European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

 

CASE OF ASAINOV AND SIBIRYAK v. RUSSIA

 

(Applications nos. 16694/13and 32701/13)

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

4 December 2018

 

 

 

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

 

In the case of Asainov and Sibiryak 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 Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 13 November 2018,

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

PROCEDURE

1. The case originated in two applications (nos. 16694/13and 32701/13) 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 two Russian nationals, Mr Andrey Feritovich Asainov and Ms Mariya Igorevna Sibiryak ("the applicants"), on 22 February 2013 and 29 April 2013 respectively.

2. The first applicant (Mr Asainov) was represented by Mr K. Terekhov and Mr A. Navalnyy, lawyers practising in Moscow. The second applicant (Ms Sibiryak) was represented by Mr N. Zboroshenko, a lawyer practising in Moscow. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 28 August and 13 October 2014 the applications were communicated to the Government.

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

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The first applicant (Mr Asainov) was born in 1968 and lives in Moscow. The second applicant (Ms Sibiryak) was born in 1975 and lives in Mashabei Sadeh, Israel.

A. Demonstration of 6 May 2012

6. The background facts relating to the planning, conduct and dispersal of the demonstration 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. 2653/13and 60980/14, §§ 7-33, 4 October 2016). The parties' submissions on the circumstances directly relevant to the present cases 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 the 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 transpired 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, a 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. The applicants took part in the demonstration on 6 May 2012 at Bolotnaya Square. They were arrested at the venue of the event and taken to police stations, where they were charged with administrative offences and then convicted as charged by the justices of the peace.

B. The applicants' arrest and conviction for administrative offences

1. The first applicant (Mr Asainov)

9. According to the first applicant, on 6 May 2012 he had arrived at Bolotnaya Square to take part in the peaceful demonstration. Around 8.55 p.m. he had been arrested outside the venue of the event. Before his arrest, he had not committed any breach of public order or other offences and had not received any orders from the police.

10. According to the Government, the applicant, as a participant in the authorised demonstration, had broken through the police cordon and tried to pass to the Red Square. He had ignored the police orders to cease these actions and actively resisted the officers while being taken to the police van.

11. At 8.30 p.m. the first applicant was brought to the Fili-Davydkovo district police station in Moscow. At the police station an on-duty officer drew up a record of the applicant's administrative escorting for the purpose of compiling an administrative file. The administrative arrest record indicated that the applicant had been arrested at 8.30 p.m. at the police station and released at 11.05 p.m. on the same day.

12. After that a duty officer drew up an administrative offence record, stating as follows:

"... On 6 May 2012 at 8.30 p.m. at the Bolotnaya Square in Moscow [the applicant] took part in an authorised meeting... he broke through the police cordon and tried to enter Red Square, pushing police officers away. [The applicant] did not react to the multiple lawful demands of the police to cease these actions and actively resisted while being taken to the police van, thereby demonstrating his refusal to obey the lawful orders of the police officers and preventing them from fulfilling their service duties, in breach of Article 19.3 § 1 of the Code of Administrative Offences."

13. On 29 May 2012 the Justice of the Peace of circuit no. 100 of the Yakimanka District of Moscow examined the administrative charges against the applicant in his presence. On the basis of the statements of two police officers the court established that the applicant had committed an administrative offence under Article 19.3 § 1 of the Code of Administrative Offences, as described in the administrative offence record. The first applicant was sentenced to a fine of 500 Russian roubles ((RUB) - about 12 euros (EUR) at the time).

14. The first applicant appealed against the judgment to the Zamoskvoretskiy District Court of Moscow. On 7 June 2012 his wife, who had been an eye-witness to the events of 6 May 2012, submitted written statements to the court. According to her, she had come to take part in the authorised demonstration at Bolotnaya Square with her husband. They passed Yakimanka Street together with other participants, but when they approached Malyy Kamennyy Bridge the march stopped. After standing there and waiting for some time they decided to cease their participation in the event, but could not leave the venue and remained at the pavement. Around 8.30 p.m. the police told them to proceed to the metro station, which they did. On the way to the station at 8.55 p.m. her husband was arrested by the police officers, who gave no orders, and was taken to the police van. Then she went to the Fili-Davydkovo police station to wait for his release.

15. On 16 July 2012 the District Court examined and partly granted the applicant's request to exclude the written statements of the police officers as inadmissible evidence. The court summoned them to be examined at the hearing as witnesses. On 2 August the hearing was adjourned to 23 August 2012; the applicant's request to be represented by one more lawyer was granted. The applicant and his lawyer were duly summoned to that hearing.

16. On 22 August 2012 the first applicant sent a telegram to the Zamoskvoretskiy District Court asking to adjourn the hearing on the grounds that he was away from Moscow for family reasons.

17. On 23 August 2012 the District Court held a hearing in the absence of the applicant and his lawyers, having mentioned that none of them had lodged a request to adjourn the hearing. The court questioned two police officers, who stated that the applicant, together with other participants of the demonstration, had pushed through the police cordon and tried to approach the Kremlin; had pushed the police officers away; had thrown stones, glass bottles and smoke bombs; had disregarded multiple demands by the police to cease his actions; and had resisted arrest. The appeal decision did not mention the eye-witness statement submitted by the applicant's wife. Relying on the testimony of the police officers, the District Court upheld the first-instance judgment.

2. The second applicant (Ms Sibiryak)

18. According to the second applicant, she arrived at Oktyabrskaya metro station at 4 p.m. on 6 May 2012 to take part in the peaceful demonstration at Bolotnaya Square. She passed Yakimanka Street with other participants, but on approaching the square found the entrance blocked. Around 6.30 p.m. the police started to break the crowd up into groups and push them. Two police officers grabbed her hands and pushed her towards the police van. She did not breach public order and had not taken part in any acts of violence prior to her arrest. At around 9.05 p.m. the second applicant was brought to Khoroshevskiy district police station. After the police drew up an administrative offence record, she was released at around 1.40 a.m. on 7 May 2012.

19. According to the Government, the second applicant was arrested at 7.15 p.m. at Bolotnaya Square because she had been participating in breaking through the police cordon and had disregarded the police order to cease these acts and disperse. She was taken to the police station at 8.10 p.m. and released at 10.35 p.m. on the same day.

20. The logbook of persons brought to the Khoroshevskiy district police station indicated that the second applicant was taken there at 7.50 p.m. and released at 10.35 p.m. on 6 May 2012. The administrative file contained no record of the applicant being escorted to the police station. The record of administrative arrest compiled at 8.20 p.m. indicated that she had been taken to the police station at 8.10 p.m. and released later on the same day.

21. The second applicant was accused of having disobeyed a lawful police order, which was an offence under Article 19.3 § 1 of the Code of Administrative Offences. The administrative offence record stated as follows:

"On 6 May 2012 at 7.15 p.m. [the applicant] took part in an authorised meeting at Bolotnaya Square in Moscow, broke through the police cordon and tried to approach the Kremlin. [The applicant] did not react to the multiple lawful demands of the police officers to cease these actions, thereby preventing them from fulfilling their service duties ... in breach of Article 19.3 § 1 of the Code of Administrative Offences."

22. The administrative case-file contained a police officer's report which was drawn up on a template. The report contained no individualised information except the police officer's and the applicant's personal data. It substantially repeated the description of the applicant's acts contained in the administrative offence record. The report added that the applicant had thrown stones at the police, lit fireworks and resisted arrest.

23. On 30 May 2012 the Justice of the Peace of Circuit Court no. 100 of the Yakimanka District of Moscow examined the administrative charges against the applicant. The applicant was not present at the hearing, even though she had been summoned to attend. On the basis of the police officer's report, the applicant was found guilty under Article 19.3 § 1 of the Code of Administrative Offences and was sentenced to a fine of RUB 500 (about EUR 12 at the time).

24. On 13 November 2012 the Zamoskvoretskiy District Court of Moscow examined the applicant's appeal in her presence and upheld the first-instance judgment. The second applicant's request to have the police officers who had arrested her examined at the hearing was dismissed. However, at her request, the court examined a witness of defence who stated that the applicant had not participated in breaking through the police cordon and had not committed any unlawful acts. The witness's statements were dismissed by the court as unreliable evidence on the grounds that he was the applicant's friend. Furthermore, the court considered that the applicant had been duly summoned to the first-instance hearing by telephone but had failed to appear or to lodge a request for its adjournment.

25. On 15 April 2013 the Deputy President of the Moscow City Court examined the applicant's administrative case in supervisory review proceedings and upheld the earlier judicial decisions.

II. RELEVANT DOMESTIC LAW

26. For a summary of the relevant domestic law, see Frumkin , cited above, §§ 77-79, ECHR 2016 (extracts).

THE LAW

I. JOINDER OF THE APPLICATIONS

27. Given their common factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

28. The applicants complain that the administrative proceedings in their cases fell short of the guarantees of a fair hearing, including the principles of equality of arms, adversarial proceedings, independence and impartiality of the tribunal, and also that they had been prevented from calling and examining key witnesses. They relied on Article 6 of the Convention, the relevant part of which reads as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law."

A. Admissibility

29. The Government submitted that Article 6 of the Convention was not applicable to the impugned proceedings, because the applicants had been charged with an administrative rather than a criminal offence. They further contended that the applicants had been given a fair opportunity to argue their cases before the domestic courts. In particular, the first applicant and his lawyers had been summoned to the appeal hearing in good time, and the first applicant's request for adjournment had arrived after the hearing.

30. The Court has previously found that Article 6 of the Convention was applicable under its criminal limb to proceedings involving charges under Article 19.3 of the Code of Administrative Offences punishable by a fine or administrative detention (see Frumkin , cited above, § 155; Mikhaylova v. Russia , no. 46998/08, §§ 71-74, 19 November 2015; Navalnyy and Yashin v. Russia , no. 76204/11, § 78, 4 December 2014; and Nemtsov v. Russia , no. 1774/11, § 83, 31 July 2014). The Court sees no reason to reach a different conclusion in the present case and considers that the proceedings in question fall to be examined under the criminal limb of Article 6.

31. As regards the applicants' complaint that either first-instance or appeal proceedings were held in their absence, the Court observes that both of them had been informed in timely fashion of the date and place of hearings. However, they failed to notify the domestic courts in advance about their inability to attend the hearings. Moreover, on the first applicant's motion the hearing had been adjourned at least twice. Besides, he had a lawyer who could represent him before the court in his absence. The second applicant provided no explanation either for her non-attendance at the first-�instance hearing or for her failure to lodge a request for its adjournment. It follows that this complaint is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.

32. The Court further notes that the complaints about the absence of a prosecuting party, the dismissal of defence evidence and the applicants' inability to question key witnesses are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It observes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties' submissions

33. The first applicant claimed that he had had no opportunity to cross-�examine two police officers who were the only witnesses against him. Furthermore, he was deprived of the opportunity to have a defence witness's statement admitted as evidence in the trial. The second applicant submitted that the domestic courts had dismissed the testimony of the defence witness favourable to her while attaching importance to the written statement of the police officer, whom she had not been able to question at the trial. Finally, both applicants argued that in the absence of a prosecuting party the trial judges had taken on the role of the prosecution. The courts had therefore not been "independent and impartial" within the meaning of Article 6 of the Convention.

34. The Government contended that the domestic courts had examined the evidence of the defence and properly assessed it in the cases of both applicants. In the Government's view the fact that the domestic courts had emphasised the police officers' statements could not as such be regarded as non-compliance with the requirement of fairness enshrined in Article 6 of the Convention. Moreover, in the case of the second applicant the courts questioned a defence witness on her motion. Furthermore, the Government argued that the Code of Administrative Offences did not provide for the mandatory participation of a public prosecutor in each case concerning an administrative offence. Their submissions in that respect were similar to those made in Karelin v. Russia (no. 926/08, §§ 45-48, 20 September 2016).

2. The Court's assessment

35. The Court observes that the applicants' conviction for the administrative offence of disobeying lawful police orders was based exclusively on the version of the events put forward by the police. It further notes that in the case of the second applicant the police report was drawn up using a template and contained no individualised information apart from the police officer's and the applicant's personal data. Both applicants contested the accusations, and in each case an eye-witness confirmed their allegations, but the domestic courts either failed to admit this evidence (the first applicant's case) or dismissed the witness's statements presuming bias on his part (as regards the second applicant). Lastly, the appellate court refused to call and question the police officer who had arrested the second applicant, although there had been no stated impediment, and the applicant was not given any other opportunity to confront him.

36. It follows that the only evidence against the applicants was either not tested in the judicial proceedings or was examined in the applicant's absence. In any event, the domestic courts based their judgments exclusively on the police officers' statements and refused to accept additional evidence. The Court considers that given the dispute over the key facts underlying the charges, where the only evidence against the applicants came from 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 check their incriminating statements, namely whether the applicants had participated in breaking through the police cordon (see Kasparov and Others v. Russia , no. 21613/07, § 64, 3 October 2013). Failure to do so ran contrary to the fundamental principles of criminal law, namely in dubio pro reo (see Frumkin , cited above, § 166, and the cases cited therein). 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 was given (ibid.).

37. 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.

38. In view of these findings, the Court does not consider it necessary to address the remainder of the applicants' complaints concerning the alleged breach of the objective impartiality requirement under Article 6 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

39. The applicants alleged a violation of their right to peaceful assembly. They complained, in particular, about the disruptive security measures implemented at the site of the meeting at Bolotnaya Square, the early termination of the assembly and their arrest followed by their conviction for administrative offences. They relied on Article 11 of the Convention, which, in so far as relevant, provides:

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 ..."

A. Admissibility

40. The Court 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

1. The parties' submissions

(a) The Government

41. The Government's submissions as regards the general measures implemented at Bolotnaya Square were identical to those in Frumkin (cited above, §§ 83-85). As regards the particular circumstances of the case, they alleged that the applicants had incurred sanctions for failing to obey police orders to leave the site of the public assembly at the end of the authorised meeting. The charges brought against the applicants had stemmed from a specific act of disobedience committed after the end of the authorised meeting, rather than from their disagreement with the decision to terminate the meeting earlier.

42. The Government considered that there had been no interference with the exercise of the applicants' rights to peaceful assembly, and that in any event the penalty imposed on them, that is a RUB 500 fine, had not been disproportionate. They concluded that both the general measures taken in relation to the assembly as a whole and the individual measures taken against the applicants personally had been justified under Article 11 § 2 of the Convention. They considered that these measures complied with domestic law, were necessary "for the prevention of disorder or crime" and "for the protection of the rights and freedoms of others", and remained strictly proportionate.

(b) The applicants

43. The applicants pointed out that the interference with their rights under Article 11 of the Convention had not been lawful. The police had had no power to give them orders because they had not committed any administrative or criminal offence. The authorities had failed to effectively inform the demonstrators of the termination of the assembly and of the order to disperse. The applicants had been unaware of their decision to end the assembly. They pointed out that under domestic law the police were required to suspend the assembly first, and to give the organisers time to remedy any breach, before they could terminate it. However, in the present case no time had been given either to the organisers or to the demonstrators to follow the police instructions to disperse.

44. As regards their apprehension, the applicants claimed that they had acted peacefully and had committed no unlawful acts. Prior to their arrest the police had given them no warnings and no orders which they could have disobeyed. All in all, they considered that the dispersal of the demonstration, their arrest and the ensuing conviction were not "necessary in a democratic society".

2. The Court's assessment

(a) Whether there has been an interference with the exercise of the right to freedom of peaceful assembly

45. The Court has previously held that the assembly at Bolotnaya Square on 6 May 2012 fell within the scope of Article 11 of the Convention (see Yaroslav Belousov v. Russia , nos. 2653/13and 60980/14, §§ 168-71, 4 October 2016). It has also found that the domestic authorities failed to discharge their positive obligation to ensure the peaceful conduct of that assembly (see Frumkin v. Russia , cited above, §§ 93-130). Noting that the present case contains no element capable of altering this conclusion, the Court adheres to that finding.

46. As to whether the applicants personally could rely on the provisions of Article 11, the Court recalls that peaceful participants in a demonstration marred by isolated acts of violence committed by other participants do not cease to enjoy the right to peaceful assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 94, ECHR 2015, and Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004). It does not transpire from any submissions that the applicants were among those responsible for the initial acts of aggression which contributed to the deterioration of the assembly's originally peaceful character. As regards breaking through the police cordon imputed to the applicants, they denied having pushed through the cordon, and even if the applicants found themselves beyond the cordon, there is no evidence that it had been the result of their deliberate effort. According to the material in the case-file, the police cordon had collapsed because of the pressure of the crowd which had built up owing to the unexpected and unannounced change by the authorities of the venue layout (see also Frumkin , cited above, §§ 113-16 and §132). Apart from that, the applicants' behaviour remained strictly peaceful. The Court therefore considers that the applicants enjoyed the protection of Article 11 in the present case.

47. As to whether the applicants' right to freedom of assembly has been interfered with, the Court recalls that measures taken by the authorities during a rally, such as dispersal of the rally or the arrest of participants and penalties imposed for having taken part in a rally, amount to an interference (see Kasparov and Others , cited above, § 84, with further references). The Court therefore considers that the termination of the demonstration, the applicants' arrest at the venue of the event and conviction for administrative offences constituted interference with their right to freedom of peaceful assembly.

(b) Whether the interference was justified

48. The Court has examined the circumstances surrounding the termination of the demonstration at Bolotnaya Square in Frumkin, cited above , §§ 131-36, where the parties' submissions had been substantially the same as in the present case. As in Frumkin , the Court will abstain from analysing the manner in which the police dispersed the protestors at Malyy Kamennyy bridge, as it falls outside the scope of the applicants' case. It will examine the actions taken against the applicants personally.

49. It is in dispute between the parties whether the applicants were arrested before or shortly after the time-slot originally authorised for the assembly, especially as regards the second applicant. However, for the purposes of the analysis under Article 11, it is sufficient to note that even if the applicants were on the wrong side of the time-limit, measures taken against them after an assembly has ended fall within the scope of that provision (see Frumkin , cited above, § 138). It follows that these measures had to have complied with the law, pursued a legitimate aim and been necessary in a democratic society within the meaning of Article 11 § 2 of the Convention.

50. The applicants contested the lawfulness of the measures taken against them, alleging, in particular, that the police had had no grounds to give them orders to disperse. The Court considers that in this case the questions of compliance with the law and of the existence of a legitimate aim cannot be dissociated from the question whether the interference was "necessary in a democratic society", and that there is no need to examine them separately (see, for similar reasoning, Nemtsov , cited above, § 75).

51. The Court is mindful of the authorities' submission that the enhanced security measures, and in particular, the crackdown on those charged with offences committed on 6 May 2012 on Bolotnaya Square, were specifically aimed at preventing illegal campsites from being set up (see Frumkin , cited above, § 139). At the same time, the applicants were not arrested and sanctioned for breaching the rules on public assembly. Even if their presence at the meeting venue after its closure were to be considered as a manifestation of their objection to the termination of the assembly, that was not the offence with which they were charged. According to the domestic courts and the Government's submissions, they were arrested, detained and sentenced to administrative fines because they had participated in breaking the police cordon and disobeyed lawful police orders to cease these actions and disperse.

52. The Court further notes that both applicants contested the administrative charges against them on the grounds that the underlying events had not, in fact, taken place. It has found that the domestic courts failed to establish key facts in the administrative proceedings against the applicants, namely whether they had received an order from the police, or that it was lawful, or that the applicants had disobeyed it. In the overall context of the clashes between the police and protesters which had occurred at Bolotnaya Square, it was incumbent on the domestic courts to establish whether the applicants had indeed been involved in breaking through the police cordon. On the contrary, they rejected the applicants' accounts of events supported by other evidence, including testimony of eyewitnesses, and relied on the police statements and reports. The domestic courts' decisions disclose no attempt to establish the relevant facts on the basis of comparative assessment of the conflicting testimonies of the applicants, the defence witnesses, and the police officers. In the absence of an adequate assessment of the relevant factual and legal elements of the case on their part, the domestic courts cannot be said to have "applied standards which were in conformity with the principles embodied in Article 11" (see Annenkov and Others v. Russia , no. 31475/10, § 139 and the cases cited therein, 25 July 2017).

53 . The Court, therefore, is not satisfied that the reasons adduced by the national authorities to justify the interference under Article 11 of the Convention, namely the applicants' arrest at the site of the venue and their conviction for administrative offences, were relevant and sufficient. It must be stressed, moreover, that the measures taken against the applicants must have had the effect of discouraging them and others from attending protest rallies and, more generally, from participating in open political debate. The chilling effect of the sanctions imposed on them was further amplified by the large number of arrests made on that day, which attracted wide media coverage.

54. There has accordingly been a violation of Article 11 of the Convention in respect of each applicant.

IV. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

55. The second applicant also complained that the termination of her participation in a public assembly, her arrest and conviction for administrative offences had pursued the aim of undermining her right to freedom of assembly. She alleged a violation of Article 18 of the Convention, which 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."

56. In their submissions under this head the parties reiterated their arguments as regards the alleged interference with the right to freedom of assembly and the guarantees of a fair hearing in the administrative proceedings.

57. The Court notes that this complaint is linked to the complaints examined above under Articles 6 and 11 and must therefore likewise be declared admissible.

58. The Court has already found that the applicant's arrest and administrative conviction were not justified, and that this had had the effect of preventing or discouraging her and others from participating in protest rallies and engaging actively in opposition politics (see paragraph 53 above).

59. Having regard to those findings, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 18 of the Convention.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

60. The Court has examined the complaint under Article 5 § 1 of the Convention submitted by the second applicant. However, having regard to all the material in its possession, and in so far as this complaint falls within the Court's competence, it finds that it does 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 being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

61. 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

62. The first applicant claimed 11,000 euros (EUR), and the second applicant claimed EUR 20,000 in respect of non-pecuniary damage.

63. The Government contested the claim of the first applicant as excessive and unreasonable. As regards the second applicant's claim, they considered that if the Court were to find a violation of the Convention in that case, this finding would constitute in itself sufficient just satisfaction. They stated that at all events, any award to be made by the Court should take into account the second applicant's individual circumstances, in particular the circumstances of her arrest, the courts' approach to the examination of her case and the gravity of the penalty.

64. The Court has found a violation of Articles 6 and 11 of the Convention in respect of each applicant. Making its assessment on an equitable basis, it awards each applicant EUR 7,500 in respect of non-�pecuniary damage.

B. Costs and expenses

65. The first applicant also claimed EUR 1,600 for his legal representation in the proceedings before the Court.

66. The Government contested the claim on the grounds that there was no proof that these legal fees had actually been incurred.

67. 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. The Court notes that the applicant submitted no documentary proof, such as legal-services contracts with his representatives, payment receipts or invoices, that he had a legally enforceable obligation to pay for the lawyer's services or that he had in fact paid them. Regard being had to these considerations and to its case-law, the Court rejects the first applicant's claim for costs and expenses (see Novikova and Others , nos. 25501/07and 4 others, § 235, 26 April 2016).

C. Default interest

68. 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. Decides to join the applications;

 

2. Declares the complaints concerning the lack of a fair hearing and the breach of the objective impartiality requirement in the administrative proceedings under Article 6, the complaints under Articles 11 and 18 of the Convention admissible and the remainder of the applications inadmissible;

 

3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the failure to ensure the fairness of the administrative proceedings in respect of each applicant;

 

4. Holds that there has been a violation of Article 11 of the Convention in respect of each applicant;

 

5. Holds that there is no need to examine the complaint under Article 18 of the Convention;

 

6. Holds

(a) that the respondent State is to pay each 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

7. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 4 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Branko Lubarda
Deputy Registrar President