European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF AKHUNOV AND NEMUCHINSKIY v. RUSSIA

(Applications nos. 5014/15 and 37483/15)

 

 

 

 

JUDGMENT

STRASBOURG

8 December 2020

 

 

 

 

 

 

 

 

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

 

In the case of Akhunov and Nemuchinskiy v. Russia,

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

          Helen Keller, President,
          Anja Seibert-Fohr,
          Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 5014/15 and 37483/15) 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 Ukrainian nationals, Mr Sergey Safuanovich Akhunov and Mr Roman Borisovich Nemuchinskiy (“the applicants”), on 30 December 2014 and 13 June 2016 respectively;

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

the parties’ observations;

the decision to reject the Government’s objection to examination of the application no. 5014/15 by a Committee;

Having deliberated in private on 17 November 2020,

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

INTRODUCTION

1.  On the dates indicated in the appended table the applicants participated in political demonstrations. They were arrested at the venue of the demonstrations and subsequently convicted of an administrative offence.

THE FACTS

2.  The applicants’ details are set out in the appended table.

3.  The Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, then by Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation at the European Court of Human Rights, and subsequently by Mr M. Galperin, Representative of the Russian Federation at the European Court of Human Rights.

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

5.  On the dates indicated in the appended table the applicants participated in political demonstrations. They were apprehended at the venue of the demonstrations and transferred to the police stations in Moscow where the relevant administrative records were drawn up. The administrative offence records were based on the reports and explanations of the police officers who had arrested the applicants. The first applicant (Mr Akhunov) was released several hours later, while the second applicant (Mr Nemuchinskiy) remained in detention until the court hearing the next day.

6.  On the dates stipulated in the appended table the applicants were convicted under the Code of Administrative Offences (the CAO). The first applicant (Mr Akhunov) was convicted under Article 20.2 § 5 of the CAO (violating the established procedure for the conduct of a public assembly) and ordered to pay a fine of 10,000 Russian roubles. The second applicant (Mr Nemuchinskiy) was convicted under Article 19.3 § 1 of the CAO (refusal to obey the lawful order of a police officer). He was sentenced to administrative imprisonment of fifteen days (see the appended table). The domestic courts relied on the administrative records and the reports and explanations of the police officers. In particular, the courts considered unlawful that the applicants had shouted slogans and had participated in a public assembly in respect of which no advance notification had been submitted to the authorities.

RELEVANT LEGAL FRAMEWORK

7.  For a summary of the relevant domestic law see Navalnyy v. Russia [GC] (nos. 29580/12 and 4 others, §§ 46-47, 15 November 2018).

8.  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).

9.  According to Article 31.9 of the Code of Administrative Offences, if a decision imposing an administrative punishment is not enforced within two years from its entry into force, it can no longer be executed. The time when enforcement of such a decision is suspended or stayed is excluded from the aforementioned period.

THE LAW

I. JOINDER OF THE APPLICATIONS

10.  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

11.  The applicants complained of disproportionate measures taken against them as participants of peaceful public assemblies, namely their arrest followed by their conviction for an administrative offence. They relied, expressly or in substance, on Article 11 of the Convention. The applicants also invoked Article 10 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.”

12.  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 that freedom (see Oya Ataman v. Turkey, no. 74552/01, ECHR 2006‑XIV, and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009).

13.  In the leading cases (see, for example, Navalnyy, cited above; 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.

14.  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 assemblies did not correspond to a pressing social need and were thus not necessary in a democratic society.

15.  These complaints are therefore admissible and disclose a violation of Article 11 of the Convention.

III. Other ALLEGED VIOLATIONs under well-established case-law

16.  The applicants submitted other complaints which also raised issues under Articles 5 and/or 6 of the Convention, given the relevant well‑established case-law of the Court.

A.     Admissibility

17.  As regards the complaints under Article 5 of the Convention, the Government argued that the second applicant had failed to exhaust domestic remedies. They submitted, in particular, that the second applicant could have used the procedures under Chapter 25 of the Code of Civil Procedure and Article 1070 of the Civil Code. In the absence of any domestic case-law examples provided by the Government demonstrating effectiveness of these remedies and noting its previous findings in similar cases (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 95-101, 10 April 2018), the Court dismisses the Government’s objection as unsubstantiated.

18.  The remaining complaints raising issues under the well-established case-law of the Court (see the appended table) are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.     Merits

19.  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 Navalnyy and Yashin, cited above, §§ 82-85 and §§ 91-98; 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).

20.  As regards Article 5 § 1, the finding of a violation in the first applicant’s case relates to the arbitrary character of his arrest. Having reached this conclusion, in the circumstances of the first applicant’s case the Court does not consider it necessary to examine his allegations that his detention on 2 March 2014 exceeded the statutory limit of three hours (see the appended table). The Court notes, however, that the circumstances of the second applicant’s detention are different (see paragraph 5 above). In the latter case, therefore, the Court finds a violation of Article 5 § 1 of the Convention also on account of detention in excess of the statutory limit of three hours (see the appended table).

21.  As regards Article 6 § 1, the Court notes that it has found that the administrative proceedings in the applicants’ cases, taken as a whole, were conducted in violation of the applicants’ right to a fair hearing under Article 6 § 1 of the Convention (see the appended table). In view of this finding, the Court considers that it is not necessary to address the remainder of the applicants’ complaints under Article 6 §§ 1 and 3 (c) and (d) of the Convention (see the appended table) (see Frumkin, cited above, § 168).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

22.  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

23.  The first applicant requested that the amount of non‑pecuniary damage be determined by the Court. The second applicant claimed 30,000 euros (EUR) in compensation for non-pecuniary damage.

24.  As regards pecuniary damage, the first applicant did not submit any pecuniary damage claim because he had not paid the fine. He requested the Court to find that any attempt to enforce the domestic decision ordering him to pay the fine would violate Article 11 of the Convention.

25.  The Government submitted that the award of just satisfaction, if the Court finds a violation of the Convention, must be in accordance with the Court’s well-established case-law.

26.  Regard being had to the documents in its possession and its case‑law concerning violations of Article 11 on account of arbitrary arrests at peaceful assemblies, the Court considers it reasonable to award the applicants the amounts indicated in the appended table in respect of non‑pecuniary damage, plus any tax that may be chargeable.

27.  As regards the first applicant who submitted that he had not paid the fine, the Court notes that a decision ordering an administrative punishment is enforceable within two years from the time when the decision became final (see above). This period would normally have expired in 2016 in respect of the applicant concerned. In the absence of any information as to enforcement of the relevant domestic decision and, in particular, stay or suspension of its enforcement, the Court assumes that the decision will not be enforced.

B.     Costs and expenses

28.  The first applicant claimed EUR 1,000 for the services of his representatives in domestic proceedings. The second applicant claimed 150,000 Russian roubles (approximately EUR 2,195) for representation before the Court and EUR 21 for postal expenses.

29.  The Government contested the claims as irrelevant.

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, its case‑law and the repetitive nature of the legal issues examined in this case, the Court considers it reasonable to award each applicant EUR 850, plus any tax that may be chargeable to them. In so far as the second applicant is concerned, this amount should be paid directly to his representative, as requested by the applicant. The Court further awards the second applicant EUR 21, plus any tax that may be chargeable.

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 complaint under Article 5 § 1 of the Convention concerning deprivation of liberty of the first applicant in excess of three hours and the complaints under Article 6 §§ 1 and 3 (c) and (d) of the Convention concerning the lack of legal and consular aid, and cross-examination of certain witnesses (see the appended table);

6.      Holds

(a)   that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable. The award to Mr Akhunov (application no. 5014/15) should be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

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

Done in English, and notified in writing on 8 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Helen Keller
Deputy Registrar                                                                       President

 

APPENDIX

 

No.	Application no. Date of introduction	Applicant’s name Date of birth Place of residence   Represented by	Name of the public event Location Date	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	Amount awarded for pecuniary damage per applicant	Amount awarded for non-pecuniary damage per applicant	Amount awarded for costs and expenses per application
1.	5014/15 30/12/2014	Sergey Safuanovich AKHUNOV 1967 Moscow	Political demonstration Moscow   02/03/2014	Article 20.2 § 5 of the CAO   Administrative fine RUB 10,000	Appeal decision Moscow City Court   30/06/2014	(i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of the 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 in excess of 3 hours; Art. 6 § 3 (d) – the court refused to call the police officers who had arrested the applicant.	n/a	EUR 5,000 (five thousand euros)	EUR 850 (eight hundred fifty euros)
2.	37483/15 14/07/2015	Roman Borisovich NEMUCHINSKIY 1981 Dnepropetrovsk, Ukraine     Karinna Akopovna MOSKALENKO	Political demonstration Moscow   30/12/2014	Article 19.3 § 1 of the CAO   15 days of administrative imprisonment	Appeal decision Moscow City Court   26/03/2015	(i) Art. 5 § 1 - unlawful deprivation of liberty: arrest and transfer to the police station on 30/12/2014 for the purpose of drawing up a record of administrative offence; detention in excess of 3 hours (till approximately 12.00 p.m. on 31/12/2014) (see Navalnyy and Yashin v. Russia, no. 76204/11, §§ 91‑98, 4 December 2014); Art. 6 § 1 - lack of fair hearing: the courts based their findings exclusively on the evidence submitted by the police officers (see Navalnyy and Yashin, cited above, §§ 82-85);   (ii) Art. 6 § 3 (c) - the applicant was not able to defend himself as he was not allowed to meet the Ukrainian Consul after his arrest and thus be provided with legal and consular aid.	Not claimed	EUR 10,000 (ten thousand euros)	EUR 850 (eight hundred and fifty euros) to be paid to the representative   EUR 21 (twenty one euros)