European Court of Human Rights

Information Note on the Court’s case-law No. 167

October 2013

Kasparov v. Russia - 21613/07

Judgment 3.10.2013 [Section I] See: [2013] ECHR 911

Article 11

Article 11-1

Freedom of peaceful assembly

Imposition of administrative fine for participating in an unauthorised yet peaceful demonstration: violation

 

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Refusal to call defence witnesses to clarify an uncertain situation which constituted basis of charges: violation

 

Facts - In April 2007 an anti-government demonstration consisting of a meeting in a delimited area was authorised to take place in Moscow. However, permission for a march after the meeting was refused. The case concerned in particular a series of arrests before the demonstration took place, in circumstances which were in dispute between the parties. The Government alleged that a group of some fifty people had gathered and started marching while shouting anti-government slogans. The police had arrested some members of the group, including the first eight applicants, when they had threatened to spill over into a designated high-security area. The applicants claimed that they had not staged a rally or tried to access an unauthorised zone. The first, second and fifth applicants alleged that they had been walking peacefully towards the venue of the meeting when they were arrested, while the remaining applicants denied any connection with the demonstration whatsoever. In assessing these opposing accounts, the trial judge fully accepted the police report on the grounds that the police were a party “with no vested interest” in the case. Consequently, on the same day, the first eight applicants were convicted of an administrative offence for having breached the regulations on holding demonstrations and ordered to pay a fine. Their appeals were unsuccessful.

Law - Article 6 § 1 (first to eighth applicants)

(a)  Applicability - The Government had argued that Article 6 was inapplicable to administrative proceedings. However, the offence the applicants were convicted of, although classified as “administrative” under Russian law, actually constituted a criminal offence for the purpose of the applicability of Article 6 according to the criteria set out in Engel and Others v. the Netherlands (5100/71 et al., 8 June 1976).

Conclusion: preliminary objection dismissed (unanimously)

(b)  Merits - The applicants’ conviction was primarily based on the assumption of them being in a particular place at a particular time. However, the circumstances surrounding the applicants’ arrest, such as the purpose of their being at the alleged place, the time of the alleged march and even the time and exact place of the arrest remained in dispute between the parties. The principle of equality of arms and the right to a fair trial implied that the applicants should have been afforded a reasonable opportunity to present their version of the events effectively before the domestic courts. Therefore, 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 had led to a limitation of the applicants’ defence rights incompatible with the guarantees of a fair hearing.

Conclusion: violation (unanimously)

Article 11 (first, second and fifth applicants) - Although the requirement, for reasons of public order and national security, for prior authorisation when holding public meetings was not a priori contrary to the spirit of Article 11, an unlawful situation such as the staging of a demonstration without prior authorisation did not justify an infringement of freedom of assembly. In particular, where unauthorised demonstrators did not engage in acts of violence, public authorities must show a certain degree of tolerance towards peaceful gatherings. As for the Government’s allegation that the applicants were trying to access an unauthorised zone, considering the modest size of the group and the undeniably peaceful character of the march, the Court was not persuaded that the threat of the marchers penetrating the security area was imminent. The Government’s argument 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 was inconsistent with the facts established by the domestic courts. The preparatory measures taken by the police should undoubtedly have enabled them to divert a march of this scale from the high-security area and, given the heavy police presence, it should have been possible to maintain public order and safety without resorting to arrests. It followed that the applicants had been arrested and charged with administrative offences for the sole reason that the authorities had perceived their demonstration as being unauthorised. The Government had thus failed to demonstrate that there had existed a “pressing social need” to arrest them. In these circumstances, the police’s forceful intervention was disproportionate and not necessary for the prevention of disorder.

Conclusion: violation (unanimously)

Article 41: EUR 10,000 each to the first, second and fifth applicants in respect of non-pecuniary damage. EUR 4,000 each to the third, fourth, sixth, seventh and eighth applicants in respect of non-pecuniary damage.

(See also Galstyan v. Armenia, 26986/03, 15 November 2007, Information Note 102; and Sergey Kuznetsov v. Russia, 10877/04, 23 October 2008, Information Note 112)

 

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