CASE OF YELISEYEV v. RUSSIA
(Application no. 32151/09)
18 July 2017
This judgment is final but it may be subject to editorial revision.
In the case of Yeliseyev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 27 June 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 32151/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belarusian national, Mr Aleksandr Leonidovich Yeliseyev (“the applicant”), on 1 April 2009 and 31 October 2012.
2. The applicant was represented by Ms D. Trenina and Ms N. Yermolayeva, lawyers practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin
3. On 13 February 2014 the complaints under Article 11 of the Convention and Article 1 of Protocol No. 1 were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1967 and lives in Kalinkovichi.
A. Impounding of the applicant’s car
5. On 29 March 2008 the applicant was stopped by a Russian customs officer at the border crossing into Belarus. After having checked the applicant’s documents, the officer informed the applicant that, having failed to declare his Opel car when entering Russia, he had infringed the Russian customs regulations. The officer instituted administrative proceedings against the applicant and impounded his car.
6. On 11 June 2008 Colonel B., Head of the Novozybkov Customs Post of the Bryansk Customs Office, examined the applicant’s case. He found the applicant liable for having failed to declare the car and ordered him to pay a fine in the amount of 35,509.50 Russian roubles (RUB). He further ruled that the applicant’s car, which had been impounded by customs, should be returned to the applicant. The applicant appealed.
7. On an unspecified date the Novozybkov Town Court of the Bryansk Region fixed the hearing for 8 August 2008.
8. On 8 August 2008 the Town Court examined the applicant’s appeal and upheld the decision of 11 June 2008. The court heard the case in the applicant’s absence. In the operative part of the judgment, the court advised the applicant of his right to appeal against the judgment adopted by the Town Court.
9. According to the applicant, the letter from the Town Court notifying him of the date and time of the court hearing reached him on 9 August 2008.
10. On 26 September 2008 the applicant received a copy of the Town Court’s judgment of 8 August 2008 by post.
11. On an unspecified date the applicant lodged an appeal with the Bryansk Regional Court. On 13 November 2008 the Regional Court sent a letter to the applicant informing him that his appeal was dismissed.
12. The subsequent request by the applicant for supervisory review was dismissed by the Supreme Court of the Russian Federation on 26 January 2009.
13. On 20 August 2009 the Acting Head of the Novozybkov Customs Post of the Bryansk Customs Office discontinued the enforcement proceedings in respect of the decision of 11 June 2008. He noted that the applicant was a foreign national and had no assets or known place of residence in the Russian Federation and that it was impossible to enforce the decision of 11 June 2008 on account of the expiry of the relevant time-limit.
14. On 24 August 2009 the Bryansk Customs certified that (1) the decision concerning the applicant’s administrative liability had come into force on 15 July 2009; and (2) the applicant had failed to reclaim his car within a month of that date.
15. On an unspecified date the regional agency in charge of the federal property applied to the Town Court seeking to reclaim the applicant’s car as bona vacantia.
16. On 12 November 2009 the Town Court granted the agency’s claims in full. It took into account that, as claimed by the agency, the applicant had been repeatedly summoned to the regional customs office to pick up his car. According to the documents submitted by the Government, the court decided to hear the case in the applicant’s absence given that he had been duly notified of the hearing and chose not to attend. The applicant did not appeal.
17. On 2 June 2010 the judgment of 12 November 2009 was enforced.
B. Strategy-31 rally
18. On 19 March 2012 the leaders of the Strategy-31 movement notified the Mayor of Moscow of their intention to organise a rally (from 6 to 8 p.m.) at Triumfalnaya Square in the centre of Moscow and a march (from 8 to 8.30 p.m.) from Triumfalnaya Square down Tverskaya Street to Manezh Square on 31 March 2012 (Saturday). Approximately 1,500 people were expected to attend. The events were organised to promote the right to peaceful assembly as set forth in Article 31 of the Constitution of the Russian Federation and the freedom of Parliamentary elections in Russia.
19. On 20 March 2012 the Government of Moscow refused to agree on the venues for the rally and the march. According to the authorities, there was archeological and construction work going on in Triumfalnaya Square and the march, according to the indicated route, would “disrupt the normal functioning of the city’s infrastructure and traffic [and] infringe the rights and interests of people who would not take part [in the rally and the march]”. The authorities further suggested two alternative venues for the planned events, also located in the centre of Moscow.
20. On 29 March 2012 the leaders of the Strategy-31 movement informed the Mayor of Moscow that the rally would take place at the venue indicated in their notification of 19 March 2012.
21. On 31 March 2012 the rally was held as planned by its organisers at Triumfalnaya Square. The applicant took part. At 6.30 p.m. he was arrested and brought to the police station. According to the arrest record, the applicant had taken part in an unauthorised gathering and chanted slogans such as “Down with Putin”, “Let us stop the dictatorship” and “Fascism shall not pass”.
22. On 17 April 2012 the Justice of the Peace of Precinct no. 367 of the Tverskoy District of Moscow found that the rally held on 31 March 2012 had been organised in contravention of the existing procedure and that the applicant had taken part in it without having verified whether it had been legitimate. The court found the applicant administratively liable for violation of the established procedure for organising a public assembly and fined him RUB 500. The applicant appealed.
23. On 21 May 2012 the Tverskoy District Court of Moscow upheld the decision of 17 April 2012 on appeal.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
24. The applicant complained that the domestic courts had heard his administrative case in his absence in contravention of Article 6 of the Convention, which reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a]n ... 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[.]”
25. The Government considered that the applicant’s complaint fell outside the scope of Article 6 of the Convention. In their opinion, it did not concern the determination of his civil rights and obligations or of any criminal charge against him. In any event, they discerned no violation of the applicant’s rights set out in the said provision. In their opinion, the applicant’s presence at the hearing before the Town Court had not been necessary given that he had taken part in the hearing of his case by the customs officer and had been able to lodge an appeal against the latter’s decision.
26. The applicant maintained his complaint. As to its admissibility, he considered that the administrative proceedings in his case had concerned the determination of a criminal charge against him within the meaning of Article 6 of the Convention.
27. Having regard to the particular circumstances of the present case, the Court considers that there is no need for it to address the Government’s argument that the applicant’s complaint is incompatible ratione materiae. Even accepting, regard being had to its earlier case-law concerning administrative offences entailing imposition of a monetary fine (see Mikhaylova v. Russia, no. 46998/08, §§ 50-69, 19 November 2015) the applicant’s argument that the proceedings against him constituted criminal proceedings which fall within the ambit of Article 6 of the Convention, it finds that the applicant’s complaint is, in any event, inadmissible for the reasons set out below.
28. The Court observes that, even though on 8 August 2008 the Town Court found the applicant in breach of the customs regulations and imposed a fine on him, the said judgment was not enforced and on 20 August 2009 the enforcement proceedings were discontinued on account of the expiry of the relevant time-limit.
29. The Court also takes into account that in his observations the applicant did not refer to any national law or factual information that would allow the Court to conclude that he could be subject to any adverse collateral consequences of his “conviction” for the breach of the customs regulations notwithstanding the discontinuation of the enforcement proceedings.
30. The Court considers that, in the circumstances of the case, any defects which may have existed at the time of the examination of the applicant’s case by the national authorities, including the Town Court’s failure to inform the applicant in good time of the court hearing, must be considered to have been rectified by the termination of the proceedings. In this connection, the Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, occurred in the course of proceedings in which he was acquitted or which were discontinued (see Eğinlioğlu v. Turkey, no. 31312/96, Commission decision of 21 October 1998, unreported, and Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003).
31. Regard being had to the above, the Court considers that the applicant can no longer claim to be a victim of a violation of his right to a fair trial. It follows that this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
32. The applicant complained that the State had failed to return his car to him or to reimburse its value. He relied on Article 1 of Protocol No. 1 to the Convention which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
33. The Government did not contest that the car had constituted the applicant’s possession and that its impounding had amounted to an interference with the applicant’s property rights. However, they considered that such interference had been in accordance with law and proportionate to the aim pursued. The applicant had failed to comply with the customs regulations and the impounding of his car had been necessary to put an end to the applicant’s unlawful behaviour and to ensure a proper examination of the case against him. Once the administrative proceedings had been over, the injunction had been lifted and the applicant could pick up his car. However, he had failed to recover his property. Subsequently, the car had been recognised a bona vacantia the title to it having been transferred to the State.
34. As to the impounding of the applicant’s car, the Court accepts the Government’s argument that the interference with the applicant’s possession had been in compliance with applicable laws and proportionate to the legitimate aim pursued. In this connection, the Court also takes into account that the injunction had been of a relatively short duration and it does not appear that the applicant suffered any serious disadvantage as a result of it. Nor does the Court find the applicant’s allegations substantiated in respect of the loss of his title to the car. Regard being had to the circumstances of the case and, particularly, to the applicant’s failure to pick up the car or to claim his title to it for over a year, the Court subscribes to the authorities’ findings that the applicant’s car should have been considered a bona vacantia.
35. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
36. The applicant complained that his arrest and imposition of a fine on him resulting from his participation in the rally had been in breach of Article 11 of the Convention 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.”
37. The Government contested that argument. They considered that the proposal made by the city authorities as to the change of the venue of the rally ignored by its organisers should not be construed as an infringement of the applicant’s rights set out in Article 11 of the Convention. As to the applicant’s arrest and ensuing administrative proceedings, the Government considered such measures proportionate to the aim of maintaining public order pursued by the law enforcement authorities. Lastly, they submitted that the fine in the amount of RUB 500 imposed on the applicant had not been a severe sanction.
38. The applicant maintained his complaint. In addition he submitted that the city authorities’ failure to authorise the rally had also amounted to a violation of his rights set out in Article 11 of the Convention.
The Court notes that this part of the 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.
39. As regards the scope of the complaint, the Court observes that, when lodging the application on 21 October 2012, the applicant did not complain about the authorities’ failure to authorise the rally of 31 March 2012. The applicant’s grievances concerned only his arrest and ensuing administrative proceedings in connection with his participation in the rally. The Court will examine the complaint accordingly. In its analysis, it will refer 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 proportionality of interference with it (see Oya Ataman v. Turkey, no. 74552/01, ECHR 2006-XIII, and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009).
40. The Court further notes that it has consistently found a violation of Article 11 of the Convention in a situation in which the participants in a public gathering had been arrested and charged with administrative offences for the sole reason that the Russian state authorities perceived their public gathering to be unauthorised (see, for example, Frumkin v. Russia, no. 74568/12, ECHR 2016 (extracts); Navalnyy and Yashin v. Russia, no. 76204/11, 4 December 2014; and Kasparov and Others v. Russia, no. 21613/07, 3 October 2013). Having examined the proportionality of the interference with the applicant’s rights, the Court discerned, in the absence of the acts of violence on the part of the demonstrators, no “pressing social need” for their arrest and conviction for an administrative offence.
41. Having examined all the material submitted by the parties, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. It observes that the applicant was arrested and charged with an administrative offence for having participated in an unauthorised political gathering thirty minutes after the start of the rally. The Government did not suggest that he had demonstrated a violent behaviour or had in other way disrupted peace or public order. Nor did they explain as to why it was impossible for the authorities to allow the demonstrators, including the applicant, to complete their assembly and to impose a reasonable fine on the spot or later on (see, mutatis mutandis, Novikova and Others v. Russia, nos. 25501/07 and 4 others, § 175, 26 April 2016). Accordingly, the Court considers that in the instant case the interference with the applicant’s freedom of assembly was not “necessary in a democratic society”.
42. There has been a violation of Article 11 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
43. 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.”
44. The applicant claimed 71,019 Russian roubles (RUB) (value of the car declared bona vacantia) and RUB 500 (administrative fine paid by the applicant) in respect of pecuniary damage. As regards non-pecuniary damage, he submitted that he had suffered distress and frustration resulting from the violation of his rights and left it to the Court’s discretion to determine the relevant amount of the award.
45. The Government considered the applicant’s claims excessive and unsubstantiated. In their view, the applicant overestimated the value of the car. As to the payment of the fine by the applicant, the Government did not object to the amount claimed to be awarded to him. As regards non-pecuniary damage, they considered that no award should be made.
46. The Court does not discern any causal link between the violation found and the pecuniary damage claimed in respect of the car; it therefore rejects this claim. As regards the fine paid by the applicant, the Court considers that there is a direct causal link between the violation of Article 11 of the Convention found and the amount claimed. It therefore awards 10 euros (EUR) in respect of pecuniary damage, plus any tax that may be chargeable. Lastly, it awards the applicant EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
47. The applicant also claimed EUR 5,400 for the costs and expenses incurred before the Court.
48. The Government considered the applicant’s claims unsubstantiated, excessive and unnecessary.
49. 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 sum of EUR 850.
C. Default interest
50. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 11 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 11 of the Convention;
(a) that the respondent State is to pay the applicant, 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:
(i) EUR 10 (ten euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 850 (eight hundred and fifty 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Helen Keller
Deputy Registrar President