European Court of Human Rights

 

 

 

THIRD SECTION

 

 

CASE OF ANDRUSHCHENKO v. RUSSIA

(Application no. 33938/08)

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

24 March 2020

 

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

In the case of Andrushchenko v. Russia,

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

          Alena Poláčková, President,
          Dmitry Dedov,
          Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,

Having deliberated in private on 3 March 2020,

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

PROCEDURE

1.  The case originated in an application (no. 33938/08) 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 Nikolay Stepanovich Andrushchenko (“the applicant”), on 6 May 2008. The applicant died on 19 April 2017. On 29 April 2017 Mrs Lyudmila Nikolayevna Andrushchenko, the late applicant’s wife, notified the Court of her wish to pursue the pending application in her late husband’s stead.

2.  The applicant and Mrs Andrushchenko were represented by Mr K. Kuzminykh, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented 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 29 September 2016 notice of the complaints under Article 3, Article 5 § 3, Article 10 and Article 13 (in conjunction with Articles 3 and 10) of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1943 and lived in St Petersburg.

A.    The applicant’s article “Bloody Saturday of 3 March 2007”

5.  The applicant was a member of the editorial board of New Petersburg, a local newspaper for which he wrote various articles. Some 50,000 copies of this newspaper were distributed.

6.  Between April and July 2006 he wrote four articles concerning the trial of a group of four people accused of murdering a foreign national in a racist attack.

7.  On 7 March 2007 the newspaper published an article by the applicant entitled “Bloody Saturday of 3 March 2007” relating to a protest demonstration which had taken place on 3 March 2007 and its forcible dispersal by the police, officers of the Special Forces (“the SF”) and the Federal Security Service (“the FSB”). It read as follows:

“... The official coup by Valentina Matviyenko and Vladislav Piotrovskiy in St Petersburg brings us to consider the current political regime as defunct and to start its gradual democratic deconstruction. Blood shed at the streets of the besieged Leningrad brings us to consider the powers of Vladimir Putin and Valentina Matviyenko as null. This is to come.

All starts some forty minutes before the March of Dissenters ... by those who dissent from the fascism of the Russian State ... Around the venue one can see lots of cops’ vehicles ... Among the cops and SF officers in black fascist uniforms one can spot numerous ‘bloodhounds/bandogs’ (‘шныри’) from the Federal Security Service ... All the area is kettled and guarded by subhumans in black who behave arrogantly like occupiers and pretend to be some kind of power showing its contempt to Leningrad ... One ‘bloodhound/bandog’ from the cops’ office or the FSB is squeaking on his walkie-talkie, ‘Track [that person]!’ ... And this is long before the start of the demonstration ... Those bastards from the armed forces tracked free citizens of our city, apparently without a court order and before those citizens engaged in any activities. And then another voice saying, ‘I don’t care about that one ... Keep a watch on Limonov. The office wants him for sure.’

And then the well-organised and peaceful group starts to march ... Another hog in plain clothes is mumbling on his walkie-talkie, ‘No blows to the faces. Hit them in the kidney area. Leave no traces ...’

Around the demonstration there are lines of wooden soldiers ... against the elderly and the kids. Against Leningrad! ... Among the FS officers one fat shorty is particularly brutal. Probably with an inferiority complex and with a twisted mouth full of rotten teeth, he is hitting people all around, he is picking girls from the crowd and dragging them to buses ... He is not going against males (maybe he is impotent) ...

The demonstration is advancing ... Cops’ cordons are squeezing people like the lice ... Now occupiers in fascist uniforms are beating [name], member of the city parliament ... The crowd of black occupiers is trying to pull one of theirs from the protesters ...”

8.  On 21 June 2007 the newspaper published the applicant’s article “Time to buy guns: Putin’s oprichniks kill souls and the faith”. It contained critical statements about an unrelated trial, the role of the prosecution and the jury. It read as follows:

“... And various pictures run through my head. [One of the defendants], who is wearing sunny white clothes, looks lost and turns his head while a huge court bailiff is pushing him towards the courtroom’s metal cage. I shake [the defendant’s] hand, it is cold. It is not alive, the State fascists have killed his soul! I then say something in passing and hear myself saying ‘We are going to punish them soon’. And then ask myself ‘Who are ‘them’?’ And I answer that, ‘We are going to punish all those who kill justice, souls and the faith’ ... And then I remembered that [the defendant’s] face was like Gavroche’s face in the Bastille museum in Paris ... When you look at that painting, you cannot but hear La Marseillaise and the call of that Great Revolution (so distant but close at the same time): ‘To arms, citizens!’”

9.  On 10 September 2007 the chief of the Organised Crime Unit of the St Petersburg Department of the Interior sought judicial authorisation to intercept the applicant’s telephone conversations. The City Court authorised the interception for 180 days.

10.  Between 16 and 19 November 2007 the newspaper also published several other articles written by the applicant about allegations of corruption in respect of senior officials. Allegedly, all the copies of the relevant editions were bought by police officers.

B.     Criminal proceedings against the applicant and his arrest and detention

11.  On 22 November 2007 a criminal investigation was opened against the applicant under Articles 294 (obstruction of a criminal investigation and justice) and 298 (defamation of a judge/juror/prosecutor involving accusations of a serious or particularly serious criminal offence) of the Criminal Code. It was considered that the articles published in 2006 had interfered with the course of justice in that they could have influenced jurors sitting on the trial in question, which was pending at the time. It was also noted that in June 2007 the applicant had written another article suggesting that he knew some of the jurors, had provided them with information and had managed to obtain a recording of their deliberations. He had also allegedly made death threats to the jurors since the article was entitled “Time to buy guns ...” and contained a promise to punish those responsible for “neglecting the presumption of innocence and kill[ing] the four Russian boys’ faith in justice” (see also paragraph 8 above). In the investigator’s view, the above article disclosed offences under Articles 294 and 298 of the Criminal Code. Lastly, it contained defamatory statements about the judge presiding at that trial, the public prosecutor M. and others, accusing them of rendering or assisting in rendering a premediated unlawful judgment.

12.  On the same date another investigator initiated criminal proceedings against the applicant under Article 129 of the Criminal Code.

13.  On 22 and 23 November 2007 officers of the Organised Crime Unit allegedly blocked the publication of the new edition, including one of the applicant’s articles.

14.  On 23 November 2007 the applicant was arrested.

15.  On 24 November 2007 the Dzerzhinskiy District Court of St Petersburg upheld the applicant’s arrest and authorised his detention pending the completion of an investigation under Articles 294 and 298 of the Criminal Code, pre-trial detention being permitted in respect of offences punishable by at least two years’ imprisonment. The court provided the following reasons.

(i)  It was satisfied that there was a justifiable reasonable suspicion against the applicant and that the available material confirmed that the applicant might be implicated in the offences for which a criminal investigation had been opened.

(ii)  While the offences under Articles 294 and 298 of the Criminal Code were punishable by up to two years’ imprisonment and a longer prison term respectively, the seriousness of the actual charges disclosed that they were more dangerous.

(iii)  There was a risk that, if at large, the suspect would continue his criminal activities and, as an aggravating element, via the mass media outlets to which he had access. He might also obstruct the investigation by threatening “participants to the proceedings” and impeding the collection of evidence or by fleeing justice.

(iv)  The material placed before the court was insufficient for the allegation that the suspect’s state of health would be incompatible with detention in a remand centre as it would, in any event, have facilities for providing medical care.

16.  On 30 November 2007 the investigator ordered that the applicant undergo an inpatient psychiatric examination, which lasted until February 2008. Allegedly no investigative measures were carried out during that period.

17.  On 22 January 2008 the District Court extended the applicant’s detention until 21 March 2008. The court held as follows.

(a)  As the applicant had been a deputy director of the publishing house and the author of articles published in New Petersburg and as the charges concerned offences against the administration of justice, the charges disclosed a heightened danger to the public and a risk that the applicant might “continue his criminal activity”.

(b)  As the applicant had expressed threats to the lives and limbs of the jurors in his article in 2007 and as the investigator had yet to interview those people, there was a risk that the applicant might interfere with the investigation. The court noted that there was a pending case relating to the suspension of the newspaper’s circulation.

18.  On an unspecified date the activities of the applicant’s newspaper and its editorial board were suspended. The applicant was apparently no longer employed there.

19.  In February 2008 further charges were brought against the applicant under Article 319 of the Criminal Code.

20.  In March 2008 the applicant was accused of committing an offence under Article 280 of the Criminal Code (public appeals to engage in extremist activity) in relation to his article “Bloody Saturday of 3 March 2007” (see paragraph 7 above).

21.  His subsequent detention was extended in relation to the charges pending under Articles 294, 298 and 280 of the Criminal Code.

22.  In April 2008 additional charges were added under Article 319 of the Criminal Code in relation to some of the published articles and under Article 294. The charges under Article 298 were reclassified under Article 319 (as regards the insult against prosecutor M.).

23.  In May 2008 the case against the applicant in respect of the charges under Articles 129, 280 and 319 of the Criminal Code was submitted to the District Court for trial.

24.  On 20 May 2008 the District Court dismissed the prosecutor’s request to extend the applicant’s detention and ordered his release. He was ordered not to leave his area of residence. The court referred to the following factors.

(i)  Following the reclassification of the specific charges, the relevant statutory offences were regarded as “minor” or “moderately serious” according to the domestic legal classification.

(ii)  Since the activity of the newspaper and its editorial board had been suspended and the defendant was no longer employed there, there was no longer a risk of him continuing any criminal activities.

(iii)  The investigation had been completed and the prosecution’s evidence had been collected and submitted to the court. There was therefore no longer a risk of the applicant obstructing justice by threatening participants in the case or destroying or obstructing the collection of evidence.

(iv)  The applicant’s advanced age and state of health, namely the presence of serious chronic diseases that posed a direct threat to his life and the need for him to undergo regular skilled medical care, which was “not doubted by the court”.

25.  The defence adduced in evidence a specialist report compiled by Mr D., who had degrees in ethnology and history. Mr D. assessed the applicant’s articles, including his article “Bloody Saturday of 3 March 2007”. Mr D.’s report read in the relevant parts as follows:

“The impugned articles are journalistic works using expressive and emotive wording that are specific to this genre. Their topics concern a conflict around the Dissenters’ March: the articles provide a detailed view of it through the eyes of an eyewitness ...

The journalistic genre of the impugned articles allows for relatively harsh, or at times radical, assessments. The main topics of the articles touch upon the political situation in the country - they are full of harsh value judgments and metaphors that disclose the author’s negative attitude towards certain events.

As to the article ‘Bloody Saturday of 3 March 2007’, the author expresses, in a critical manner, his attitude toward the Russian State’s law enforcement agencies in the context of a protest rally on 3 March 2007. There was a conflict between those who had organised the rally and law enforcement officers. Thus the author uses a harsh and radical metaphor of ‘occupation’ while presenting law enforcement officers as ‘occupiers’ who, in the author’s view, struggled against the people they were serving ...”

26.  On 22 June 2009 the District Court convicted the applicant under Article 282 of the Criminal Code as regards the article entitled “Bloody Saturday of 3 March 2007”. The trial court reclassified the charges under Article 280 to Article 282 of the Criminal Code (which was arguably less stringent), which concerned acts aimed at inciting hatred or enmity or at the abasement of the dignity of members of a “social group”, namely law enforcement officers, through the use of the mass media. It convicted the applicant, stating:

“The expert report indicates that the writer of the article takes a particularly aggressive and critical stance towards the Russian State’s law enforcement authorities in relation to the [opposition march] held on 3 March 2007. The writer used phrases like ‘Russian State fascism’ or ‘police regime’ to describe the Russian political system ... which implies that elements of fascism or a police regime, including violence and arbitrariness, are inherent in the political system in Russia.

The writer used words relating to the theme of fascism in relation to the law enforcement authorities or Federal Security Service (FSB), for instance:

‘There were numerous FSB “bloodhounds/bandogs” among the cops and Special Squad men in black fascist uniforms [also called ‘subhumans in black’ by the writer] ...

... Cops behave arrogantly, like occupiers, pretending to be some kind of power showing its manifest contempt to Leningrad ...

... a driver in black sits in his car and grins. Here he is the INVADER of Leningrad!

INVADERS IN FASCIST UNIFORMS ... as one FASCIST ... A bunch of BLACK OCCUPIERS ... OCCUPIERS IN BLACK ...’

...

The Court has no doubts, and this is confirmed by the expert report and not refuted by the specialist report, that the article contains an extremely negative emotional assessment of the social group that includes law enforcement officers. The article creates a negative attitude toward that social group, namely the feeling of hatred, causing enmity on the part of other citizens.

Enmity and the disparagement of dignity are directed against law enforcement officers, who are a group of people interacting with each other in a specific manner and who perceive their own membership of that group and are perceived as such by others. Furthermore, the group fulfils a function which is necessary for society. Taken as a whole, the above elements indicate that law enforcement officers are a ‘social group’ within the meaning of the anti-extremist legislation.

Incitement to hatred and enmity arose on account of attributing - to all members of that social group - extremely negative traits, coupled with insulting statements. Clearly, this forms a negative social stereotype and an impression that members of that group are hostile. As to the debasement of dignity, firstly, it was expressed through the comparison between law enforcement officers and fascist occupiers, who are absolutely immoral people. Taken together with other, extremely unfavourable, assessments of individual traits of certain protagonists of the article: ... ‘hog in plain clothes’, ‘FSB bloodhounds/bandogs’, the statements made by the defendant should be characterised as indecent and debasing the honour and dignity of members of the social group ...

The court notes that at present there is no specific licensed procedure for producing expert reports for assessing whether material distributed by mass media outlets encourages enmity. Thus the court takes into account the expert reports produced by professionals in the areas of psychology and linguistics as well as Mr D.’s specialist opinion ...”

The trial court sentenced the applicant to a one-year suspended sentence of imprisonment in relation to the charge under Article 282 of the Criminal Code. The prison term was deemed served because of the expiry of the relevant statutory time-limit for enforcing the sentence.

27.  At the same time, the trial court acquitted the applicant in relation to certain other articles and related offences under Articles 129, 280 and 319 of the Criminal Code.

28.  The applicant appealed to the City Court, arguing that his negative assessment of the political regime and work of the public authorities fell outside the scope of Article 282 of the Criminal Code since it was unjustified to apply the classification of a “social group” in the circumstances of the case.

29.  On 20 October 2009 the City Court upheld the trial judgment, in particular as regards Article 282 of the Criminal Code.

C.    Conditions of detention

1.    The applicant’s account

30.  From the night of 23 to 24 November until 26 November 2007 the applicant was held in a temporary detention centre. The temperature in his cell was around 0^oC, and the walls were covered with ice. He was given no mattress, blanket or warm clothes. According to the applicant, at the time the central heating system had broken down and was undergoing repair works. It appears that his next of kin and friends tried to provide him with clothing but the investigator in charge of the case (or another public official) stopped him from receiving them. It appears that except for a detention hearing on 24 November 2007 (see paragraph 15 above) the applicant was kept in the cell for most of the time.

31.  On 26 November 2007 the applicant was transferred to remand centre no. 47/4 and placed in cell no. 80 which had fifteen beds for twenty‑seven detainees. From 29 November to 4 December 2007 he was kept in a dark “punishment cell” in a humid basement with water on the floor and moisture on the walls. In the main body of the remand centre the bedding was bug-infested and was only washed once in five months. The drinking water came from the general drainage system, without any filtering. It had a heavy metallic taste and contained chemicals that were dangerous for one’s health.

32.  It appears that at the time the applicant was suffering from high blood pressure, and had medical conditions relating to his eyes and his heart function.

2.    The Government’s account

33.  From 24 to 26 November 2007 the applicant was held in a temporary detention centre. The centre was fully equipped, including a central heating system, in compliance with the applicable legislation. It had 37 cells for 107 detainees. From 24 to 26 November 2007 it accommodated between thirteen and twenty-three people.

34.  From 26 November 2007 to 20 May 2008 the applicant was held in detention centre no. 47/4. From 26 to 28 November 2007 he was kept in cell no. 80 accommodating four people. From 28 November to 3 December 2007 he was kept in cell no. 0/4 alone. Thereafter, he was kept in different cells accommodating between two and four people. The applicant was provided with an individual sleeping place and bedding.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A.    Suppression of Extremism Act

35.  Prior to August 2006 section 1 of the Suppression of Extremism Act (Federal Law no. 114-FZ on Combatting Extremist Activity, 25 July 2002) defined extremist activity/extremism as:

(i)  forcible change of the constitutional foundations of the Russian Federation and breach of its territorial integrity;

(ii)  undermining the national security of the Russian Federation;

(iii)  usurpation of power;

(iv)  founding armed criminal groups;

(v)  carrying out terrorist activity;

(vi)  inciting racial, national/ethnic, religious hatred or social hatred accompanied by violence or calls for violence;

(vii)  diminishing national pride;

(viii)  creating mass disorder and committing acts of large-scale hooliganism or large-scale vandalism out of ideological, political, racial, national/ethnic or religious hatred or enmity, or out of hatred or enmity towards a social group;

(ix)  propaganda promoting the exceptionality, superiority or inferiority of people on the grounds of their religion, social position, race, nationality/ethnic origin or language;

(x)  propaganda and public display of Nazi attributes or symbols or attributes or symbols similar to Nazi attributes or symbols to the point of becoming undistinguishable;

(xi)  public appeals to carry out the aforementioned acts;

(xii)  funding the aforementioned acts or giving any assistance in preparing and carrying them out, including by providing training, printing and material/technical support, telephone or other means of communications or information services.

36.  In August 2006 the above list was amended to include:

(i)  public justification of terrorism;

(ii)  obstruction of the lawful activities of State authorities, electoral commissions and their officials, combined with violence or threats of the use thereof;

(iii)  public defamation of a State official of the Russian Federation or its constituent entities during the exercise of his or her official duties or in connection with those duties, including accusations of committing the acts mentioned in section 1 of the Act (provided that defamation was proven before a court);

(iv)  use of violence or threats of violence against a State official or his or her next of kin in relation to his or her official duties;

(v)  an assassination attempt in respect of a State official or public figure, committed with the aim of putting an end to his or her public or other political activity or as a measure of revenge for that activity;

(vi)  violation of an individual’s rights and freedoms or damage to health or property on account of his or her religion, race, ethnicity, social position or social origin.

37.  In August 2007 the list was amended further and new definitions of extremist activity were added.

B.     Criminal offences of an extremist nature

1.    Article 280 of the Criminal Code

38.  Article 280 punishes public appeals to engage in extremist activity (Article 280 § 1) and the same offence committed via the mass media (Article 280 § 2). The latter offence was punishable at the time by either compulsory labour or up to five years’ imprisonment.

2.    Article 282 of the Criminal Code

39.  Article 282 § 1 of the Criminal Code prohibits acts aimed at inciting hatred or enmity and the abasement of the dignity of a person or a group of persons on the basis of sex, race, nationality, language, origin, attitude to religion or affiliation to a social group. Acts committed in public or by the use of the mass media are punishable by up to two years’ imprisonment. On 22 April 2010 the Constitutional Court of Russia declared inadmissible a complaint of the vagueness and insufficient foreseeability of the term “social group” (decision no. 564-O-O of 22 April 2010). The relevant part of the decision reads:

“... Article 282 of the Criminal Code of Russia punishes acts aimed at inciting hatred or enmity and the abasement of human dignity. This provision ... guarantees recognition and respect for human dignity regardless of any physical or social attributes, and establishes criminal liability only for acts committed with direct intent and aimed at inciting hatred or enmity and the abasement of the dignity of a person or a group of people. This legal provision does not therefore lack foreseeability and may not be considered to be a breach of the applicant’s constitutional rights.”

3.    Ruling no. 11 of the Supreme Court of Russia

40.  On 28 June 2011 the Plenary Supreme Court issued ruling no. 11 concerning criminal cases relating to extremism. The following instructions were given to the lower courts.

(i)  Protection for the public interest (such as constitutional foundations, territorial integrity and national security) should be secured and constitutional rights and freedoms (such as religious freedoms, freedom of expression, the freedom of the mass media to seek, receive and impart information by lawful means, and freedom of assembly) should be safeguarded.

(ii)  “Extremist cases” should be distinguished from other cases on account of the special motive that must be proven (namely political, ideological, racial, ethnic or religious hatred or enmity, or motives of hatred or enmity in relation to a social group).

(iii)  Public appeals to engage in extremist activities (in terms of Article 280 of the Criminal Code) are defined as public appeals to others (by any means, including via the Internet) with the aim of inciting them to engage in extremist activities. At the same time, public dissemination of information arguing for or justifying unlawful acts on the grounds of race, ethnicity, religious beliefs and the like should instead be classified under Article 282 of the Criminal Code.

(iv)  “Acts aimed at inciting hatred or enmity” should include, for example, expressions justifying or arguing for genocide, mass repressions, deportations or other unlawful acts in respect of people of a certain nation, race, followers of a certain religion or other groups of people. Criticism in respect of political organisations, ideological and religious organisations or criticism in respect of political, ideological or religious beliefs, ethnic or religious customs should not, per se, be classified as acts aimed at inciting hatred or enmity.

C.    Other offences

41.  Until 2011 Article 129 of the Criminal Code provided that defamation - the dissemination of manifestly false information damaging one’s honour and dignity or reputation - involving an accusation of a serious or particularly serious offence was punishable by a fine or up to three years’ “restriction of liberty” or imprisonment.

42.  Article 294 provides that interference with the functioning of the courts with the aim of obstructing justice is punishable by a fine, compulsory labour or up to two years’ imprisonment.

43.  Until 2011 Article 298 provided that defamation of judges, jurors, prosecutors or investigators was punishable by up to four years’ imprisonment.

44.  Article 319 provided that public insult of a public official in the exercise of his or her public duties or in connection with those duties was punishable by a fine, community service or compulsory labour.

III.   Other relevant material

45.  The European Commission for Democracy through Law (the Venice Commission) adopted Opinion no. 660/2011 (CDL-AD (2012)016) “On the Federal Law on Combatting Extremist Activity of the Russian Federation”.

46.  On 9 March 2009 the OSCE Office for Democratic Institutions and Human Rights published “Hate Crime Laws: A Practical Guide”, in which it made the following observations on the possible scope of victim attributes in hate crime law:

“If a law includes characteristics that are not immutable or in some manner essential to a person’s sense of self and shared by persons who as a group have experienced discrimination, exclusion or oppression, it can be discredited as a hate crime law. Further, it can fail to protect those groups which are in fact victimized. People protected under the term “social group” might include members of the police or politicians, neither of whom is typically perceived as an oppressed group or as sharing fundamental bonds of identity. Indeed, if a law includes protected characteristics that are too far away from the core concept of hate crime it may no longer be seen as a hate crime law.

Further, the legal concept of certainty requires that a person be able to reasonably foresee the criminal consequences of his or her actions. The concept of legal certainty is reflected in both domestic laws in the OSCE region and regional and international human rights instruments. A law that imposes increased penalties but is unclear about the circumstances in which those penalties will be applied is likely to fail this fundamental test.”

 

THE LAW

I. Mrs ANDRUSHCHENKO’s STANDING

47.  The Court notes that following the applicant’s death in 2017, his wife expressed wish to pursue the proceedings lodged before the Court by her late husband in 2008, raising complaints under Articles 3, 5, 10 and 13 of the Convention.

48.  The Government contended that the complaints mentioned above were of inherently personal nature and concerned non-transferable rights, and thus invited the Court to strike the application out of its list of cases.

49.  For its part, the Court reiterates that in determining this matter the decisive point is not whether the rights in question are transferable to the heirs wishing to pursue the procedure, but whether the heirs or the next of kin can in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application with the Court (see Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014; Barakhoyev v. Russia, no. 8516/08, §§ 22-23, 17 January 2017; and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 87 and 117, 12 December 2017). Also, human rights cases before the Court generally have a moral dimension and persons near to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death (ibid.). The Court is satisfied that the condition of close kinship has been met and that Mrs Andrushchenko has a legitimate interest in ensuring that the application is pursued on behalf of the applicant. The Court has no reason to doubt that the late applicant and his wife were in a sufficiently close relationship. Accordingly, the Court finds that Mrs Andrushchenko has standing to continue the proceedings in the applicant’s stead (see Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999‑VI, and Vaščenkovs v. Latvia, no. 30795/12, §§ 27-30, 15 December 2016). For practical reasons, Mr Andrushchenko will continue to be called “the applicant” in this judgment.

II. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION

50.  The applicant complained of a violation of Article 3 of the Convention as a result of the conditions of his detention in the temporary detention centre and the remand centre. He also argued that he had not had any effective remedies for that complaint at the domestic level.

51.  Article 3 of the Convention reads as follows:

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

52.  Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.    The parties’ submissions

1.    The Government

53.  The Government submitted that there had been no overcrowding issue in the temporary detention centre and that the material conditions of detention had otherwise complied with the applicable regulations, in that the centre had a central heating system, as confirmed by an inspection report dated 25 September 2007.

54.  As to the remand centre, with reference to various certificates, the Government affirmed that the applicant had been detained in acceptable conditions.

55.  The Government has made no submissions as to the effectiveness of domestic remedies in respect of the conditions of detention in pre-trial detention facilities.

2.    The applicant

56.  The applicant (by Mrs Andruschenko) maintained the complaints.

B.     The Court’s assessment

1.    Admissibility

57.  The parties disagreed as to the material conditions of detention in the remand centre. Having examined the available material, the Court considers that it has not been established that the conditions of detention were in breach of Article 3 of the Convention. Accordingly, the related complaints under Articles 3 and 13 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

58.  As to the conditions of detention in the temporary detention centre, the Court notes that the related complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2.    Merits

59.  The Court notes that the applicant’s complaint about the material conditions of his detention in the temporary detention centre concerned one specific aspect, namely that he had been kept in a very cold cell on account of the central heating system being deficient at the time. Apart from a general statement about the compliance of the conditions of detention with the applicable regulations, the Government have not refuted the applicant’s allegation, the credibility of which the Court has no reason to doubt. In particular, they have not provided a copy of the contemporaneous inspection report to which they have referred before the Court. In the Court’s view, the situation was sufficiently serious to amount to a violation of Article 3 of the Convention, in particular taking into account the applicant’s age and the state of his health.

60.  There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention from 24 to 26 November 2007.

61.  The Government have not contested the lack of effective remedies for the above complaint. Having regard to its case-law (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 119, 10 January 2012), the Court finds that there has been a violation of Article 13 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

62.  The applicant complained of a violation of Article 5 § 3 of the Convention because the courts had not adduced sufficient reasons for him being arrested and held in pre-trial detention for nearly six months.

63.  Article 5 § 3 of the Convention reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

64.  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.

65.  As to the merits, the applicable principles were summarised by the Court in the case of Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016). In particular, the Court reiterates that the requirement on the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest (ibid., § 102).

66.  The Court notes that the applicant’s arrest and pre-trial detention arose from charges relating to his publication of articles in a newspaper in 2006 and 2007 and concerned non-violent offences.

67.  The Court finds at the outset that the applicant’s behaviour was not of a kind usually considered so serious as to justify pre-trial detention by itself (compare Kovyazin and Others v. Russia, nos. 13008/13 and 2 others, § 84, 17 September 2015).

68.  The domestic courts did not properly substantiate the alleged risk that the applicant would tamper with evidence, particularly by way of influencing certain jurors (potential witnesses in the proceedings against him). Indeed, one of the factual elements held against the applicant was in respect of what the investigator had classified in November 2007 as a threat (made via the applicant’s articles published in 2006 and June 2007) to the jurors in a criminal trial that had already been completed. Even accepting that the text of the impugned articles might have reasonably been perceived as attaining the level of a sufficiently specific risk of violence against individual members of the jury, the material evidence of the impugned offence had already been established in the text of the articles. There is no indication that the applicant actually attempted any assault against those jurors between 2006 and November 2007. In the absence of any reasonable suspicion, he was never charged with any related offence. In any event, as noted by the remand judge, the investigation did not find it opportune to interview any of the jurors between November 2007 and late January 2008.

69.  As regards the risk of reoffending (or “continuing the criminal activity” as it was phrased by the domestic courts), the Court notes that the domestic assessment was limited to stating the applicant’s role in the publishing house and his previous publications in the newspaper. No sufficient reasoning was adduced to demonstrate that there was a persisting risk of the applicant obstructing the criminal proceedings (which had in fact already ended by that time) or defaming any of the public officials or jurors who had been involved in it.

70.  No proper substantiation was adduced for the other alleged risks such as the risk that the applicant might flee the investigation.

71.  Overall, in view of the reasoning of the court orders authorising and extending the applicant’s detention in relation to the publications of articles, the Court is not satisfied that the Russian courts adduced sufficient reasons for the entire period of the deprivation of the applicant’s liberty. There has therefore been a violation of Article 5 § 3 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

72.  The applicant complained that his prosecution for his article “Bloody Saturday of 3 March 2007” amounted to a violation of Article 10 of the Convention, which in the relevant parts reads as follows:

“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, 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.”

A.    The parties’ submissions

73.  The Government made submissions in relation to various articles published by the applicant and for which he had been prosecuted. As to his article “Bloody Saturday of 3 March 2007”, the Government stated that its content could have provoked violence and could have impacted negatively on public order.

74.  The applicant maintained the complaint.

 

B.     The Court’s assessment

1.    Scope of the complaint and its admissibility

75.  The Court notes at the outset that the present complaint concerns the applicant’s prosecution in relation to his article “Bloody Saturday of 3 March 2007” initiated under Article 280 of the Criminal Code and which resulted in a conviction under Article 282 of the Criminal Code. His other complaints relating to his prosecution for the other articles were declared inadmissible (see paragraph 3 above).

76.  The applicant’s pre-trial detention in April and May 2008 was authorised, in part in relation to the impugned article (see paragraphs 20 and 24 above) and thus formed part of the “restriction” put on the applicant within the criminal proceedings and accordingly fell within the scope of Article 10 of the Convention.

77.  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.

2.    Merits

(a)    “Prescribed by law” and legitimate aim

78.  Like in Savva Terentyev v. Russia (no. 10692/09, §§ 53-59, 28 August 2018) and for the reasons stated there, the Court will proceed in the present case on the assumptions that (i) the interference with the applicant’s right to freedom of expression was “prescribed by law”, within the meaning of Article 10 § 2 of the Convention (see also Dmitriyevskiy v. Russia, no. 42168/06, §§ 81-83, 3 October 2017), and that (ii) the interference in question was designed to protect “the reputation or rights of others”, namely the Russian police personnel and the personnel of the FSB, and had thus a legitimate aim under Article 10 § 2 of the Convention.

(b)    “Necessary in a democratic society”

79.  Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, as a recent authority, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 124, 27 June 2017).

80.  The Court will now turn to the issue of whether the interference with the applicant’s right to freedom of expression was “necessary in a democratic society”.

(i) The relevant context of the case

81.  The Court notes at the outset that while it is unclear whether the applicant was a “journalist” within the meaning of Russian law, it suffices to note that he was a member of the editorial board of New Petersburg, wrote the impugned article published in that newspaper and was otherwise a regular author of articles published therein. Thus, it is appropriate to examine this case in the light of the principles applicable to the protection afforded to the press (see Riolo v. Italy, no. 42211/07, § 63, 17 July 2008; Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 27, 14 April 2009; and Butkevich v. Russia, no. 5865/07, §§ 131-32, 13 February 2018). Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its task is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest. The vital role of the media in facilitating and fostering the public’s right to receive and impart information and ideas has been repeatedly recognised by the Court. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role as “public watchdog” (see Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, §§ 125-26).

82.  At the same time, since the applicant was prosecuted with reference to the Suppression of Extremism Act and Article 282 of the Russian Criminal Code, it is also appropriate to examine the present case with reference to the applicable principles concerning what may be classified as hate speech, as summarised by the Court in Perinçek v. Switzerland ([GC], no. 27510/08, §§ 200-20, ECHR 2015 (extracts)) and Savva Terentyev (cited above, §§ 61-66).

83.  As regards the Russian anti-extremist legislation, in Savva Terentyev (cited above, § 85) the Court stressed that criminal law provisions directed against expressions that stir up, promote or justify violence, hatred or intolerance must clearly and precisely define the scope of the relevant offences, and that those provisions must be strictly construed in order to avoid a situation where the State’s discretion to prosecute for such offences becomes too broad and potentially subject to abuse through selective enforcement.

84.  In the present case, the applicant was prosecuted in criminal proceedings for statements which, as the domestic courts found, incited hatred and enmity against police officers as a “social group”. The Court notes in this connection the factual and legal similarities between the present case and the case of Savva Terentyev. In particular, as regards the notion of a “social group”, the Court stated in Savva Terentyev (cited above, § 76) that the police, a law-enforcement public agency, can hardly be described as an unprotected minority or group that has a history of oppression or inequality, or that faces deep-rooted prejudices, hostility and discrimination, or that is vulnerable for some other reason, and thus may, in principle, need a heightened protection from attacks committed by insult, holding up to ridicule or slander. Being a part of the security forces of the State, the police should display a particularly high degree of tolerance to offensive speech, unless such inflammatory speech is likely to provoke imminent unlawful actions in respect of their personnel and to expose them to a real risk of physical violence. It has only been in a very sensitive context of tension, armed conflict and the fight against terrorism or deadly prison riots that the Court has found that the relevant statements were likely to encourage violence capable of putting members of security forces at risk and thus accepted that an interference with such statements was justified (ibid.).

85.  In the Court’s view, similar considerations are valid in relation to officers of the SF or the FSB in the present case.

86.  It is in the light of the above considerations that the Court will now proceed to examine the manner in which the legislation mentioned above was applied in respect of the applicant.

(ii) Assessment of a specific situation

87.  The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 of the Convention the decisions they delivered in accordance with their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts (see, among others, Perinçek, cited above, § 196).

88.  When assessing a specific instance of “interference” with freedom of expression in this type of case, various factors should be taken into account, including the context in which the impugned statements were made, their nature and wording, their potential to lead to harmful consequences and the reasons adduced by the national courts to justify the interference in question. It is the interplay between the various factors rather than any of them taken in isolation that determines the outcome of a particular case (see Mariya Alekhina and Others v. Russia, no. 38004/12, §§ 217-21, 17 July 2018, and Ibragim Ibragimov and Others v. Russia, nos. 1413/08 and 28621/11, § 99, 28 August 2018).

89.  As a starting point the Court notes that the text (and specifically the parts expressly held against the applicant) in question is framed in strong words. The Court reiterates in that connection that subject to paragraph 2 of Article 10, freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see Bédat v. Switzerland [GC], no. 56925/08, § 48, 29 March 2016). Offensive language may fall outside the protection of freedom of expression if it amounts to wanton denigration, but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes. Style constitutes part of the communication as the form of expression and is as such protected together with the substance of the ideas and information expressed (see Gül and Others v. Turkey, no. 4870/02, § 41, 8 June 2010, and Grebneva and Alisimchik v. Russia, no. 8918/05, § 52, 22 November 2016, and the authorities cited therein).

90.  The Court notes that the applicant was convicted of, as adjudged by the domestic courts, inciting hatred and enmity and “debasing the dignity of a group of people” rather than an offence of being merely insulting (compare and contrast Janowski v. Poland [GC], no. 25716/94, § 32, ECHR 1999‑I) or defamatory (compare and contrast Bartnik v. Poland (dec.), no. 53628/10, § 28, 11 March 2014) in respect of identified or identifiable people within the category of law enforcement officers (such as police officers or officers of the FSB).

91.  Furthermore, the Court stresses that not every remark which may be perceived as offensive or insulting by particular individuals or their groups justifies a criminal conviction in the form of imprisonment. Whilst such sentiments are understandable, they alone cannot set the limits of freedom of expression. It is only by a careful examination of the context in which the offending, insulting or aggressive words appear that one can draw a meaningful distinction between shocking and offensive language which is protected by Article 10 of the Convention and that which forfeits its right to tolerance in a democratic society (see, for a similar approach, Vajnai v. Hungary, no. 33629/06, §§ 53 and 57, ECHR 2008). The key issue in the present case is thus whether the applicant’s statements, when read as a whole and in their context, could be seen as promoting violence, hatred or intolerance (see Perinçek, cited above, § 240).

92.  In the light of the approach stated above, it is noteworthy that the applicant published his article in the aftermath of a protest rally in St Petersburg which was part of what appeared to be a large civic movement called the March of Dissenters. The article touched upon an important matter of general and public interest, namely the use of force during protest rallies. It may be understood from the text of the article that the applicant personally observed the events that he described in the article. At least as presented, the article aimed to impart to the public the author’s first-hand experience, thereby enforcing the right for the public to receive information and ideas.

93.  In this connection the Court reiterates its abundant case-law relating to the freedom of peaceful assembly in Russia, including matters relating to dispersing protest rallies (see, among many others, Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 123-53, 15 November 2018; Annenkov and Others v. Russia, no. 31475/10, §§ 84-101 and 132-40, 25 July 2017; Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 459-63, 7 February 2017; Yaroslav Belousov v. Russia, nos. 2653/13 and 60980/14, §§ 173-83, 4 October 2016; Frumkin v. Russia, no. 74568/12, §§ 100-42, 5 January 2016; and Kasparov and Others v. Russia, no. 21613/07, §§ 85‑97, 3 October 2013).

94.  The Court also reiterates that use of the term “Nazi” or its derivatives such as a “neo-fascist”, for instance, cannot automatically justify a conviction for defamation on the ground of the special stigma attached to it (see Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 43, ECHR 2003‑XI, and Karman v. Russia, no. 29372/02, §§ 39-40, 14 December 2006). For instance, the Court previously noted in respect of a similar term, “fascist past”, that it was a wide one, capable of evoking in those who read it different notions as to its content and significance (see Feldek v. Slovakia, no. 29032/95, § 86, ECHR 2001‑VIII). The domestic courts in the present case did not delve into that matter.

95.  The Court further notes that the passages held against the applicant (see paragraph 26 above) contained no calls to violence against law enforcement officers. It is furthermore of relevance that the applicant’s remarks did not personally attack any identifiable police officers. The Court reiterates that civil servants acting in an official capacity are subject to wider limits of acceptable criticism than ordinary citizens (see Mamère v. France, no. 12697/03, § 27, ECHR 2006‑XIII), even more so when such criticism concerns a whole public institution. A certain degree of immoderation may fall within those limits, particularly where it involves a reaction to what is perceived as unjustified or unlawful conduct of civil servants.

96.  In the Court’s view, the applicant’s article shows his emotional disapproval and rejection of what he saw as an abuse of authority by law enforcement officers and conveys his sceptical and sarcastic point of view on the moral and ethical standards of the personnel of the Russian police. Seen in this perspective, the statements in question can be understood as a scathing criticism of the current state of affairs in the Russian police (see, in this connection, paragraph 25 above for the findings made in the specialist report adduced by the defence in the domestic proceedings). The phrases used by the applicant amounted to provocative metaphors, which affirmed his emotional appeal for measures to be taken with a view to improving the situation as regards the free exercise of the right of freedom of peaceful assembly and as regards the use of physical force against demonstrators.

97.  Having said this, the Court stresses that its considerations in the previous paragraphs should not be taken as an approval of the language used by the applicant or the tone of his text.

98.  Furthermore, there is no indication or assessment either in the decisions of the domestic courts or in the Government’s submissions that the applicant’s newspaper article was published against a sensitive social or political background, or that the general security situation in St Petersburg or the Leningrad region (where the newspaper was distributed) was tense, that there had been any clashes, disturbances, or anti-police riots, or that there existed an atmosphere of hostility and hatred towards the police, or any other particular circumstances in which the impugned statements were liable to produce imminent unlawful actions in respect of police officers, such as to expose them to a real threat of physical violence.

99.  The trial court held that the law enforcement officers were a “social group” by virtue of their “interacting with each other in a specific manner”, perceiving their own membership of the group and being perceived as such by others, and because they fulfilled a function which was necessary for the society (see paragraph 26 above). At the same time, the domestic courts failed to explain why that group, in their view, needed enhanced protection; nor did they refer to any factors or context which would show that the applicant’s article could have actually encouraged such a form of “enmity” as physical violence and thus put that group, or any of its members, at risk. In the absence of any such explanation in the domestic courts’ decision or any other evidence which would enable it to conclude otherwise, the Court is not convinced that the applicant’s article was likely to encourage violence capable of putting Russian law enforcement officers at risk. It is noted in this connection that, while the article was disseminated in March 2007, it was only in March 2008 that the authorities considered that it might have had or might have harmful consequences (see paragraph 20 above; compare Erbakan v. Turkey, no. 59405/00, § 68, 6 July 2006).

100.  The domestic courts focused on the nature of the wording used by the applicant, limiting their findings to the form and tenor of the speech. They did not try to analyse the impugned statements in the context of the relevant discussion or to find out what ideas they sought to impart. It was also essential for the assessment of a potential influence of a publication to determine the scope of its actual reach to the public. The applicant’s article was published in a newspaper with a distribution figure of 50,000 within the city of St Petersburg and the Leningrad region. While mentioning this fact when describing the offence, and also that the newspaper was freely available for sale, the domestic courts did not draw any further conclusions from that fact as regards the applicant’s guilt, in particular as regards the alleged stirring of enmity or hatred toward law enforcement officers.

101.  The Court has noted above that it is the interplay between the various factors, rather than any of them taken in isolation, that leads it to the conclusion that a particular statement constitutes an expression which cannot claim the protection of Article 10 or which may be punished by way of criminal proceedings, for instance, under legislation pertaining to “hate speech”. In the present case, although the wording of the impugned statements was such as to “offend, shock or disturb”, it cannot be seen as stirring up base emotions or embedded prejudices in relation to members of a vulnerable social group, as the group in question were - according to the national courts - Russian law enforcement officers. The Court furthermore discerns no other elements, either in the domestic courts’ decisions or in the Government’s submissions, which would enable it to conclude that the applicant’s article posed a clear and imminent danger which required the applicant’s criminal conviction (compare Gül and Others, cited above, § 42).

102.  Lastly, the Court observes that the applicant was given a suspended sentence of imprisonment that was then deemed served in view of the expiry of the relevant time-limit for enforcing it. A criminal conviction is a serious “penalty”, having regard to the existence of other means of intervention and rebuttal (see Perinçek, cited above, § 273). Moreover, although sentencing is in principle a matter for the national courts, the imposition of a prison sentence for an offence in the area of a debate on an issue of legitimate public interest will be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see Otegi Mondragon v. Spain, no. 2034/07, §§ 59-60, ECHR 2011, and compare with Sinkova v. Ukraine, no. 39496/11, § 111, 27 February 2018). The Court has already found that the applicant’s article was not shown to be likely to encourage violence or to constitute “hate speech”.

103.  The Court accordingly finds that, in reaching their conclusions under legislation aimed at fighting hate speech against a protected “social group”, and in sentencing the applicant to a suspended prison term for his newspaper article, the domestic courts failed to take account of all the facts and all relevant factors. Therefore the reasons adduced by those courts cannot be regarded as sufficient to justify the interference with the applicant’s freedom of expression.

104.  There has accordingly been a violation of Article 10 § 2 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 10

105.  The applicant argued that he had no effective remedies at his disposal for the unjustified interferences with his right to freedom of expression.

106.  Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

107.  The Court notes that the present complaint is closely linked to the complaint under Article 10 of the Convention and is likewise admissible. However, having regard to the nature and scope of its findings under Article 10 of the Convention and in the absence of any specific submissions from the applicant, the Court decides to dispense with the examination of the merits of the issue under Article 13 of the Convention.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

108.  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

109.  Mrs Andrushchenko claimed 35,800 euros (EUR) in respect of non‑pecuniary damage on account of her late husband having been detained in pre-trial detention without sufficient reasons. She also claimed EUR 10,000 on account of the conditions of his pre-trial detention and the expenses incurred (by either him or her) during that period for buying food and medication. Lastly, she claimed EUR 15,000 with reference to complaints raised under Articles 6, 13 and 18 of the Convention.

110.  The Government submitted that the complaints under Articles 3, 5, 10 and 13 of the Convention concerned rights and freedoms which are inherently personal and non-transferable. Thus, they argued that it would not be appropriate to make any award to the applicant’s wife.

 

B.     Costs and expenses

112.  Mrs Andrushchenko claimed EUR 5,000 for the “lawyer’s work”.

113.  The Government made no comment.

114.  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 (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 370-71, 28 November 2017). It is noted that the applicant was represented by different lawyers at the domestic level and before the Court. Noting the absence of any related documents or sufficient details about this claim, and regard being had to its case-law, the Court rejects the claim for costs and expenses.

C.    Default interest

115.  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 complaints under Article 3 (conditions of detention from 24 to 26 November 2007), Article 5 § 3, Article 10 § 2 and Article 13 (in conjunction with Articles 3 and 10) of the Convention admissible and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 3 of the Convention on account of the conditions of detention from 24 to 26 November 2007;

3.      Holds that there has been a violation of Article 5 § 3 of the Convention;

4.      Holds that there has been a violation of Article 10 § 2 of the Convention;

5.      Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3;

6.      Holds that there is no need to examine the merits of the complaint under Article 13 of the Convention in conjunction with Article 10;

7.      Holds

(a)   that the respondent State is to pay Mrs Lyudmila Nikolayevna Andrushchenko, within three months EUR 1,300 (one thousand three hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

8.      Dismisses the remainder of the claim for just satisfaction.

Done in English, and notified in writing on 24 March 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                 Alena Poláčková
Deputy Registrar                                                                       President