European Court of Human Rights

 

THIRD SECTION

CASE OF SOKIRYANSKAYA AND OTHERS v. RUSSIA

(Application no. 4505/08)

 

 

 

 

 

 

JUDGMENT

 

STRASBOURG

23 June 2020

 

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

In the case of Sokiryanskaya and Others v. Russia,

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

          Helen Keller, President,
          María Elósegui,
          Ana Maria Guerra Martins, judges,
and Olga Chernishova, Deputy Section Registrar,

Having deliberated in private on 2 June 2020,

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

PROCEDURE

1.  The case originated in an application (no. 4505/08) 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 six Russian nationals (see the appended table).

2.  The applicants were represented by lawyers of the EHRAC/Memorial Human Rights Centre, NGOs with offices in Moscow and London. 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 12 March 2014 the Government were given notice of the application.

4.  The Government did not object to the examination of the application by the Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5.  The applicants’ personal details appear in the appended table.

A.    Background information

6.  On 12 October 2006 Mr M., a leader of a human rights association “Mashr” based in Nazran, the Republic of Ingushetia, submitted a notification of the planned stationary demonstration (picket) to the authorities in accordance with the Law on Assemblies, Gatherings, Demonstrations and Pickets of 19 June 2004 (“the Public Assemblies Act”). The picket was to be held on 16 October 2006 from 4 p.m. to 6 p.m. near the monument to the heroes of the Second World War on Bazorkina Avenue. The purpose of the picket was to commemorate the journalist Anna Politkovskaya, who was murdered on 7 October 2006.

7.  From 12 October 2006 Mashr began to circulate information on the planned picket to prospective participants, including the applicants.

8.  On 15 October 2006 the director of Mashr received a handwritten letter from the Head of Nazran City Administration banning the planned picket on the grounds that Mashr, being a non-commercial organisation, had no right to organise it.

9.  Considering the decision of the city administration to be in breach of the law, Mr M. went ahead with the organisation of the picket. He intended to challenge the decision later.

B.     Events of 16 October 2006

1.    Dispersal of the picket, arrest and detention of the third, fourth, fifth and sixth applicants

10.  On 16 October 2006, before 4 p.m., the applicants arrived at the site of the picket. Some policemen and men in civilian clothes were present there. Mr M. and others had also gathered with the view to participating in the picket. The police and the men in civilian clothes allegedly insulted the picketers, including the applicants, and ordered them to disperse. When the applicants realised that it would be impossible for them to go ahead, they decided to leave.

11.  The third, fourth and fifth applicants were apprehended on their way to the car, the sixth applicant was arrested at the site of the planned picket. At approximately 4 p.m. they were transferred to the Nazran police department. According to the applicants, they were driven to the police department in the cars that had no police markings, they were not promptly informed about the reasons for their arrest, and their lawyer was not allowed to see them when he arrived to the police department.

12.  As submitted by the applicants, at midnight they were brought before the Justice of the Peace of the 8^th Court Circuit of Nazran (“the Justice of the Peace”) who read out to them the records of their arrest drawn by the police officers. The reports stated that the applicants had taken part in the picket and had refused to obey the police order to leave the place of assembly, which constituted an administrative offence under Article 20.2 of the Code of Administrative Offences. The applicants contested the reports. The judge postponed the hearing to 17 October 2006.

13.  They were released at 12.30 to 1.30 a.m. on 17 October 2006. The hearing was subsequently postponed to 31 October 2006.

14.  On 31 October 2006 the Justice of the Peace discontinued the administrative proceedings against the four applicants concerned on the ground that no offence had taken place.

2.    Attacks on the first and the second applicant

15.  As submitted by the applicants, when leaving the site of the planned picket, the second applicant was attacked from behind by two men. During the fight that followed a man in civilian clothes, Mr T., hit the first applicant in her face. She started bleeding from the nose and the second applicant took her to the hospital.

16.  The first applicant was diagnosed with an open nasal bone fracture, concussion and a closed craniocerebral trauma.

C.    Investigation into the events of 16 October 2006

17.  On 18 October 2006 the applicants complained to the Nazran Prosecutor’s Office about the above-mentioned events.

18.  On 7 November 2006 the Nazran Prosecutor’s Office refused to institute a criminal investigation concerning the attack on the first applicant on the grounds that the injuries had been sustained two weeks prior to 16 October 2006.

19.  On 23 November 2006 the Nazran Prosecutor’s Office reversed the decision of 7 November 2006 stating, in particular, that it did not contain an assessment of the behaviour of the police during the events. The investigator had not addressed the applicants’ allegations that the police officers were rude, unlawfully arrested and detained them for more than three hours.

20.  On 27 December 2006 the Nazran Prosecutor’s Office refused to institute a criminal investigation into the actions of the police officers for a lack of corpus delicti. However, it stated that the first applicant’s injuries had been allegedly inflicted on 16 October 2006 by Mr T. and ordered the file in this part to be sent for a further review.

21.  On 2 February 2007 an investigation officer instituted criminal proceedings in respect of Mr T. as regards the attack on the first applicant.

22.  On 26 February 2007 the applicants challenged the decision of 27 December 2006 before the Nazran Town Court. They complained about the ban of the peaceful assembly and its dispersal, about their arrest and detention for more than three hours. They further submitted that the attacks on the first and the second applicant had taken place in the presence of some high-ranking police officers who tolerated the assaults.

23.  On 24 April 2007 the Nazran Town Court dismissed the complaint on the ground that the first applicant had not been beaten by the police officers, but by a man in civilian clothes.

24.  On 5 June 2007 the Supreme Court of Ingushetia dismissed applicants’ appeal. Neither the applicants nor their counsel was present at the hearing.

25.  On 3 July 2007 the legal counsel received a copy of the decision of the Supreme Court of Ingushetia.

26.  On 10 June 2007 the Justice of the Peace of the 9^th Court Circuit of the Nasyr-Kortskiy District of Nazran found Mr T. guilty of the blows inflicted on the first applicant and ordered him to pay a fine of 30,000 Russian roubles (RUB). The judge examined a video recording which confirmed that Mr T. had punched the first applicant in the face. The description of the recording provided in the sentence further read that Mr T. had been prevented from hitting the first applicant for the second time by the policemen and the persons dressed in plain clothes present at the site.

27.  The first applicant did not appeal against the sentence. Neither did she lodge any civil claims.

II. RELEVANT DOMESTIC LAW

28.  For a summary of the domestic provisions on the procedure for the notification of public events, on the liability for breaches committed in the course of public events, on the administrative transfer (escorting) and detention see Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 216-312, 7 February 2017)

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

29.  The applicants complained that the authorities had unlawfully prohibited the picket and prevented them from participating in it. They relied on Article 11 of the Convention. The applicants also invoked Article 10, however, regard had to the essence of this complaint, it falls to be examined under Article 11, which reads as follows:

“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

30.  The Government contested that argument. They submitted that Mr M. had organised and the applicants had taken part in an unauthorised picket, and, therefore, breached the national law. The applicants maintained that the ban and dispersal of the picket, as well as their arrest and detention, violated their freedom of peaceful assembly.

31.  The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and proportionality of interference with it (see Oya Ataman v. Turkey, no. 74552/01, ECHR 2006‑XIV, and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009).

 

33.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that the dispersal of the public assembly on 16 October 2006 and the arrest of the third, fourth, fifth and sixth applicants were not “necessary in a democratic society”.

34.  These complaints are therefore admissible and disclose a breach of Article 11 of the Convention.

35.  There has accordingly been a violation of Article 11 of the Convention in respect of all applicants.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

36.  The first applicant complained under Article 3 of the Convention that she had been subjected to ill-treatment in the presence of the high‑ranking officials and that the authorities had failed to conduct an effective investigation into the events. Article 3 of the Convention reads as follows:

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

37.  The Government contested that argument. They submitted that the criminal investigation had been effective and led to the conviction of the person responsible for inflicting the injuries. They argued that the applicant had lost the victim status as she had not challenged the sentence of 10 June 2007 and had not lodged any civil claim. They further claimed that the alleged ill-treatment did not reach the minimum level of severity necessary to trigger the protection of Article 3.

38.  The applicant argued that the police officers present at the site had failed to take any steps to prevent the attack, to immediately arrest the perpetrator and to conduct an effective investigation.

39.  The Court recalls that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998‑VI).

40.  Where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above‑mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Likewise, where the alleged violation concerns Article 3 of the Convention the Court has held that the State is under an obligation to take “reasonable steps” to prevent ill-treatment of which the authorities had or ought to have had knowledge (see Z. and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001‑V, and P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, § 37, 23 November 2010).

41.  Turning to the present case, it is not in dispute that the applicant was punched in her face by Mr T. in the presence of police officers. Without prejudice to the severity of the inflicted injuries, the Court notes that it was an instantaneous act rather than repeated beatings. It does not follow from the available documents that Mr T. had threatened the first applicant before insulting her or that the first applicant had requested the police for help in order to prevent the attack. The Court further notes that, after that first punch, the policemen interfered and averted Mr T.’s aggressive behaviour in respect of the first applicant (see paragraph 26 above). Thus, it cannot be said that in this case the State authorities failed to provide adequate protection to the first applicant during the public event (compare with, mutatis mutandis, Identoba and Others v. Georgia, no. 73235/12, §§ 72-74, 12 May 2015).

42.  Neither does the Court consider that the investigation was ineffective in the present case. The authorities carried out the inquiry in respect of the police officers, but did not find any signs of a criminal offence in their actions. The criminal investigation in respect of Mr T. was opened and resulted in his conviction on 10 June 2007, which the applicant did not challenge.

43.  In the view of the foregoing, the Court considers that the first applicant’s complaint under Article 3 is manifestly ill-founded. It should therefore be rejected under Article 35 §§ 3 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

44.  The third to sixth applicants complained that their arrest and detention on 16 October 2006 had not been carried out in compliance with the procedure prescribed by law, that it was unlawful and arbitrary, and that their detention exceeded three hours. They relied on Article 5 § 1 of the Convention, which reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

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

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

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

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

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

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

45.  The Government contested that argument. They submitted that the third to sixth applicants were arrested and transferred to the Nazran police department in accordance with the domestic law, as they were suspected of having committed an administrative offence on account of participating in the unauthorised picket. They further submitted that the documents in connection with the arrest and detention had been destroyed in 2009 as a result of a terrorist act. As regards the administrative proceedings in the applicants’ cases, the Government submitted that the relevant files had been destroyed due to expiration of the period for their storage. The Government considered that since the administrative proceedings in respect of the applicants had been discontinued, the concerned applicants did not suffer a significant disadvantage.

46.  The applicants maintained that their arrest and detention had been unlawful and arbitrary.

47.  In so far as the Government may be understood as arguing that the applicants had not suffered a significant disadvantage as they had not been convicted of an administrative offence, the Court notes that the applicants complain under Article 5 about their arrest and detention, and considers that genuine respect for human rights requires it to continue examination of the complaint and dismisses the Government’s objection. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

48.  The Court observes that on 16 October 2006, at approximately 4 p.m., the third to sixth applicants were apprehended and transferred to the Nazran police department. The applicants submitted that they were released after more than eight hours. The Government stated that the time of the applicants’ release could not be established as all the relevant case files had been destroyed.

49.  The Court further observes that the decisions of 31 October 2006 (see paragraph 14 above) read that the applicants had been held liable under Article 20.2 of the Code of Administrative Offences on account of their participation in the unauthorised picket. However, the judge found that neither the administrative records nor the statements provided by the police officers contained any proof that the applicants had actually taken part in the public event and discontinued the administrative proceedings.

50.  The Court has already examined cases raising similar issues (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 486-92, 7 February 2017, with references therein), and found a violation of Article 5 § 1 of the Convention. The Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

51.  In the foregoing is sufficient for the Court to conclude that in the present case there has been a violation of Article 5 § 1 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

52.  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

53.  The applicants asked the Court to award them the amounts it deemed appropriate in respect of non-pecuniary damage.

54.  The Government contested these claims.

55.  The Court has found a violation of Article 11 of the Convention in respect of all the applicants, and a violation of Article 5 § 1 of the Convention in respect of the third, fourth, fifth and sixth applicants. Making its assessment on equitable basis, it awards the applicants the amounts indicated in the appended table in respect of non-pecuniary damage, plus any tax that may be chargeable.

B.     Costs and expenses

56.  The applicants were represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. They claimed 1,050 euros (EUR) and 2,793.08 pounds sterling (approximately EUR 3,500) for the costs and expenses incurred before the Court. They submitted a breakdown of the costs and supporting documents, including fee notes, lawyers’ timesheets, translator’s invoices and a claim for administrative and postal costs. They requested that the payment be made in pounds sterling directly to the representative’s bank account in the United Kingdom.

57.  The Government contested these claims as excessive and unsubstantiated.

58.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads. The amount should be paid into the representative’s bank account, as indicated by the applicant.

C.    Default interest

59.  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 5 and 11 of the Convention admissible and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 11 of the Convention in respect of all six applicants;

3.      Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the third, fourth, fifth and sixth applicants;

4.      Holds

(a)   that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage;

(b)   that the respondent State is to pay EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid into the representative’s bank account in the United Kingdom;

(c)   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;

5.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 23 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Helen Keller
Deputy Registrar                                                                       President

 

Appendix

 

No.	Applicant’s name Year of birth Place of residence	Amount awarded for non‑pecuniary damage per applicant (in euros) [1]
1	Yekaterina Leonidovna SOKIRYANSKAYA 1975 St Petersburg	EUR 4,000 (four thousand euros)
2	Shamsuddin Abdul-Vagapovich TANGIYEV 1974 Grozny	EUR 4,000 (four thousand euros)
3	Zina Sultanovna MUKUSHEVA 1974 Grozny	EUR 5,000 (five thousand euros)
4	Zoya Aliyevna MURADOVA 1963 Grozny	EUR 5,000 (five thousand euros)
5	Fatima Savarbekovna YANDIYEVA 1979 Kantishevo	EUR 5,000 (five thousand euros)
6	Albert Sultanovich KHANTYGOV 1967 Grozny	EUR 5,000 (five thousand euros)