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URL: http://www.bailii.org/eu/cases/ECHR/2016/1098.html
Cite as: [2016] ECHR 1098, CE:ECHR:2016:1213JUD005198807, ECLI:CE:ECHR:2016:1213JUD005198807

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THIRD SECTION

CASE OF KASPAROV AND OTHERS v. RUSSIA (No. 2)

(Application no. 51988/07)

JUDGMENT

STRASBOURG

13 December 2016

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kasparov and Others v. Russia (no. 2),

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

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Dmitry Dedov,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 15 November 2016,

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

PROCEDURE

1. The case originated in an application (no. 51988/07) 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 seven Russian nationals (“the applicants”), on 27 November 2007. Their personal details are set out in the Appendix.

2. The first and second applicants were represented by Ms K. Moskalenko and Ms O. Mikhaylova, lawyers practising in Strasbourg and Moscow respectively. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicants complained that their arrest at a demonstration and subsequent detention had violated their rights to freedom of peaceful assembly, freedom of expression and liberty. They also alleged that the related administrative proceedings before the domestic courts had fallen short of the guarantees of a fair hearing.

4. On 14 November 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The first applicant is a former World Chess Champion. He and the other six applicants are political activists.

6. The facts of the case, as submitted by the parties, may be summarised as follows.

7. On 24 November 2007 a group of opposition politicians organised protests rallies in several Russian cities, including Moscow. They were part of a public campaign “[f]or the consolidation of democratic forces in order to defend the Constitution and the legal order” initiated before the Presidential elections in March 2008.

8. On that day the applicants attended a gathering on Academician Sakharov Prospekt, which had been organised by the second applicant and approved by the authorities. According to the applicants, at 3 p.m., at the end of the gathering, they started walking to the location of another authorised gathering which took place on Chistoprudnyy Boulevard between 2 p.m. and 4 p.m. The Government alleged that some 1,500 people took part in the procession, a figure contested by the applicants as grossly overestimated. It appears that on their way, which ran past Myasnitskaya Street, the applicants also intended to take a petition to the Central Electoral Committee. However, their route was blocked by the riot police and they were arrested, with excessive force allegedly being used against them.

9. At 3.45 p.m. the first and second applicants were taken to the Basmannyy District police station. A duty officer drew up an administrative offence statement (протокол об административном правонарушении) in respect of each of them on the basis of reports (рапорт) by police officers M. and U. The applicants were charged with breaching the established procedure for conducting public events and disobeying lawful police orders, offences under Articles 20.2 § 2 and 19.3 of the Code of Administrative Offences (протокол об административном задержании). Their administrative detention was ordered with reference to Article 27.3 of the Code. The first applicant was detained until 6.20 p.m. that evening, and the second applicant until an unspecified time on 26 November 2007.

10. Immediately after his release from detention the first applicant appeared before the Justice of the Peace of Circuit no. 382 of the Krasnoselskiy District of Moscow. According to the first applicant, members of the public who wanted to attend the hearing of his case were prevented from entering the court, which had been cordoned off by the riot police. He claimed that even his lawyers had experienced difficulties getting into court. He applied for the hearing to be adjourned until 26 November 2007 to allow him time to study the case file with his lawyer and prepare his defence. The hearing was adjourned, but only until 7.15 p.m. that evening.

11. The first applicant applied for six witnesses to be called and examined. These included four police officers and two eyewitnesses waiting outside the courthouse. He also requested that certain video and photographic material be admitted as evidence.

12. The Justice of the Peace examined police officers M. and U., who stated that after the public gathering the first applicant had participated in an unauthorised march down Myasnitskaya Street towards Chistoprudnyy Boulevard and had chanted “Down with Putin!”. The first applicant pleaded not guilty and disputed the police officers’ testimony and police reports. He testified that he had been arrested while walking alongside other people from one authorised gathering to another. When he had seen that the path had been blocked by the police he had turned back as ordered, but as he had walked away he had been arrested. He insisted that there had been no other way of complying with the police’s order to disperse than to turn back. He denied that there had been an organised march, or that he had called out to anyone to follow him.

13. On the same day the Justice of the Peace found the first applicant guilty of both charges, establishing that he had marched among some 1,500 people in what had constituted an unauthorised public event. She based her findings on M. and U.’s witness statements and written reports, the administrative offence statements in respect of two charges and the report on the administrative arrest. She dismissed the applicant’s testimony as false, finding that it contradicted the police officers’ testimony and reports, and that the latter were trustworthy because they had “no vested interest”. She sentenced the first applicant to five days’ administrative detention, noting that he had a previous conviction for a similar administrative offence.

14. On 26 November 2007 the same Justice of the Peace considered the administrative charges against the second applicant. He applied for six witnesses to be called and examined, including five police officers and one defence witness. The Justice of the Peace examined only police officer U., who gave essentially the same testimony as in the first applicant’s case. The second applicant pleaded not guilty and alleged that he had been arrested while walking from the authorised meeting to the metro station. As in the first applicant’s case, the Justice of the Peace based her findings on U.’s witness statements and the written police reports. She dismissed the second applicant’s testimony on the same grounds as in that case. She found him guilty of both charges and sentenced him to five days’ administrative detention.

15. On the same day the Meshchanskiy District Court of Moscow examined and dismissed appeals lodged by the first and second applicant.

16. The applicants served their sentences in detention centres for administrative offenders (спецприемник).

17. The other applicants were arrested in the same circumstances and were also convicted of administrative offences.

II. RELEVANT DOMESTIC LAW

18. For a summary of the relevant domestic law, see Kasparov and Others v. Russia (no. 21613/07, § 35, 3 October 2013), and Navalnyy and Yashin v. Russia (no. 76204/11, §§ 43-44, 4 December 2014).

THE LAW

I. COMPATIBILITY RATIONE PERSONAE OF THE APPLICATION IN RESPECT OF THE THIRD, FOURTH, FIFTH, SIXTH AND SEVENTH APPLICANTS

19. In their observations the Government questioned the representatives’ authority to represent the remaining applicants, only the first and second applicants having submitted powers of attorney authorising Ms Moskalenko and Ms Mikhaylova to represent them in the proceedings before the Court.

20. It is to be noted that the applicants lodged their application through their representatives, Ms Moskalenko and Ms Mikhaylova, and have never been directly in contact with the Court. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim(s) within the meaning of Article 34 of the Convention on whose behalf they purport to act. In the present case, the file contains no documents which indicate that the third, fourth, fifth, sixth and seventh applicants wished Ms Moskalenko and Ms Mikhaylova to lodge an application with the Court on their behalf. In the domestic proceedings they were represented by Ms P., who has neither been in contact with the Court nor delegated authority to Ms Moskalenko or Ms Mikhaylova.

21. Consequently, in the circumstances of the case, the application in so far as lodged in respect of the third, fourth, fifth, sixth and seventh applicants must be rejected as incompatible ratione personae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009; K.M. and Others v. Russia (dec.), no. 46086/07, §§ 29-30, 29 April 2010; Erişen and Others v. Turkey, no. 7067/06, §§ 29-30, 3 April 2012; and Lambert and Others v. France [GC], no. 46043/14, § 91, ECHR 2015 (extracts)).

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

22. The applicants complained that their arrest following a demonstration on 24 November 2007 and conviction for administrative offences had violated their rights to freedom of expression and freedom of peaceful assembly, guaranteed by Articles 10 and 11 of the Convention, which read:

Article 10 of the Convention (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 of the Convention (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

23. The Court notes that this part of application 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

24. The applicants argued that the authorities had interfered with their rights to freedom of peaceful assembly and freedom of expression in two ways. Firstly, their arrest on 24 November 2007 had allegedly prevented them from attending the gathering on Chistoprudnyy Boulevard, an event which had been authorised by the Moscow authorities. Secondly, their arrest and conviction for administrative offences had been a form of retribution for them expressing their political views at the opposition rally earlier on that day. They both contended that they had not planned a march after the gathering on Academician Sakharov Prospekt, and that they had been walking towards the next gathering when the riot police had obstructed their path and arrested them without giving them an opportunity to disperse. They complained that the courts had dismissed their evidence as false when they had refused to call and examine other witnesses or, as in the first applicant’s case, admit video recordings.

25. The Government considered that there had been no breach of Articles 10 § 2 or 11 § 2 of the Convention in the present case. They claimed that the applicants had attempted to conduct an unauthorised public march down Myasnitskaya Street, and that the police had lawfully demanded that they disperse, but they had continued marching and chanting political slogans. They had therefore had to be stopped and arrested. They considered that the penalty imposed on the applicants had been proportionate, given the flagrancy of the illegal conduct and the fact that they were repeat offenders.

2. The Court’s assessment

(a) The scope of the applicants’ complaints

26. The Court will examine this complaint under Article 11 of the Convention, interpreted in the light of Article 10 of the Convention, regard being had to its established case-law (see, among other authorities, Ezelin v. France, 26 April 1991, § 35, Series A no. 202, and Kasparov and Others, cited above, §§ 82-83).

(b) Whether there was interference with the exercise of the freedom of peaceful assembly

27. The Court considers in that connection that irrespective of whether the applicants were heading to a lawful public gathering, as they alleged, or were already in the process of conducting an unauthorised rally, as the Government claimed, their dispersal and arrest constituted an interference with their right of peaceful assembly, as did the ensuing administrative charges brought against them. The Court observes, moreover, that in the present case the Government did not dispute that there had been an interference with the right to peaceful assembly.

28. The Court observes that the measures taken against the applicants, in particular the interception of their march, or perceived march, their arrest, pre-trial detention and the administrative charges, were based on the finding that they had held an unauthorised demonstration and had not complied with the police’s orders to end it.

29. The Court would accept that even if the applicants had not intended to hold a march, the appearance of a large group of protestors walking in a cluster could reasonably be perceived as one (see Navalnyy and Yashin, cited above, § 56). It reiterates that an unlawful situation, such as the staging of a demonstration without prior authorisation, does not necessarily justify an interference with a person’s right to freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 150, ECHR 2015, and the cases cited therein). In particular, where 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 (see Oya Ataman v. Turkey, no. 74552/01, § 42, ECHR 2006-XIV; Bukta and Others v. Hungary, no. 25691/04, § 34, ECHR 2007-III; Fáber v. Hungary, no. 40721/08, § 49, 24 July 2012; Berladir and Others v. Russia, no. 34202/06, § 38, 10 July 2012; Malofeyeva v. Russia, no. 36673/04, §§ 136-37, 30 May 2013; and Kasparov and Others, cited above, § 91). Whether such a demonstration is objectionable and what, if any, measures it calls for on the part of the police should primarily depend on the seriousness of the nuisance it was causing (see Navalnyy and Yashin, cited above, § 62).

30. The present case is identical to several other Russian cases in which the Court found violations of Article 11 of the Convention because of the police stopping and arresting protestors for the sole reason that their demonstration as such had not been authorised, the formal unlawfulness of the demonstration being the main justification for the administrative charges (see Malofeyeva, §§ 136-39; Kasparov and Others, § 95; and Navalnyy and Yashin, § 65, all cited above).

31. As in those cases, the procession in the present case was undeniably peaceful, and so was the applicants’ conduct. However, the applicants’ march was dispersed and the applicants were arrested and sentenced to five days’ administrative detention without any assessment of the disturbance they had caused, merely because they had marched without authorisation and had allegedly ignored the police’s orders to stop. The Court finds no reason to distinguish the present case from those cited above, or to depart from its findings made therein. Even assuming that the applicants’ arrest and administrative sentence complied with domestic law and pursued one of the legitimate aims enumerated in Article 11 § 2 of the Convention - presumably, prevention of disorder - the Government have failed to demonstrate that there existed a “pressing social need” to interrupt the procession, arrest the applicants and, in particular, sentence them to a term of imprisonment, albeit a short one.

32. Moreover, the measures also had serious potential to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate. The chilling effect of the sanctions was further amplified by the fact that they targeted the first applicant, a well-known public figure, whose deprivation of liberty was bound to attract wide media coverage.

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

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

34. The applicants complained that their arrest had been arbitrary and unlawful. The second applicant also complained that his arrest and pre-trial detention pending the administrative proceedings from 24 to 26 November 2007 had not been justified. Article 5 § 1 of the Convention provides:

“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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) he lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

A. Admissibility

35. The Court notes that this part of application 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

36. The Government alleged that the applicants had disobeyed the police officers’ orders to stop the unauthorised march, and that it had been necessary to arrest them to put an end to their unlawful conduct and to take them to the police station so that an administrative offence report could be drawn up. Overall, they considered that the applicant’s deprivation of liberty had complied with domestic law and that all the requisite formalities, such as the issuing of a lawful detention order, had been fulfilled. They argued that the first applicant’s pre-trial detention had not exceeded three hours, and that the second applicant’s detention had been within the statutory time-limit of forty-eight hours.

37. The applicants maintained that it had not been necessary to arrest them in order to draw up the police report, and that after that had been done at the police station there had been no reason to remand them in custody pending the hearing before the Justice of the Peace.

2. The Court’s assessment

38. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive factor. The Court must also be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent individuals from being deprived of their liberty in an arbitrary fashion. Furthermore, the list of exceptions to the right to liberty secured in Article 5 § 1 of the Convention is an exhaustive one, and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his liberty (see Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports of Judgments and Decisions 1997-IV).

39. In the present case, the applicants were first escorted to the police station in accordance with Article 27.2 of the Code of Administrative Offences. The Court has found above that the applicants’ procession could reasonably be perceived as a demonstration (see paragraph 29 above), possibly in breach of the domestic requirements for holding a public event. The police therefore had formal grounds for charging the applicants with an administrative offence under Article 20.2 of the Code of Administrative Offences. The Court also accepts that the situation might not have allowed the relevant documents to be drawn up on the spot, given the number of protestors and the scale of agitation there. It concludes that the escorting procedure had the purpose of bringing the applicants before the competent legal authority on suspicion of having committed an administrative offence and that it complied with Article 5 § 1 (c) of the Convention.

40. Once at the police station, the applicants’ detention was ordered in accordance with Article 27.3 of the Code of Administrative Offences. The Court notes that the duration of administrative detention should not as a general rule exceed three hours. This time-limit was complied with in respect of the first applicant, who appeared before the Justice of the Peace at 6.20 p.m. By contrast, as regards the second applicant, neither the Government nor any other domestic authorities provided any justification for his forty-eight-hour detention as required by Article 27.3 of the Code, namely that it was an “exceptional case” or was “necessary for the prompt and proper examination of the administrative case and to secure the enforcement of any penalty to be imposed”. In the absence of any explicit reasons given by the authorities for detaining him for more than three hours, the Court considers that his detention was unlawful (see, for similar reasoning, Frumkin v. Russia, no. 74568/12, § 150, ECHR 2016 (extracts)).

41. In view of the foregoing, the Court finds no violation of Article 5 § 1 of the Convention as regards the first applicant, but finds a violation of Article 5 § 1 of the Convention as regards the second applicant on account of his detention from 24 to 26 November 2007.

IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

42. The applicants complained of a violation of the right to a fair and public hearing in the administrative proceedings against them. They relied on Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention. The relevant parts provide:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...

...

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;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”

A. Admissibility

43. The parties agreed that Article 6 of the Convention was applicable to the proceedings in question. The Court has previously held that the offence set out in Article 19.3 of the Code of the Administrative Offences should be classified as “criminal” for the purposes of the Convention (see Malofeyeva, cited above, §§ 99-101; Nemtsov v. Russia, no. 1774/11, § 83, 31 July 2014; and Navalnyy and Yashin, cited above, § 78), as should the offence under Article 20.2 of the Code (see Kasparov and Others, cited above, §§ 37-45; Mikhaylova v. Russia, no. 46998/08, §§ 57-69, 19 November 2015; and Frumkin, cited above, §§ 154-56). The Court sees no reason to reach a different conclusion in the present case and considers that the proceedings fall to be examined under the criminal limb of Article 6 of the Convention.

44. The Court also considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It should therefore be declared admissible.

B. Merits

1. The parties’ submissions

45. The Government maintained that the proceedings in the applicants’ administrative cases had complied with Article 6 of the Convention. They argued that each applicant had been given a fair opportunity to state his case and have the police officers cross-examined. The Government claimed that the hearings had been open to the public, that the applicants had been given sufficient time to prepare their defence and that they were being assisted by lawyers of their choice.

46. The applicants contended that they had not been given a fair hearing. They complained that the court had refused to call and examine the witnesses they had requested and, in the first applicant’s case, had refused to accept the video recordings of their arrest as evidence. Furthermore, the court had not respected the principle of equality of arms in that it had rejected the testimony of the applicants as false while giving weight to that of the two police officers. In addition, the applicants complained that the hearing in the first applicant’s case had not been open to the public, that their right to mount a defence had been violated and that they had not been given adequate time to prepare their defence.

2. The Court’s assessment

47. The Court observes that the circumstances of the applicants’ confrontation with the riot police were disputed by the parties to the administrative proceedings. In particular, the applicants contested that the procession had caused a disturbance, and denied that they had had an opportunity to disperse before being arrested. However, the courts in those proceedings decided to base their judgment exclusively on the version of events put forward by the police and refused to accept additional evidence such as video recordings, or to call other witnesses, in the absence of any obstacles to doing so.

48. The Court has already examined a number of applications against Russia concerning administrative proceedings against people charged with breaching rules of conduct of public events or with failing to obey police orders to disperse. It found that in those proceedings the Justices of the Peace had accepted the submissions of the police readily and unequivocally and had denied the applicants any possibility of adducing any proof to the contrary. It held that in the dispute over the key facts underlying the charges where the only witnesses for the prosecution were the police officers who had played an active role in the contested events, it was indispensable for the courts to use every reasonable opportunity to verify their incriminating statements (see Kasparov and Others, § 64; Navalnyy and Yashin, § 83; and Frumkin, § 165, all cited above). Failure to do so ran contrary to the fundamental principles of criminal law, namely in dubio pro reo (see Frumkin, § 166, and the cases cited therein).

49. The Court notes that the applicants’ proceedings were conducted in a virtually identical manner, that is, without them being given any opportunity to adduce evidence in support of their version of events. Moreover, the courts did not require the police to justify the interference with the applicants’ right to freedom of assembly, which included a reasonable opportunity to disperse when such an order is given (ibid.).

50. The foregoing considerations are sufficient to enable the Court to conclude that the administrative proceedings against the applicants, taken as a whole, were conducted in violation of their right to a fair hearing.

51. In view of these findings, the Court does not consider it necessary to address the remainder of the applicants’ complaints under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

52. The applicants complained that their arrest and detention on administrative charges had pursued the aim of undermining their rights to freedom of assembly and freedom of expression, and had been for political revenge. They complained of a violation of Article 18 of the Convention, which reads:

“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.”

53. In their submissions under this head the parties reiterated their arguments as regards the alleged interference with the right to freedom of assembly, the reasons for the applicants’ deprivation of liberty and the guarantees of a fair hearing in the administrative proceedings.

54. The Court notes that this complaint is linked to the complaints examined above under Articles 5 and 11 of the Convention and must therefore likewise be declared admissible.

55. The Court has found above that the applicants’ arrest and administrative detention had the effect of preventing and discouraging them and others from participating in protest rallies and actively engaging in opposition politics (see paragraph 32 above), and has found a violation of Articles 5 and 11 of the Convention. In view of this, the Court considers that it is not necessary to examine whether, in the present case, there has been a violation of Article 18 of the Convention.

VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

56. Lastly, the applicants complained under Article 3 of the Convention that the riot police had used excessive force against them, and that the conditions of their detention and prison transfer had been poor. They also referred to Articles 7 and 14 of the Convention.

57. The first applicant’s complaint concerning the conditions of his prison transfer was formulated for the first time in his observations, on 20 June 2012. The Court notes that this complaint was lodged out of time as it does not comply with the six-month rule. Accordingly, it must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. The applicants’ other complaints under Article 3 of the Convention have not been clearly formulated; they do not contain an account of the relevant events and are not supported by evidence. They must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

58. The Court has examined the other complaints submitted by the applicants. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s 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. This part of the application must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

59. 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

60. The applicants claimed a symbolic amount of 5,000 euros (EUR) each in respect of non-pecuniary damage.

61. The Government contested their claims and considered that a finding of a violation would constitute sufficient just satisfaction.

62. The Court observes that it has found a violation of Articles 11 and 6 of the Convention in respect of both applicants, and of Article 5 of the Convention in respect of the second applicant. In these circumstances, the Court considers that the applicants’ suffering and frustration cannot be compensated for by the mere finding of a violation. It awards them the requested amount of EUR 5,000 each in respect of non-pecuniary damage.

B. Costs and expenses

63. The applicants also claimed 200,000 Russian roubles (RUB) for the fees paid by the first applicant to Ms Moskalenko and Ms Mikhaylova for representing all the applicants before the Court. In May 2012, when the legal services agreements were signed, this was the equivalent of about EUR 5,000.

64. The Government argued that the applicants had failed to prove that these costs and expenses had been necessarily incurred. They also noted that the legal fees had been charged on the basis of legal services agreements signed in 2012.

65. 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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 3,000 under this head, plus any tax that may be chargeable to the applicant.

C. Default interest

66. 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. Declares, unanimously, the complaints raised by the first and the second applicants under Articles 5, 6, 10, 11 and 18 of the Convention admissible and the remainder of the application inadmissible;

2. Holds, unanimously, that there has been a violation of Article 11 of the Convention as regards both applicants;

3. Holds, unanimously, that there has been no violation of Article 5 § 1 of the Convention as regards the first applicant;

4. Holds, unanimously, that there has been a violation of Article 5 § 1 of the Convention as regards the second applicant;

5. Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention as regards both applicants;

6. Holds, unanimously, that there is no need to examine the remainder of the complaints under Article 6 of the Convention;

7. Holds, by six votes to one, that there is no need to examine the complaint under Article 18 of the Convention;

8. Holds, unanimously,

(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 the currency of the respondent State at the rate applicable at the date of settlement:

(i) to each of the applicants EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) to the first applicant EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

9. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) Partly dissenting opinion of Judge Keller;

(b) Concurring opinion of Judge Serghides.

L.L.G.
J.S.P.

PARTLY DISSENTING OPINION OF JUDGE KELLER

1. Although I voted with the majority as concerns the violations of Articles 5 § 1, 6 § 1 and 11 of the Convention found in the present case, I regret that I am unable to agree with my colleagues with regard to Article 18 of the Convention. For the reasons set out below, I consider that the merits of the complaint submitted by the applicants under that provision ought also to have been examined.

2. Under Article 18 of the Convention, the applicants in the present case argued that they suffered violations of their rights under Article 5 § 1 and Article 11 of the Convention that were inflicted “for political revenge” (see paragraph 52 of the majority’s judgment). Though this allegation falls squarely within the ambit of Article 18, the majority declared it unnecessary to examine whether that provision had been violated. Instead, my colleagues emphasised that they had already found a violation of the applicants’ rights under Article 11 of the Convention and established that this was likely to have a “chilling effect” on others (see paragraph 55 of the majority’s judgment, referring to paragraph 32 above).

3. Article 18 of the Convention, however, enshrines values beyond the protection of liberty or of free assembly and association. In this regard, I should like to refer to my partly dissenting opinion in Kasparov v. Russia (no. 53659/07, 11 October 2016), a case brought by the first applicant in the present case. Mutatis mutandis, the arguments made therein also apply here. In particular, I reiterate that, although it is an accessory provision, Article 18 of the Convention must be understood as protecting a separate legal interest, additional to that protected by the other Convention rights and freedoms with which it is invoked. This understanding of the provision follows both from the fact that it was enshrined in the Convention as a separate article, which logically entails a need to grant it a reasonable scope of independent application, and from its drafting history.[1]

4. The majority’s approach to Article 18 of the Convention in the present case is not unprecedented. Through its interpretation of the provision, including by means of the high burden of proof it often imposes and its propensity to declare a separate examination of the relevant complaints unnecessary, the Court has made it exceedingly difficult for applicants to succeed in claiming a violation of Article 18 before the Court. However, cases such as the present one disclose an urgent need to address the instrumentalisation of legal proceedings in order to target and silence dissidents and oppositional actors in certain member States. As I have previously argued, in a joint partly dissenting opinion with judges Nicolaou and Dedov (Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, § 7, 23 February 2016), “such a distortion of the law - the singling out of dissidents in order to silence them by means of criminal proceedings - is precisely the sort of abuse from which Article 18 is intended to provide protection.”

5. The present case discloses an unambiguous prima facie case of a violation of Article 18 of the Convention, and for that reason the Court should have examined the merits of the complaint under that article. Instead, the majority has chosen an approach that deprives Article 18 of a reasonable scope of application. This is alarming, given that tendencies such as those which underlie the present case run counter to the demands of a democratic society. The Court should therefore urgently reconsider its current approach, which neutralises Article 18 despite the fact that this provision represents the most appropriate avenue for responding to undemocratic tendencies.

CONCURRING OPINION OF JUDGE SERGHIDES

1. I voted in favour of the judgment in full and the aim of this opinion is to deal more extensively with the finding of the Court that there has been a violation of Article 5 § 1 of the Convention in respect of the second applicant.

2. Article 5 § 1 (c) of the Convention provides 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 affected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...”.

3. The second applicant was held in the Basmannyy District police station from 3.45 p.m. on 24 November 2007 “until an unspecified time on 26 November 2007” (see paragraph 9 of the judgment). He was charged “with breaching the established procedure for conducting public events and disobeying lawful police orders, offences under Articles 20.2 § 2 and 19.3 of the Code of Administrative Offences” (ibid.).

4. The relevant provisions of Russian procedural legislation, dealing with administrative detention, are Article 27.3(1)(3) and (5) and Article 27.5(1)(2) and (3) of the Code of Administrative Offences of 30 December 2001; they have been translated into English and are quoted in Navalnyy and Yashin v. Russia (no. 76204/11, § 44, 4 December 2014) (see also paragraph 18 of the present judgment, which refers, for a summary of the relevant domestic law, to Navalnyy and Yashin, as well as to Kasparov and Others v. Russia (no. 21613/07, § 35, 3 October 2013)). The relevant domestic law quoted in Navalnyy and Yashin, cited above, § 44, dealing with the above provisions, as well as with some other relevant provisions, reads as follows:

“Article 27.3 Administrative detention

1. Administrative detention or short-term restriction of an individual’s liberty may be applied in exceptional cases if this is necessary for the prompt and proper examination of the alleged administrative offence or to secure the enforcement of any penalty imposed by a judgment concerning an administrative offence. ...

...

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 detained person shall have his rights and obligations under this Code explained to him, and the corresponding entry shall be made in the administrative arrest report.

Article 27.4 Administrative detention report

1. Administrative detention shall be recorded in a report ...

2. ... If he or she so requests, the detained person shall be given a copy of the administrative detention report.

Article 27.5 Duration of administrative detention

1. The duration of administrative detention shall not exceed three hours, except in the cases set out in paragraphs 2 and 3 of this Article.

2. Persons subject to administrative proceedings concerning offences involving unlawful crossing of the Russian border ... may be subject to administrative detention for up to 48 hours.

3. Persons subject to administrative proceedings concerning offences punishable, among other administrative sanctions, by administrative detention may be subject to administrative detention for up to 48 hours.

4. The term of the administrative detention is calculated from the time when [a person] escorted in accordance with Article 27.2 is taken [to the police station], and in respect of a person in a state of alcoholic intoxication, from the time of his sobering up.”

5. The key purpose of Article 5 is to prevent arbitrary or unjustified deprivations of liberty (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006-X; Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III; and Winterwerp v. Netherlands, A33 (1979), 2 EHRR 387, § 37). Therefore, the Court does not consider itself bound by the legal conclusions of the domestic authorities as to whether or not there has been a deprivation of liberty, and it thus undertakes an autonomous assessment of the situation (see H.L. v. the United Kingdom, no. 45508/99, § 90, ECHR 2004-IX; H.M. v. Switzerland, no. 39187/98, §§ 30 and 48, ECHR 2002-II; and Creangă v. Romania [GC], no. 29226/03, § 92, 23 February 2012). In view of the above, the notion of “arbitrariness” in Article 5 § 1 extends beyond a lack of conformity with national law, such that a deprivation of liberty may be lawful in terms of domestic law, but still arbitrary, and thus contrary to the Convention (see Creangă, cited above, § 84, and A. and Others v. the United Kingdom [GC], 3455/05, § 164, 19 February 2009). In line with the above case-law, the Court in the present case (see paragraph 38 of the judgment) has held that:

“... the ‘lawfulness’ of detention under domestic law is not always the decisive factor. The Court must also be satisfied that the detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent individuals from being deprived in an arbitrary fashion.”

6. In Frumkin v. Russia (no. 74568/12, § 149, ECHR 2016) the Court, dealing with a complaint similar to the present, also against Russia, noted “that the duration of administrative detention should not, as a general rule, exceed three hours, which is an indication of the period of time the law regards as reasonable and sufficient for drawing up an administrative offence report”. It then went on (in §§ 150-52, ibid.) to say the following, ultimately finding a violation of Article 5 § 1 of the Convention:

“150. ... The Government argued that the term of the applicant’s detention remained within the forty-eight-hour time-limit provided for by Article 27.5 § 3 of the Code of Administrative Offences. However, neither the Government nor any other domestic authorities have provided any justification as required by Article 27.3 of the Code, namely that it was an ‘exceptional case’ or that it was ‘necessary for the prompt and proper examination of the alleged administrative offence’. In the absence of any explicit reasons given by the authorities for not releasing the applicant, the Court considers that his thirty-six-hour detention pending trial was unjustified and arbitrary.

151. In view of the foregoing, the Court finds a breach of the applicant’s right to liberty on account of the lack of reasons and legal grounds for remanding him in custody pending the hearing of his case by the Justice of the Peace.

152. Accordingly, there has been a violation of Article 5 § 1 of the Convention.”

Making a reference to the above case, the Court in the present case has held that “[i]n the absence of any explicit reasons given by the authorities for detaining him [the second applicant] for more than three hours, the Court considers that his detention was unlawful” (see paragraph 40 of the judgment).

7. In my view, the test for a detention to be “lawful” under Article 5 § 1 and Article 5 § 1 (c) should be threefold:

(a) There must be “a procedure prescribed by law” (see Article 5 § 1 of the Convention).

(b) The detention must be lawful according to the national substantive and procedural law (see Article 5 § 1 and 5 § 1 (c) of the Convention).

(c) The detention should not be unjustified and arbitrary, contrary to Article 5 § 1 and Article 5 § 1 (c) of the Convention and the relevant case-law of the Court.

8. As has been said above, in order to meet the requirement of lawfulness, detention must be “in accordance with a procedure prescribed by law”, as provided in Article 5 § 1 of the Convention. Although this provision expressly deals only with procedure, it has, nevertheless, been interpreted by the Court as also making provision for compliance with substantive law, to the extent that detention must conform to the substantive and procedural rules of national law (see Del Río Prada v. Spain [GC], 42750/09, § 125, ECHR 2013), or international law, where appropriate (see, inter alia, Medvedyev and Others v. France [GC], no. 3394/03, § 79, 29 March 2010, and Toniolo v. San Marino and Italy, no. 44853/10, § 46, 26 June 2012). In Del Río Prada, cited above, § 125, the Court said particularly the following:

“It is well established in the Court’s case-law on Article 5 § 1 that all deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be ‘lawful’. Where the ‘lawfulness’ of detention is in issue, including the question whether ‘a procedure prescribed by law’ has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Kafkaris, cited above, § 116, and M. v. Germany, cited above, § 90).”

9. Since the second applicant in the present case was charged with the offences under Articles 20.2 § 2 and 19.3 of the Code of Administrative Offences, test (b) above as to compliance with the substantive law was satisfied. Also, since there was a procedure regulating the detention, namely that provided by Article 27.3-5 of the same Code, the provision for the necessity of a procedure in test (a) above was also satisfied.

10. Nonetheless, without the Government or any other domestic authorities providing any justification for the detention of the second applicant, which exceeded three hours, and lasted about two days, they did not comply with the national procedural law, and their decision was arbitrary, thus failing test (b) above as to compliance with procedure and test (c) above as to the non-arbitrariness criterion. More specifically, they breached:

(a) Article 27.3 § 1 of the Code of Administrative Offences of 30 December 2001 taken in conjunction with Article 27.5 §§ (1)(2) and (3) of the same Code, because the Government did not show, or even argue, that the detention at issue was “an exceptional case”, “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”.

(b) Article 5 § 1 of the Convention, as a result of non-compliance with the national procedural law (see subparagraph (a) above).

(c) Article 5 § 1 (c) of the Convention, as a result of non-compliance with the national procedural law (see subparagraph (a) above).

(d) Article 5 § 1 and Article 5 § 1 (c) of the Convention, because the detention lasted for more than three hours and was unjustified and arbitrary, being, thus, contrary to the case-law of the Court, based on the purpose of Article 5 § 1 of the Convention, “which is to prevent individuals from being deprived of their liberty in an arbitrary fashion” (see paragraph 38 of the judgment).

11. It fell within the positive obligation of the respondent State to provide a record with the exact time the detention ended on 26 November 2007. Since the time of the release of the second applicant on that date was left unspecified, if the detention ended any time after 3.45 p.m. that day, the detention would have lasted for more for than 48 hours, and, would, therefore, be contrary to Article 27.5 of the Code of Administrative Offences, which provides for 48 hours as the maximum length of detention. Regarding the importance of providing the Court with a record, proving the exact duration of the detention, it is helpful to refer to Kurt v. Turkey (25 May 1998, § 125, Reports 1998-III), where the Court stated that:

“... the absence of holding data recording such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it must be seen as incompatible with the very purpose of Article 5 of the Convention.”

Not producing a record with the exact duration of detention is also incompatible with the requirement of lawfulness under the Convention. In Anguelova v. Bulgaria, no. 38361/97, § 154, 13 June 2002, the Court held:

“The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1185-86, § 125, and Çakıcı, cited above, §§ 104-05).”

12. The failure to provide any justification for the detention of the second applicant for such a long time, apart from rendering the detention unlawful, violated the rule of law, the principle of effectiveness and the principle of proportionality.

13. The basis of the judgment, and correctly so, lies in the purpose of Article 5 § 1 of the Convention, and its narrow or restrictive interpretation; to use its words as to the latter: “... the list of exceptions to the right to liberty secured in the Article 5 § 1 is an exhaustive one, and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrary deprived of his liberty” (see paragraph 38 of the judgment). Regarding the requirement of a narrow interpretation, reference is made in the judgment to Giulia Manzoni v. Italy (1 July 1997, § 25, Reports 1997-IV), without, however, a more thorough legal analysis on the issue being provided in that case or in the cases cited therein (see Van der Leer v. the Netherlands, 21 February 1990, Series A no. 170-A, p. 12, para. 22; Wassink v. the Netherlands, 27 September 1990, Series A no. 185-A, p. 11, para. 24; and Quinn v. France, 22 March 1995, Series A no. 311, p. 17, para. 42).

14. The issues of determination and interpretation of the exceptions to the right to liberty and security are extremely important for the effective protection of the essence of this right. Besides, the principle of effectiveness is of great assistance for the interpretation and application both of the exceptions and the rule (i.e. the right secured) to which the exceptions are allowed. An attempt will thus be made in the following paragraphs to elaborate on the issue of the interpretation of Article 5 § 1 and specifically Article 5 § 1 (c) of the Convention.

15. The exceptions prove the rule, according to the Latin maxim exceptio probat regulam, and they determine and demarcate its ambit. In the case of Article 5 § 1 of the Convention, the rule is to be found in its first sentence “[e]veryone has the right to liberty and security of person”, which encapsulates the substance of the secured right. The exceptions to the rule are those provided in subparagraphs (a) to (f) of Article 5 § 1.

16. The wording of Article 5 § 1 that “[n]o one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law...” (emphasis added), followed by six situations, specifically enumerated (subparagraphs (a) to (f)), makes it clear that this list of exceptions was intended to be comprehensive and exhaustive, without leaving room for any other limitation, implied or tacit, being able to restrict further the rule stated above. The list of the exceptions mentioned in subparagraphs (a) to (f) is exhaustive, since these are the only exceptions provided (“save in the following cases”) to the rule, the wording of which begins in a mandatory manner (“no one shall be deprived of”), leaving no room for limitations other than those expressly provided.

17. Therefore the exceptions provided for in Article 5 § 1 (a)-(f) must be understood in a completely strict sense, and to use the words of Lord Dunedin in Whiteman v. Sadler, [1910] AC 514, at p. 527, “[e]xpress enactment shuts the door to further implication”. The maxim expressio facit cessare tacitum applies here, according to which “no inference is proper if it goes against the express words Parliament has used” or, when adapted to the present case, “words the High Contracting Parties have used” (see Francis A. Bennion, Bennion on Statutory Interpretation - A Code, fifth edition, London, 2008, Section 389, p. 1249.) Bennion further makes the following pertinent point regarding the application of this maxim to “excepting provisions”, as are the provisions of subparagraphs (a) to (f) of Article 5 § 1 of the Convention:

“The maxim expressio unius est exclusio alterius (to express one thing is to exclude another) is an aspect of the principle expressum facit cessare tacitum. Known for short as the expression unius principle. [Ibid, Section 390, at p. 1250]

...

The principle expressio unius est exclusio alterius is often applied to words of exception. An excepting provision may except certain categories either from the Act in which the provision is contained, or from the law generally.

....

Where An Act contains specific exceptions, it is presumed that these are the only exceptions of the kind intended. ...” [Ibid, Section 394, at p. 1256]

18. An interpretation of the exceptions in Article 5 § 1 of the Convention which is not narrow and does not consider the list as exhaustive, would be contrary to the aim of the Article, as stated above. As the Court said in Winterwerp, cited above, § 37:

“To hold otherwise would not be reconcilable with the text of Article 5 § 1 which sets out an exhaustive list (see the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 24, para. 57, and the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 74, para. 194) of exceptions calling for a narrow interpretation (see, mutatis mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 21, para. 42, and the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 41, para. 65). Neither would it be in conformity with the object and purpose of Article 5 § 1, namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion (see the Lawless judgment of 1 July 1961, Series A no. 3, p. 52, and the above-mentioned Engel and Others judgment, p. 25, para. 58).”

19. Any uncertainty as regards the issue of limitation of Article 5 § 1 of the Convention would have an adverse impact on both the negative and the positive obligations of the State under this provision, and this would not be fulfilling the purpose of Article 5 § 1 of the Convention. It is to be noted that Article 5 § 1, first sentence, lays a positive obligation on the State not only to refrain from active infringement of the rights in question, but also to take appropriate steps to provide protection against an unlawful interference with those rights to everyone within its jurisdiction (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 239, ECHR 2012).

20. Article 31 § 1 of the Vienna Convention on the Law of Treaties of 1969 (hereinafter VCLΤ), provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Having this provision in mind, I shall endeavour to approach the interpretation of Article 5 § 1 and Article 5 § 1 (c) of the Convention from the angle of some other relevant provisions of the Convention and in the light of the object and purpose of those provisions.

21. Though the Court in the present case considers that it is not necessary to examine whether there has been a violation of Article 18, the provisions of this Article could, nevertheless, be a source in terms of assisting in the proper understanding of the nature and the use of the exceptions to any right secured in the Convention. Under Article 18, which is to be found at the end of Section 1 (entitled “Rights and Freedoms”), a legitimate aim cannot be a pretext for a measure taken for another improper purpose. It specifically provides 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”.

22. From the wording of Article 18 of the Convention, one could draw or deduce the following:

(a) Exceptions to rights in the Convention can only be those “permitted under the Convention”, meaning any express restriction in the Convention, and, thus, by following the maxim expressio unius est exclusio alterius, excluding the possibility of any implied or tacit exception.

(b) The application of the restrictions permitted shall be restrictive in the sense that the exceptions shall not be applied for an improper use, but only for the purpose for which they have been prescribed.

(c) Article 18 of the Convention expressly refers only to the application, but not also to the interpretation of the restrictions to rights in the Convention. Since, however, the application of any exception presupposes an interpretation or an understanding of the exception, the interpretation shall logically also be restrictive.

23. The above findings apply also regarding the exceptions in Article 5 § 1 (a)-(f) of the Convention, which are the only “restrictions permitted”, for the purposes of Article 5 § 1 and Article 18 (taken together with the former) of the Convention, and which should be applied only for the purpose for which they are prescribed and in a restrictive way.

24. Article 18 of the Convention could, therefore, assist in the determination of the bright line between the rule of Article 5 § 1 of the Convention and its exceptions, showing that, by strictly interpreting and applying the exception, the rule is given its requisite observance and effect.

25. The provisions of Article 18 are in full conformity with Article 31 § 1 of the VCLT, as they take into consideration the purpose of the restrictions to a right and their application in good faith, and, at the same time, respecting the rule and giving effect to it. A restrictive interpretation of the exceptions in Article 5 § 1 of the Convention is, also, in line with Article 31 § 1, since their interpretation is based on their text, in its ordinary meaning, taking into consideration the object and the purpose of the right to liberty and security in unison with the restrictions thereto.

26. Article 17 of the Convention could also support the view that the list of exceptions in Article 5 § 1 of the Convention, as the list of exceptions in any other Article of the Convention, is exhaustive. Article 17 of the Convention provides as follows:

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or of their limitation to a greater extent than is provided for in the Convention.”

From this provision and especially having regard to the mandatory and absolute manner in which it is drafted, it is obvious that the rights and their limits are those expressly provided for in the Convention and should be interpreted according to their aim and the principle of effectiveness, and, as such, they should receive protection against anyone.

27. Apart from Articles 17 and 18, Article 16 of the Convention a contrario supports the view that the list of exceptions in Article 5 § 1 is exhaustive as far as nationals are concerned, as in the present case where the applicants were nationals of the respondent State. Article 16 of the Convention, confining its application only to the political activity of aliens, provides as follows:

“Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.”

From this provision, and following the principle expressio unius est exclusio alterius, referred to above, it is clear that the High Contracting Parties are precluded from imposing restrictions on the political activity of nationals, like the applicants in the present case. This, of course, does not, in my view, give the host State an unfettered right to restrict the exercise by an alien of the right under Article 5 § 1 of the Convention.

28. The rights and freedoms are defined in Section 1 of the Convention and this is clear, inter alia, from the provision of Article 1 of the Convention which reads as follows:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.”

From the wording of the above Article, and particularly the phrase “defined in”, it follows that the determination of the ambit of the rights and freedoms is exclusively and exhaustively made in Section 1 (and, of course, the additional Articles in the Protocols), taking into account also the exceptions to each right (those which, of course, are not absolute rights). In other words, the definition of the rights in Section 1 of the Convention certainly covers the exceptions thereto, which, in a sense, if I may use this term, can be regarded as “characteristics” of those rights. Accordingly, since Section 1 of the Convention defines both the essence of the rights and the exceptions, there is no room for implied or tacit exceptions. The fact of ensuring observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, under Article 19 of the Convention, certainly refers to the obligation undertaken by these Parties under Article 1 of the Convention to respect and secure human rights, as defined in Section 1 of the Convention together with any exceptions, which form part of their definition.

29. It is also interesting to note how the preamble to the Convention ends: “[the High Contracting Parties] [h]ave agreed as follows”, followed by the Articles defining or determining the rights secured therein. This means that the intention of the High Contracting Parties was not to leave room for qualifications to rights other than those on which they had agreed and which are expressly referred to in Section 1 of the Convention.

30. A relevant argument can also be deduced from the provisions of Article 15 of the Convention, namely, that, since derogation from Article 5 can be permitted “[i]n time of war or other public emergency threatening the life of the nation” and apply “to the extent strictly required by the exigencies of the situation” and under the other conditions set by Article 15, consequently no derogation can be permitted under any other conditions. Therefore, apart from such exceptional situations, based on the law of necessity (the relevant Latin maxims being salus populi suprema lex esto and necessitas non habet legem), which may apply only temporarily in time of emergency, the right under Article 5 § 1 of the Convention may not be affected adversely by any provision of the Convention other than Article 15. However, it must be made clear that any derogation from the obligations of a High Contracting State under Article 15 of the Convention does not have the effect of extending the list of exceptions to any of the rights under the Convention, including Article 5 § 1 of the Convention. Its operation has a temporal character and a certain aim, thus, as stated in the Article, to save a nation from a “public emergency”. In any event, in the present case, there is no issue of emergency, and therefore, neither is there an issue involving application of the provisions of Article 15. Furthermore, in the present case there is no issue of an international armed conflict and, therefore, no question of applying international humanitarian law (see Hassan v. the United Kingdom [GC], no. 29750/09, 16 September 2014).

31. The right to liberty and security is of the highest importance in a “democratic society” within the meaning of the Convention (see Medvedyev and Others, cited above, § 76; and Ladent v. Poland, no. 11036/03, § 45, 18 March 2008). The Court views the notion of “liberty” alongside Articles 2, 3, and 4, as being “in the first rank of fundamental rights that protect physical security of an individual” (see Mckay, cited above, § 30). In view of the above-mentioned importance of the right to liberty and security, neither this right nor the principle of legal certainty and the rule of law, with which the former is associated, can be secured unless there are concrete and strict exceptions to it, as has been explained above. This point is highlighted in Winterwerp, cited above, § 37, where the Court, referring to a detention not covered by any of the exceptions in Article 5 § 1, and after making it clear that Article 5 § 1 of the Convention called for a narrow interpretation, said:

“Moreover, it would disregard the importance of the right to liberty in a democratic society (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 36, para. 65, and the above-mentioned Engel and Others judgment, p. 35, para. 82 in fine).”

32. Finally, in view of the above legal analysis and taking into account the facts of the case, I reach the same conclusion as that of the judgment, regarding the interpretation and application of Article 5 § 1 and Article 5 § 1 (c) of the Convention, thus that there has been a violation of Article 5 § 1 of the Convention in respect of the second applicant.

APPENDIX

N^o	First name Last name	Birth year	Place of residence	Representative
1.	Garri Kimovich KASPAROV	1963	Moscow	K.A. Moskalenko O.O. Mikhaylova
2.	Aleksandr Aleksandrovich AVERIN	1981	Moscow	K.A. Moskalenko O.O. Mikhaylova
3.	Yuriy Nikolayevich OREL	1968	Moscow
4.	Lev Aleksandrovich PONOMAREV	1941	Moscow
5.	Aleksandr Viktorovich STELMAKH	1978	Moscow
6.	Aleksey Valeryevich TARASOV	1968	Moscow
7.	Andrey Pavlovich TOROPOV	1973	Orudyevo, Moscow Region

1. Compare on this point, Keller, Helen and Heri, Corina, “Selective Criminal Proceedings and Article 18 of the European Convention on Human Rights’ Untapped Potential to Protect Democracy”, 36 (1-6) Human Rights Law Journal (2016), pp. 1-10, with further references.