1 – the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the applicant’s statements and his evidence; Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant. Not claimed Arseniy Vladimirovich MIKAELYAN 1971 Bolshiye Vyazemy Russian Article 20.2 § 5 of the CAO Administrative fine RUB 10,000   Appeal decision Moscow City Court 18/04/2014     (i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of the administrative offence (see Lashmankin and Others v.   Russia , nos. 57818/09 and 14 others, §§   486 ‑ 92, 7   February 2017); Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.   Russia , no. 926/08, 20   September 2016).   (ii) Art. 5 § 1 – unlawful detention for more than four hours; Art. 6 § 1 –the courts based their findings exclusively on the evidence submitted by the police officers and refused to call a defence witness; Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant. Not claimed Vasiliy Yuryevich ZHARKOY 1989 Moscow Russian   Article 20.2 § 5 of the CAO Administrative fine RUB 10,000   Appeal decision Moscow City Court 02/04/2014     (i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of the administrative offence (see Lashmankin and Others v.   Russia , nos. 57818/09 and 14 others, §§   486 ‑ 92, 7   February 2017); Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.   Russia , no. 926/08, 20   September 2016).   (ii) Art. 5 § 1 – unlawful detention for five hours. Art. 6 § 1 –the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the applicant’s statements and his evidence. Art. 6 § 3 (d) – the courts refused to call the police officers who had arrested the applicant.     Not claimed Levon Tigranovich AMATUNI 1990 Moscow Russian   Article 20.2 § 5 of the CAO Administrative fine RUB 5,000   Appeal decision Moscow City Court 12/05/2014   (i) Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.   Russia , no. 926/08, 20   September 2016).   (ii) Art. 6 § 1 – the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the applicant’s statements and his evidence; Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant.     EUR   101 (one hundred and one euros) Pavel Garriyevich BARDIN 1975 Moscow Russian   Article 20.2 § 5 of the CAO Administrative fine RUB 10,000   Appeal decision Moscow City Court 28/04/2014   (i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of the administrative offence (see Lashmankin and Others v.   Russia , nos. 57818/09 and 14 others, §§   486 ‑ 92, 7   February 2017); Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.   Russia , no. 926/08, 20   September 2016).   (ii) Art. 5 § 1 – unlawful detention for three and a half hours while being escorted to the police station; Art. 6 § 3 (d) – the appellate court refused to call the police officers who had arrested the applicant.       EUR   202 (two hundred and two euros) Aleksey Valeryevich MAKSIMOV 1976 Domodedovo Russian Article 20.2 § 5 of the CAO Administrative fine RUB 10,000   Appeal decision Moscow City Court 14/05/2014 (i) Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.   Russia , no. 926/08, 20   September 2016).   EUR   202 (two hundred and two euros) Sergey Borisovich PARKHOMENKO 1964 Moscow Russian     Article 20.2 § 5 of the CAO Administrative fine RUB 10,000   Article 19.3 § 1 of the CAO Administrative fine RUB 500 Appeal decision Moscow City Court 12/05/2014     Appeal decision Moscow City Court 12/05/2014 (i) Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.   Russia , no. 926/08, 20   September 2016).       (ii) Art. 6 § 3 (d) – the first-instance court refused to call the police officers who had arrested the applicant and who had drawn up the administrative reports (proceedings concerning charges under Art. 19.3 of the CAO).   EUR   215 (two hundred and fifteen euros) Yevgeniy Aleksandrovich PETRENKO 1959 Moscow Russian Article 20.2 § 5 of the CAO Administrative fine RUB 10,000   Appeal decision Moscow City Court 28/04/2014   (i) Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.   Russia , no. 926/08, 20   September 2016).   (ii) Art. 6 § 3 (d) – the appellate court refused to call the police officers who had arrested the applicant.   EUR   202 (two hundred and two euros)     33606/15 19/06/2015   Maksim Vladimirovich ZAMARAYEV 1974 Moscow Russian   Article 20.2 § 5 of the CAO Administrative fine RUB 10,000   Appeal decision 28/01/2015 Moscow City Court (i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of administrative offence (see Lashmankin and Others v.   Russia , nos. 57818/09 and 14 others, §§   486 ‑ 92, 7   February 2017); Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v.   Russia , no. 926/08, 20   September 2016).   (ii) Art. 5 § 1 – unlawful arrest and detention for five hours; Art. 6 § 1 – the courts based their findings exclusively on the evidence submitted by the police officers and dismissed the applicant’s evidence; Art. 6 § 3 (d) – the courts refused to call the police officers who had arrested the applicant. EUR   202 (two hundred and two euros)