European Court of Human Rights

 

 

 

THIRD SECTION

 

CASE OF BORETS-PERVAK AND MALDON v. RUSSIA

(Applications nos. 42276/15 and 54278/15)

 

 

 

 

 

JUDGMENT

 

STRASBOURG

6 October 2020

 

 

 

 

 

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

 

In the case of Borets-Pervak and Maldon 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 regard to:

the applications (nos. 42276/15 and 54278/15) 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, the first applicant Mr Igor Yuryevich Borets‑Pervak and the second applicant Ms Yekaterina Anatolyevna Maldon (“the applicants”), on 5 August 2015 and 10 October 2015 respectively;

the decision to give notice of the applications to the Russian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 15 September 2020,

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

INTRODUCTION

1.  On 26 January 2015 the applicants participated in a spontaneous gathering on Lubyanskiy Proyezd in Moscow to demand the release of captured Ukrainian pilot Nadezhda Savchenko. They were arrested during the gathering and convicted of administrative offences.

THE FACTS

2.  The applicants, whose details are set out in the Appendix, were represented respectively by Ms D.S. Pigoleva and Mr N.S Zboroshenko, lawyers practising in Moscow.

3.  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.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On 27 October 2014 the Basmannyy District Court of Moscow extended the detention of Nadezhda Savchenko, a Ukrainian female pilot.

6.  On 26 January 2015 the President of the PACE stated that Russia should free Nadezhda Savchenko. In response to this statement, several public gatherings took place in support of the pilot in Washington, New York, Kyiv, Jerusalem, Tel Aviv, St Petersburg and Moscow.

7.  On the evening of 26 January 2015 eleven people gathered on Lubyanskiy Proyezd in Moscow for a stationary demonstration; the gathering had not been notified to the city authorities. At first the participants stood silently holding handwritten posters “No to war”, “Freedom for Nadezhda Savchenko!” A while later they started to chant “Freedom for Nadezhda Savchenko!” At different times the applicants were arrested and taken to police stations.

8.  Details as regards the administrative proceedings against each applicant are stated in the Appendix.

RELEVANT LEGAL FRAMEWORK

9.  Article 20.2 § 5 of the Code of Administrative Offences (CAO) provides that violation by a participant in a public event of the established procedure for conducting a public event is punishable with a fine of 10,000 to 20,000 roubles (RUB) or up to forty hours of community work.

10.  For a summary of other relevant domestic provisions see Navalnyy v. Russia [GC] (nos. 29580/12 and 4 others, §§ 46-47, 15 November 2018); Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 223 and 226, 7 February 2017); and Korneyeva v. Russia (no. 72051/17, §§ 22-26, 8 October 2019).

11.  The domestic legal provisions governing administrative transfer (escorting) and detention are also set out in the case of Butkevich v. Russia (see no. 5865/07, §§ 33-36, 13 February 2018).

THE LAW

I. JOINDER OF THE APPLICATIONS

12.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

13.  The applicants complained of disproportionate measures taken against them as participants of a peaceful public assembly, namely their arrest followed by their transfer to the police station and conviction for an administrative offence. They relied on Articles 10 and 11 of the Convention. However, this 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.”

14.  The Government submitted that the gathering in the present case had not been a spontaneous one because the activists could have held it later, after proper notification of their demonstration. They pointed out that the applicants in the present case had been convicted under Articles 19.3 § 1 (failure to comply with a lawful order of an official in connection with the exercise of his duties) and 20.2 § 5 (violation by a participant of the procedure for a public event) of the Code of Administrative Offences (“the CAO”) with reference to the failure to notify the authorities of the public gathering in accordance with the procedure prescribed by sections 5 and 7 of the Public Events Act.

15.  It follows that the applicants were arrested, transferred to the police station and charged with administrative offences for the sole reason that their gathering as such had not been authorised.

16.  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).

17.  In the leading cases (see, for example, Frumkin v. Russia, no. 74568/12, 5 January 2016; Navalnyy and Yashin v. Russia, no. 76204/11, 4 December 2014; and Kasparov and Others v. Russia, no. 21613/07, 3 October 2013), the Court already found a violation in respect of issues similar to those in the present case.

18.  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 in the instant case the measures applied to the applicants as peaceful participants in the public assembly did not correspond to a pressing social need and were thus not necessary in a democratic society.

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

III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE LAW

20.  The applicants submitted other complaints which also raised issues under Articles 5 and 6 of the Convention, given the relevant well‑established case-law of the Court. These complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

21.  Having examined all the material before it, the Court concludes that these remaining complaints also disclose violations of Articles 5 and 6 of the Convention, as indicated in the appended table, in the light of its findings in Vyerentsov v. Ukraine (no. 20372/11, §§ 81-83, 11 April 2013); Karelin v. Russia (no. 926/08, §§ 60-84, 20 September 2016); and Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 486‑92, 7 February 2017).

22.  As regards Article 5 § 1, the finding of a violation relates to the arbitrary character of the applicants’ arrests on 26 January 2015. Having reached this conclusion, in the circumstances of this case the Court does not consider it necessary to examine the first applicant’s allegation that his detention on that day exceeded the statutory limit of three hours (see the appended table).

23.  As regards Article 6 § 1, the complaints relying on this provision disclose a violation of the impartiality requirement on account of the absence of a prosecuting party (see the appended table). Having reached the conclusion that the administrative proceedings, taken as a whole, were conducted in violation of the right to a fair hearing, the Court considers that it is not necessary to address the remainder of the applicants’ complaints under Article 6 § 3 (c) and (d) of the Convention, set out in the appended table (see Frumkin, cited above, § 168).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  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

25.  The applicants each claimed 20,000 euros (EUR) for non‑pecuniary damage.

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

27.  Having regard to the parties’ submissions and to its case‑law concerning violations of Article 11 in relation to arbitrary arrests at peaceful assemblies, and taking into account the severity of the applicants’ respective sentences, the Court considers it reasonable to award the following amounts, plus any tax that may be chargeable, in respect of non-pecuniary damage: EUR 7,500 to the first applicant and EUR 5,000 to the second applicant.

B.     Costs and expenses

28.  The first applicant also claimed EUR 2,030 for costs and expenses incurred before the domestic courts and the Court and EUR 220 for the translation costs. The second applicant claimed EUR 9,810 for costs and expenses, including legal fees set out in the legal services agreement and the itemised schedule, and postal expenses.

29.  The Government contested these claims as excessive, unsubstantiated and having no legal basis.

30.  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. Regard being had to the documents in its possession to its case‑law and the repetitive nature of the legal issues examined in this case, the Court considers it reasonable to award the following amounts, plus any tax that may be chargeable to the applicants: EUR 1,700 to each applicant (representing EUR 850 in respect costs and expenses incurred in the domestic proceedings plus EUR 850 for representation before the Court). In accordance with the second applicant’s request, her award for costs and expenses is to be paid to the representative’s bank account.

C.    Default interest

31.  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 applications admissible;

3.      Holds that there has been a violation of Article 11 of the Convention in respect of both applicants;

4.      Holds that there has been a violation of Articles 5 and 6 of the Convention as regards the other complaints raised under the well‑established case-law of the Court (see the appended table);

5.      Holds that there is no need to examine the complaints under Article 5 § 1 of the Convention concerning deprivation of liberty in excess of three hours and the complaints under Article 6 § 3 (c) and (d) of the Convention (see the appended table);

6.      Holds

(a)   that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) to the first applicant EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(ii) to the second applicant EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(iii) to each applicant EUR 1,700 (one thousand seven hundred euros) plus any tax that may be chargeable to the applicants, for costs and expenses, payable in the second applicant’s case to her representative;

(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 6 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Helen Keller
Deputy Registrar                                                                       President

 

APPENDIX

No.	Application no. and date of introduction	Applicant name Date of birth Place of residence Nationality	Represented by	Charge and penalty (Russian roubles)	Final domestic decision details	Other complaints under well-established case-law (i) admissible and disclosing a violation (ii) not necessary to examine
	42276/15 05/08/2015	Igor Yuryevich BORETS-PERVAK 1959 Moscow Russian	Darya Sergeyevna PIGOLEVA	Article 19.3 § 1 of the CAO Administrative detention 11 days   Article 20.2 § 5 of the CAO Administrative fine RUB 10,000	Appeal decision 06/02/2015 Moscow City Court     Appeal decision 14/04/2015 Moscow City Court	(i) Art. 5 § 1 - unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of administrative offence (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§  486‑92, 7 February 2017); Art. 6 § 1 - lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v. Russia, no. 926/08, 20 September 2016).   (ii) Art. 5 § 1 - unlawful detention for more than three hours. Art. 6 § 3 (c) - the first-instance court dismissed the applicant’s motion to provide him with time to retain a lawyer (proceedings under Art. 19.3 of the CAO). Article 6 § 3 (d) - the first instance (proceedings under Art. 20.2) and appeal (proceedings under Art. 19.3) courts refused to call prosecution witnesses, namely the police officers who had arrested the applicant.
	54278/15* 10/10/2015	Yekaterina Anatolyevna MALDON 1972 Moscow Russian	Nikolay Sergeyevich ZBOROSHENKO	Article 20.2 § 5 of the CAO Administrative fine RUB 20,000	Appeal decision 20/04/2015 Moscow City Court	(i) Art. 5 § 1 - unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of administrative offence (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§  486‑92, 7 February 2017); Art. 6 § 1 - lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v. Russia, no. 926/08, 20 September 2016).   (ii) Art. 6 § 3 (d) - the appellate court refused to question prosecution witnesses, namely the police officers who had arrested the applicant.