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Cite as: CE:ECHR:2018:0529JUD005004314, [2018] ECHR 438, ECLI:CE:ECHR:2018:0529JUD005004314

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THIRD SECTION

CASE OF KOVYAZIN v. RUSSIA

(Application no. 50043/14)

JUDGMENT

STRASBOURG

29 May 2018

This judgment is final but it may be subject to editorial revision.

In the case of Kovyazin v. Russia,

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

Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 7 May 2018,

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

PROCEDURE

1. The case originated in an application (no. 50043/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Leonid Nikolayevich Kovyazin ("the applicant"), on 15 June 2014.

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

3. On 13 October 2014 the application was communicated to the Government and granted priority under Rule 41 of the Rules of Court.

4. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1986 and lives in Kostino, Kirov Region.

A. The demonstration of 6 May 2012

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

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

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

9. The applicant took part in the demonstration of 6 May 2012 at Bolotnaya Square. He was arrested on the date indicated below and charged with participation in mass disorder. The applicant was detained and tried on those charges but subsequently exempted from liability under the Amnesty Act. The applicant's complaints concerning the grounds and the length of his detention on remand, the poor conditions of detention and the lack of medical assistance in the remand prison were examined in the case Kovyazin and Others v. Russia (nos. 13008/13 and 2 others, 17 September 2015).

B. Criminal proceedings against the applicant

10. At the time of his arrest the applicant was working part-time as a videotape operator for a local newspaper Vyatskiy Nablyudatel. On 4 May 2012 he received an assignment from the newspaper chief editor to attend the "March of Millions" on 6 May 2012 at Bolotnaya Square and to take a video footage of the event.

11. According to the applicant, on 6 May 2012 he arrived at Bolotnaya Square, filmed the event and did not take part in any disorder or clashes with the police. After the events in question the applicant continued to live at his usual address and to work for the newspaper.

12. On 5 September 2012 the applicant was arrested and charged under Article 212 § 2 of the Criminal Code (participation in mass disorder accompanied by violence). He was accused of having breached public order during the demonstration on 6 May 2012, in particular, of having turned over portable toilet cabins and having piled them on the road to build a barrier obstructing the riot police.

13. On 7 September 2012 the applicant was placed in pre-trial detention where he remained one year and three months. It was found to be unjustified by the Court in the case of Kovyazin and Others (cited above, §§ 79-93).

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

15. On 6 June 2013 court proceedings began in hearing room no. 338 at the Moscow City Court, moving at the end of July to hearing room no. 635. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued at the Nikulinskiy District Court of Moscow in hearing room no. 303. It was equipped with metal cages, in which nine defendants, including the applicant, sat during the hearings. For a detailed description of the conditions in those hearing rooms see Yaroslav Belousov (cited above, §§ 74-77).

16. On 18 December 2013 the State Duma passed the Amnesty Act, which exempted persons suspected and accused of criminal offences under Article 212 §§ 2 and 3 of the Criminal Code from criminal liability.

17. On 19 December 2013 the applicant requested the termination of the criminal proceedings against him by operation of the Amnesty Act. On the same day the Zamoskvoretskiy District Court granted the request and released him from detention.

II. RELEVANT DOMESTIC LAW

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

Article 212 Mass disorder

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

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

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

19. For a summary of relevant domestic law and practice and relevant international material and practice as regards use of metal cages in courtrooms see Svinarenko and Slyadnev v. Russia ([GC], nos. 32541/08 and 43441/08, §§ 53-76, ECHR 2014 (extracts)).

20. The Amnesty Act of 18 December 2013 was passed by the State Duma with regard to the twentieth anniversary of the adoption of the Constitution of the Russian Federation. It applied, inter alia, to pending criminal proceedings against persons suspected and accused of criminal offences under Article 212 §§ 2 and 3 of the Criminal Code.

21. Article 27 §§ 1 (3) and 2 of the Code of Criminal Procedure ("CCrP") states that criminal proceedings against a suspect or an accused person should be terminated following the Amnesty Act with the consent of that person. However, the application of the Amnesty Act does not entitle a suspect or an accused person to rehabilitation (реабилитация), including compensation for pecuniary and non-pecuniary damage and the restitution of various rights, as provided for in Article 133 § 1 of the CCrP.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

22. The applicant complained that his confinement in glass cabins and metal cages during the first-instance and appeal hearings had amounted to inhuman and degrading treatment. He relied on Article 3 of the Convention, which reads as follows:

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

23. The Government contended that placing defendants behind metal barriers in courtrooms was a technical measure aimed at ensuring the security of all detainees. The applicant and his co-defendants had been kept in the same (if not better) conditions while in court as any other detained defendant in criminal proceedings.

A. Admissibility

24. The Government submitted that the applicant's complaints about his confinement in glass cabins had been lodged out of time. They repeated their submissions made in Yaroslav Belousov, cited above, § 113, in that regard.

25. The Court observes that the alleged ill-treatment took place during the first-instance hearing, which finished on 19 December 2013 owing to the termination of criminal proceedings against the applicant. It reiterates that the confinement of the applicant in glass cabins and metal cages occurred in two distinct periods with materially different conditions of detention, which cannot be regarded as a continuous situation for the purposes of calculating the six-month time-limit set forth in Article 35 § 1 of the Convention (see Yaroslav Belousov, cited above, § 114). Furthermore, the Court has previously accepted that no remedy was available to applicants in relation to courtroom arrangements and that the six-month time-limit should be calculated from the date the alleged ill-�treatment ceased (see Svinarenko and Slyadnev, cited above, § 87).

26. As regards the alleged ill-treatment by placement in glass cabins, the Court notes that it began on 6 June 2013 and ended on an unidentified date in the middle of September 2013, when the proceedings moved to the Nikulinskiy District Court of Moscow (see paragraph 15 above). The applicant lodged his application on 15 June 2014, ten months after the proceedings moved to a courtroom equipped with metal cages. The Court therefore considers that the complaint under Article 3 of the Convention about being placed in glass cabins was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

27. In contrast, the Court finds that the applicant has complied with the six-month rule as regards the complaint about being placed in metal cages. It notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

28. For a summary of the relevant general principles see Svinarenko and Slyadnev (cited above, §§ 113-18). The Court reiterates its earlier findings made in that case, where it came to the conclusion that holding a person in a metal cage during a trial constituted in itself an affront to human dignity and amounted to degrading treatment in breach of Article 3 of the Convention (ibid., §§ 122-38).

29. Turning to the present case and having examined the parties' arguments, the Court does not see any reason to depart from its findings in Svinarenko and Slyadnev in this regard. It follows, therefore, that the applicant's confinement in metal cages in the courtroom amounted to degrading treatment contrary to Article 3 of the Convention. There has accordingly been a violation of that provision.

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

30. The applicant alleged a violation of his right to freedom of expression and to freedom of peaceful assembly. He complained, in particular, of disruptive security measures at the site of the meeting at Bolotnaya Square and argued that his pre-trial detention and prosecution for participation in acts of mass disorder had not been "necessary in a democratic society". He relied on Articles 10 and 11 of the Convention, which, in so far as relevant, read as follows:

Article 10

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...

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 ..."

Article 11

"1. Everyone has the right to freedom of peaceful assembly ...

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 ..."

31. The Government's submissions on the admissibility and the merits of the case were identical to those in Yaroslav Belousov (cited above, §§ 156-�57 and 160-63).

32. The applicant submitted that on 6 May 2012 he went to take part in a peaceful meeting which had been authorised by the Moscow authorities. He alleged that the episodes of disorderly behaviour and the clashes between the protesters and the police had been caused, or compounded by, the authorities' crowd-control measures. The applicant insisted that he was a peaceful, law-abiding individual who had not planned to take part in acts of mass disorder. He had never pleaded guilty to the offence he had been charged with and had only agreed to terminate the criminal proceedings against him following the Amnesty Act because he could no longer stay in pre-trial detention owing to health issues. In the applicant's view, his ensuing prosecution and the severity of the charges against him had had the aim of discouraging him, other opposition supporters and the public at large from attending demonstrations.

33. The Court notes that the criminal proceedings against the applicant were terminated following the Amnesty Act. It reiterates in this connection that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a "victim" unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Öztürk v. Turkey [GC], no. 22479/93, § 73, ECHR 1999-�VI). In the instant case, the applicant was not entitled under the domestic law to compensation for damages or the restitution of various rights for the measures against him (see paragraph 21 above). Nor did the Zamoskvoretskiy District Court in its decision of 19 December 2013 acknowledge the alleged breach of the applicant's right to freedom of expression and freedom of peaceful assembly owing to those measures (see paragraph 17 above). The applicant may not therefore be considered to have lost his victim status on account of the termination of the criminal proceedings against him following the application of the Amnesty Act (see, mutatis mutandis, Gülcü v. Turkey, no. 17526/10, §§ 99-100, 19 January 2016).

34. On the other hand, regard being had to the essence of the applicant's complaints, the Court will examine whether despite the termination of the criminal proceedings he could still demonstrate that his pre-trial detention and prosecution for a criminal offence amounted to an interference with the exercise of his rights to freedom of expression and to freedom of peaceful assembly. It notes that criminal proceedings not culminating in a criminal conviction may, depending on the circumstances, amount to an interference with those rights (see Döner and Others v. Turkey, no. 29994/02, § 89, 7 March 2017).

35. The Court observes that the applicant was not convicted of the criminal offence of mass disorder, unlike those of his co-defendants who were ineligible to be amnestied (see Yaroslav Belousov, cited above, § 177). Therefore the detrimental consequences of his prosecution, as presented by the applicant, were limited to those which were connected with his pre-trial detention. The Court has previously found that his detention for one year and three and a half months was not justified under Article 5 § 3 of the Convention (see Kovyazin and Others, cited above, §§ 79-93), ) and that that preventive measure was associated with courtroom arrangements which constituted treatment contrary to Article 3 of the Convention (see paragraph 29 above).

36. In examining whether the same facts also gave rise to an interference with the applicant's rights under Articles 10 and 11 of the Convention, the Court notes the applicant's allegation that the excessively long pre-trial detention and the severity of the charges were intended to discourage him and other opposition supporters from attending demonstrations and participating in political debate. However, unlike in the case of the applicant's convicted co-defendant Mr Belousov, the Court does not find sufficient grounds to accept that allegation. Mr Belousov was charged under Article 212 of the Criminal Code of mass disorder which consisted of staying at the site of the rally and chanting anti-government slogans, in addition to a separate charge of violent acts against police officers under Article 318 of the Criminal Code. In that case the Court found that acts which were peaceful had accounted for a striking one-�and-�a-�half-year addition to the applicant's prison term (see Yaroslav Belousov, cited above, §§ 177-�78).

37. In the present case, by contrast, the charges of mass disorder accompanied by violence under Article 212 of the Criminal Code covered disorderly acts imputed to the applicant, namely turning over portable toilet cabins and piling them on the road to build a barrier obstructing the riot police. The judicial proceedings did not establish whether the applicant had indeed committed those acts because his prosecution was terminated before the end of the trial. The essential details relating to his conduct at the site of the rally remained unclear, and no assessment was given of the degree of violence in the impugned acts or the possible role of the applicant in the initial acts of aggression which led to the disruption of the public event. Consequently, the applicant has not demonstrated that the crowd-control measures complained of, or the ensuing criminal charges, related to the exercise of the right to peaceful assembly or to the political message expressed thereby. Accordingly, there are no grounds to conclude that the measures constituted an interference with the rights to freedom of expression or to freedom of peaceful assembly.

38. It follows that the complaints under Articles 10 and 11 of the Convention must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

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

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

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

41. The Court notes that this complaint is linked to the complaints examined above under Articles 10 and 11 of the Convention. Having regard to its findings in paragraphs 33-38, the Court considers that that this part of the application is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

42. 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

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

44. The Government contested the claim as unreasonable and excessive.

45. The Court observes that it has found a violation of Article 3 of the Convention in respect of the applicant. Making its assessment on an equitable basis, it awards the applicant EUR 7,500 in respect of non-�pecuniary damage.

B. Costs and expenses

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

C. Default interest

47. 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 that the complaint raised under Article 3 of the Convention concerning the applicant's confinement in metal cages in a courtroom is admissible and that the remainder of the application is inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds:

(a) that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent state at the rate applicable at the date of settlement;

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

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 29 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen PhillipsBranko Lubarda
RegistrarPresident