European Court of Human Rights

 

 

THIRD SECTION

CASE OF NEPOMNYASHCHIKH v. RUSSIA

(Application no. 51118/16)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

8 June 2021

 

 

 

 

 

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

In the case of Nepomnyashchikh v. Russia,

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

          Georgios A. Serghides, President,
          María Elósegui,
          Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 51118/16) 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 Ivan Andreyevich Nepomnyashchikh (“the applicant”), on 26 August 2016;

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

the parties’ observations;

Having deliberated in private on 11 May 2021,

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

INTRODUCTION

1.  The case concerns the applicant’s criminal conviction for acts of mass disorder and violence against the police during the suppression of a demonstration at Bolotnaya Square in Moscow on 6 May 2012.

THE FACTS

2.  The applicant was born in 1990 and lives in San Rafael, California, the USA. The applicant was represented by Mr D. Gaynutdinov, a lawyer practising in Sofia, Bulgaria.

3.  The Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

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

I.         Demonstration of 6 May 2012

5.  The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below.

II.      Criminal proceedings against the applicant

6.  The applicant at the time was a political activist who had previously taken part in several public protests. According to him, on 6 May 2012 he arrived at Kaluzhskaya Square in Moscow to take part in the “March of Millions”. At around 6.50 p.m. he found himself near Malyy Kamennyy Bridge in the crowd surrounded by police officers who were beating the protestors with truncheons and arresting them. A police officer attacked him using a truncheon. The applicant was outraged and scared. He tried to protect himself from the blows by extending his arms forward and distancing himself from the police. Four police officers eventually grabbed him and escorted to a police car, which took him to a police station.

7.  On 19 May 2012 the investigators questioned police officer Mr G. who had been present at Bolotnaya Square at the time of the events in question. He testified that the participants of the acts of mass disorder had thrown chunks of tarmac, stones and bottles at the police and had shouted slogans. Mr G. stated that neither he nor his colleagues had sustained any injuries as a result of these actions.

8.  On 22 October 2014 Mr G. was questioned again, after having familiarised himself with a video recording of the events in question. He confirmed that he was depicted in the recording together with his colleague Mr K. In the recording they were facing a thirty-year old man with short dark hair, dressed in red t-shirt and hooded jacket, with an umbrella in his arms. The young man provoked the police officers with his actions and words, which Mr G. could not remember. In response to Mr G.’s and Mr K.’s attempts to apprehend him, the man pushed Mr K.’s hands away and tried to escape but was hampered by the crowd. When Mr G. approached the man, the latter hit him on the left wrist. The recording then depicted the man striking Mr K.’s head with the umbrella. Mr G. had not seen the blow, and Mr K. had not told him about it. Then Mr G. tried to grab the man’s clothes to apprehend him but the latter was resisting. The recording then showed Mr G. and Mr. K. apprehending the man, with the assistance of other police officers. Mr G. further stated that he had felt pain when the man had hit him on the wrist but sustained no injuries.

9.  On the same date the police questioned the applicant about the events of 6 May 2012. He refused to make any self-incriminating statements in accordance with Article 51 of the Constitution. Afterwards the applicant took part in an identification parade before a police officer, Mr A.K., who identified him as a person who had taken part in acts of mass disorder on 6 May 2012 in Bolotnaya Square, resisting police officers and hitting them with his hands.

10.  On the same day the applicant was arrested. On 26 February 2015 the Basmannyy District Court of Moscow ordered his house arrest until 6 April 2015.

11.  On 27 February 2015 and 3 April 2015 charges were brought against the applicant under Articles 212 § 2 (participation in acts of mass disorder accompanied by violence and destruction of property) and 318 § 1 of the Criminal Code (use of violence against a public official). It was stated that the applicant had hit Police Officer K. at least once in the left hand and Police Officer G. twice in the left hand. He had also hit Police Officer K. in the head with his umbrella at least once. These actions had caused both police officers physical pain.

III.   The applicant’s trial

12.  On 6 August 2015 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against the applicant. On 20 August 2015 the same court began the trial on the merits.

13.  On 25 August 2015 Police Officer G. was examined as a witness. He testified that during the apprehension of aggressive participants of demonstration at Bolotnaya Square a young man, who was later identified as the applicant, had hit him twice in the left hand. Moreover, the applicant had hit Police Officer K. in the head with his umbrella and also in the left hand. These actions caused Police Officer G. pain but he sustained no injuries. Police Officer K., who was examined on the same date, gave similar statements.

14.  On 21 October 2015 Police Officer A.K. was questioned. He stated that he had seen the applicant at Bolotnaya Square resisting arrest and hitting police officers with his hands and an umbrella.

15.  On 1 December 2015 Ms N., who did not know the applicant before the events of 6 May 2012, was questioned as a defence witness. She testified that during the clashes between protestors and the police at Bolotnaya Square she had been knocked down at some point. The applicant and other persons had helped her to stand up, then the applicant had joined a group of people within six metres from her. At some point he had been pulled out of the crowd and arrested by the police. According to her, the applicant had neither acted aggressively nor resisted his arrest.

16.  On 22 December 2015 the Zamoskvoretskiy District Court found the applicant guilty as charged. It held, in particular, as follows:

“On 6 May 2012 at 5 p.m. at the latest [the applicant] ... arrived at Bolotnaya Square in Moscow to take part in the demonstration ...

Between 5 p.m. and 10 p.m. ... [the applicant] took part in the acts of mass disorder accompanied by violence against police officers and the destruction of property, defied lawful orders of the police and military and tried to break through the police cordon ...

Unidentified participants of acts of mass disorder threw chunks of tarmac, stones, sticks and other objects at the police ... which hit them...

[The applicant] used violence against Police Officers [K. and G.] which did not endanger their life or health. In particular, [the applicant], acting with the intention of using violence, tried to prevent police officers from arresting aggressive participants. Standing in front of [K. and G.], [the applicant] hit [K.] in his left hand and [G.] in his left hand at least once. Then he hit [K.] in the head with his umbrella and hit [G.] at least once in the left hand ... which caused them pain. ...

[The applicant] did not deny the facts shown in the video recording but pleaded not guilty ... and refused to testify in accordance with Article 51 of the Constitution.

The applicant’s guilt is established by the testimonies of victims [including K. and G.] and witnesses ... and [other evidence] ...

The court has no doubts as to reliability of this evidence ...

The fact of mass disorder taking place at Bolotnaya Square on 6 May 2012 can be seen from the [video recording].

The video shows a young man moving in the crowd ... It also shows a group of police officers in the crowd who are performing their duties and apprehending aggressive participants of acts of mass disorder.

The video then shows that the above mentioned young man has a folded umbrella in his arms, he approaches police officers who are arresting Mr Lutskevich and stands still, police officers begin arresting the young man who is resisting the arrest, he hits one police officer in the helmet with his umbrella and in the hands, and another police officer at least twice in the hands. Then the police arrests the man and takes him away.

According to the expert opinion, the [young man] was identified as [the applicant]. ...

The court is critical of the testimony of defence witness [N.] ... because it is rebutted by the testimony of victims and other witnesses which the court accepts as reliable ...”

17.  The applicant was sentenced to two years and six months’ imprisonment, calculated on the basis of a two-year prison term under Article 212 § 2 of the Criminal Code, partly concurrent with a term of one year and six months under Article 318 § 1.

18.  The applicant appealed. He indicated that the video recording did not show him hitting Police Officers G. and K. Moreover, the statements of Police Officer G. given in 2012, that is to say soon after the events at Bolotnaya Square, confirmed that he had sustained neither injuries nor pain. The applicant also considered that the court had unjustifiably dismissed the testimony of defence witnesses which made the trial unfair.

19.  On 26 April 2016 the Moscow City Court upheld the first-instance judgment.

20.  The applicant was released on 24 August 2017, having served his prison term.

RELEVANT LEGAL FRAMEWORK

21.  The relevant provisions of the Criminal Code of the Russian Federation can be found in Frumkin v. Russia, no. 74568/12, § 78, 5 January 2016.

THE LAW

I.         ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

22.  The applicant alleged that his conviction for participation in authorised demonstration had not been “necessary in a democratic society”, contrary to Articles 10 and 11 of the Convention. The Court will examine the complaint under Article 11, interpreted where appropriate in the light of Article 10 (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202). Article 11 reads as follows:

Article 11

“1.  Everyone has the right to freedom of peaceful assembly ...

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. 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.”

A.    Admissibility

23.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The parties’ submissions

24.  The applicant argued that his arrest and criminal conviction was arbitrary and politically motivated. His conviction was based solely on the statements of the police officers while his arguments and statements of defence witnesses, notably those of Ms N., were dismissed. The national courts failed to reason their decisions and to analyse the actions of the police, in particular, to what extent the police had acted culpably in their clashes with the participants of the public event. The applicant’s further submissions were similar to those made in Stepan Zimin v. Russia (nos. 63686/13 and 60894/14, § 69, 30 January 2018).

25.  The Government submitted that there had been no interference with the exercise of the applicant’s right to peaceful assembly. They argued that the criminal charges against him related to acts of violence unconnected with the exercise of freedom of peaceful assembly. Moreover, the criminal proceedings against the applicant began after the rally, and his prosecution could not retroactively interfere with his participation in the assembly. The Government further maintained that the applicant’s conviction had been based on numerous evidence examined in the trial, and that the sentence imposed on him had been in accordance with the Criminal Code provisions.

2.     The Court’s assessment

26.  The Court considers that the applicant’s prosecution and criminal conviction for acts he had committed in the course of the dispersal of the demonstration constituted an interference with the exercise of his freedom of assembly (see, for similar reasoning, Yaroslav Belousov v. Russia, nos. 2653/13 and 60980/14, §§ 168-72, 4 October 2016 and Polikhovich v. Russia, nos. 62630/13 and 5562/15, § 72, 30 January 2018). Having regard to its findings in previous similar cases, the Court is also satisfied that the applicant’s prosecution was provided for by law and pursued the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others (see Yaroslav Belousov, cited above, §§ 174‑76, and Barabanov v. Russia, nos. 4966/13 and 5550/15, § 70, 30 January 2018).

27.  As to whether the applicant’s criminal conviction was “necessary in a democratic society”, the Court notes that like many other participants of the events at Bolotnaya Square, he was found guilty of two criminal offences, namely participation in acts of mass disorder (Article 212 of the Criminal Code) and committing violent acts against a police officer (Article 318 of the Criminal Code). He was sentenced to two years and six months’ imprisonment for hitting one police officer twice in his hands and another one in the head with the umbrella and in the hands. The applicant’s acts did not endanger the life or health of those police officers and were committed during his participation in an authorised public assembly.

28.  The Court reiterates that when individuals are involved in acts of violence the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of assembly, and the imposition of a sanction for such reprehensible acts would be considered to be compatible with the guarantees of Article 11 of the Convention (see Gülcü v. Turkey, no. 17526/10, § 116, 19 January 2016, and the cases cited therein). In this case, the Court notes that the domestic courts abstained from examining the circumstances of the applicant’s arrest by the police and undeniably relied on the statements of the police officers given at least two years after the events in question and after watching the video recording (see paragraphs 7 and 8 above). Moreover, the courts dismissed the statements of the eyewitness, Ms. N. (see paragraph 15 above), confirming that the applicant had been sporadically pulled out of the crowd by the police and that his initial behaviour had been peaceful. The domestic courts’ decisions disclose no attempt to establish the relevant facts on the basis of the comparative assessment of the conflicting testimonies of the defence witnesses and the policemen. In such circumstances it cannot be said that the applicant enjoyed a procedural safeguard against arbitrary interference with the right to peaceful assembly in the domestic proceedings (see, mutatis mutandis, Stepan Zimin, cited above, § 75, and Gülcü, cited above, § 114).

29.  Even assuming that the prison sentence of one year and six months under Article 318 § 1 of the Criminal Code for using violence against a public official was justified, it is noteworthy that it was more lenient than the partly concurrent two-year prison sentence for participation in acts of mass disorder (see paragraph 17 above). It follows from the Government’s submissions that the gravity of punishment under Article 212 of the Criminal Code was attributable to the general context of the applicant’s assault on the policemen (already imputed under Article 318 of the Code) and not to the harm he thus inflicted (see paragraph 25 above). The domestic courts did not specify which of the applicant’s acts were attributable to participation in mass disorder, as opposed to use of violence against a public official (see paragraph 16 above). In describing the applicant’s participation in the mass disorder, the courts merely referred to his assaulting the police officers, also classified as a separate criminal offence (see, by contrast, Yaroslav Belousov, cited above, § 178, and Stepan Zimin, cited above, § 76, where the chanting of anti-government slogans constituted participation in acts of mass disorder).

30.  The Court further notes that there is nothing in the case file to suggest that the applicant was among those responsible for the initial acts of aggression which contributed to the deterioration of the assembly’s initial peaceful character and the onset of clashes between the protesters and the police. As far as can be discerned from the indictment, the applicant used violence against the policemen at the height of the clashes when the police were already arresting protesters, an act which, according to him, was in response to the indiscriminate and unnecessary use of force by the police (see paragraph 6 above). The domestic courts did not establish the particular circumstances in which that behaviour had occurred and dismissed the statements of Ms. N (see paragraph 15 above) with no explanation. The applicant’s overall conduct, therefore, although involving certain degree of violence, was sporadic in nature and appeared to be a spontaneous reaction to the force used by the police against the protesters, the majority of whom were peaceful. It therefore did not attain the degree of aggression which the Court found in other cases to amount to violence calling for lengthy prison terms (see, by contrast, Primov and Others v. Russia, no. 17391/06, §§ 156‑63, 12 June 2014, and Osmani and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001).

31.  Given the applicant’s minor role in the assembly and the fact that he had an incidental involvement in the clashes, the Court considers that the reasons advanced by the Government could not justify the sentencing of the applicant by a “pressing social need”.  It must be stressed, moreover, that the applicant’s criminal conviction, and especially the severity of his sentence, must have had the effect of discouraging him and other opposition supporters, and the public at large, from attending demonstrations and, more generally, from participating in open political debate. The chilling effect of the sanction imposed on the applicant was further amplified by the large‑scale proceedings in the case, which attracted widespread media coverage (see Stepan Zimin, cited above, § 79).

32.  In view of the severity of the sanction imposed on the applicant, the Court concludes that his criminal conviction was a measure that was disproportionate to the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others, and that it was therefore not necessary in a democratic society.

33.  There has accordingly been a violation of Article 11 of the Convention.

II.      ALLEGED VIOLATION OF ARTICLES 6 AND 18 OF THE CONVENTION

34.  The applicant complained that he had not been given a fair hearing in the criminal proceedings, in breach of Article 6 of the Convention. The applicant further complained under Article 18 of the Convention that his prosecution and criminal conviction by the authorities were aimed at preventing him and others from participating in public events. Articles 6 and 18 of the Convention, in so far as relevant, provide as follows:

Article 6

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 18

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

35.  The Court notes that these complaints are linked to the complaints examined above under Article 11 of the Convention and must therefore likewise be declared admissible.

36.  Having regard to its above findings under Article 11, the Court considers that it is not necessary to examine whether there has been a violation of Article 6 or of Article 18 in conjunction with Articles 10 and 11 (see, for similar approach, Barabanov, cited above, § 83).

III.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

37.  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.”

38.  The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. He did not bring any claims for pecuniary damage or costs and expenses.

39.  The Government contested the claim as excessive.

40.  Taking into account the nature and scope of the violations found in respect of the applicant, the Court awards him EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable. It also reiterates that in addition to the payment of just satisfaction awarded by the Court, the obligation to comply with the present judgment would require the respondent State to take measures to redress negative consequences resulting from the applicant’s disproportionately severe criminal conviction, noting that he has already been released after serving his sentence (see Barabanov, cited above, §§ 87-88; Stepan Zimin, cited above, §§ 90-91; and Polikhovich, cited above, §§ 90-91).

41.  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 application admissible;

2.      Holds that there has been a violation of Article 11 of the Convention;

3.      Holds that there is no need to examine the complaints under Articles 6 and 18 of the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                            Georgios A. Serghides
Deputy Registrar                                                                       President