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THIRD SECTION

 

 

 

 

 

 

 

 

CASE OF RYKLIN AND SHAROV v. RUSSIA

 

(Applications nos. 37513/15and 37528/15)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

12 February 2019

 

 

 

 

 

 

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

 

In the case of Ryklin and Sharov v. Russia,

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

Helen Keller, President,
Pere Pastor Vilanova,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 22 January 2019,

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

PROCEDURE

1. The case originated in two applications (nos. 37513/15and 37528/15) 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, Mr Aleksandr Yuryevich Ryklin and Mr Sergey Aleksandrovich Sharov ("the applicants"), on 3 July 2015.

2. The applicants were represented by Ms I. Biryukova, a lawyer from "Civil Assistance" ( Комитет "Гражданское содействие") , an NGO based in Moscow. The Russian Government ("the Government") were represented by their Agent, Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

3. On 30 June 2017 notice of the applications was given to the Government.

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

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The first applicant (Mr Ryklin) was born in 1958. The second applicant (Mr Sharov) was born in 1956. Both applicants are human rights activists and pro-democracy campaigners. They both live in Moscow.

A. Notification of a public assembly

6. On 21 April 2015 the applicants, with three others, sent written notification to the Moscow Mayor's office of their intention to hold a demonstration with some 15,000 participants from 7 p.m. to 10 p.m. on 6 May 2015 in Bolotnaya Square. After the expiry of the statutory period for the authority's reply, on 28 April 2015 the applicants wrote a letter to the Mayor's office stating that they considered the event of 6 May 2015 to have been approved by the Mayor.

7. On 27 April 2015 the Regional Security and Anti-Corruption Department of Moscow telephoned the applicants and suggested that the event be held on Marshal Vasilevskiy Street. On 30 April 2015 the Department repeated this proposal in a letter. The event organisers were also warned that if they rejected this proposal they would not be allowed to hold a public event at all.

8. According to the applicants, they informed all possible participants in the demonstration about its cancellation by way of posting information on the internet and via various mass-media outlets.

B. The events of 6 May 2015

9. At around 7.05 p.m. both the applicants arrived in Bolotnaya Square, where they saw a gathering of some fifty people standing quietly, without any banners. According to the applicants, each positioned himself at a distance from other people with a political banner. The applicants considered that each of them was staging a solo demonstration which did not require prior notification of the authorities. A few minutes later the applicants were arrested and taken to a police van.

10. According to the Government, on 6 May 2015 the applicants, acting in a group of fifty people, organised and held a public assembly without prior notification being given to the authorities. The applicants called upon others to shout the slogans "Freedom to political prisoners", "Death to fascists" and others; the second applicant held a banner stating that all "Bolotnaya participants" were innocent. The applicants did not respond to the multiple demands by the police that they cease their actions, and at 7.35 p.m. they were taken to the Yakimanka district police station.

11 . According to the records of transfer to the police station ( протоколы доставления ) and the administrative arrest records, the first applicant was brought to the police station at 7.40 p.m. on 6 May 2015 and placed under administrative arrest at the same time. The second applicant was brought to the police station at 7.25 p.m. and placed under administrative arrest at 7.40 p.m. The records of the transfer contained an indication that both applicants were taken to the police station for an administrative offence record to be drawn up.

12. According to the Government, the term of the applicants' retention in the police station was extended to forty-eight hours. On 6 May 2015 at 10.15 p.m. the first applicant was transported to the police station in Zamoskvorechye District of Moscow. On 7 May 2015 at 4 p.m. he was taken to the Zamoskvoretskiy District Court of Moscow. The second applicant was taken to that same court on 7 May 2015 at 4.10 p.m.

13. At the police stations both applicants were accused of organising and holding a group public event without notifying the authorities in advance, in breach of Article 20.2 § 2 of the Code of Administrative Offences (hereinafter "the CAO"). In particular, they called upon others to shout political slogans; the second applicant had a banner.

C. The administrative proceedings against the applicants

14 . On 7 May 2015 the Zamoskvoretskiy District Court convicted the first applicant under Article 20.2 § 2 of the CAO and sentenced him to ten days' detention. The court found that the first applicant, with the second applicant, had organised and held a group public event in the form of a "meeting" with about fifty participants, without notifying the authorities in advance. It dismissed the applicant's argument that he had staged a solo demonstration, after considering it as a line of defence. The court also refused to admit in evidence a video recording of the events in Bolotnaya Square, because it was "undated and did not contain the entire chronology of events preceding [the applicant's] arrest".

15 . On the same day the Zamoskvoretskiy District Court heard the case against the second applicant. The court reiterated the description of the administrative offence imputed to the first applicant, found the second applicant guilty under Article 20.2 § 2 of the CAO, and sentenced him to ten days' detention. The court dismissed the evidence of two eyewitnesses who stated that the second applicant had been standing alone on the bridge with a banner. It also refused to admit in evidence video recordings and photographs showing the second applicant, because neither of them contained "information about the address".

16 . Both the applicants appealed, insisting that they had staged solo demonstrations. On 13 May 2015 the Moscow City Court upheld the judgments. Referring to the statutory definition of a "meeting" (the presence of people in a specific place in order to publicly express their opinions, essentially on social and political issues), the appellate court considered that some fifty people had been present in Bolotnaya Square, including the applicants, who had called on others to shout political slogans.

II. RELEVANT DOMESTIC LAW AND PRACTICE

17. For a summary of domestic law and practice concerning regulations relating to the conduct of public events, liability for breaches committed during such events, and administrative transfer and arrest, see Lashmankin and Others , nos. 57818/09and 14 others, §§ 216-312, 7 February 2017, and Novikova and Others v. Russia , nos. 25501/07and 4 others, §§ 47-85, 26 April 2016.

18 . Since 6 January 2013 Moscow City Law no. 10 of 4 April 2007 has provided that the distance between solo demonstrations should be no less than fifty metres. It also specifies that simultaneous demonstrations should be treated as solo demonstrations only if they do not have a common goal and organisation (section 2.3).

THE LAW

I. JOINDER OF THE APPLICATIONS

19. Given their common factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

20. The applicants complained that their arrest and retention at the police stations had been unlawful and arbitrary. They relied on Article 5 § 1 of the Convention, the relevant part of 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:

...

(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; ..."

21. The Government stated, without giving any detail, that the domestic remedies had not been exhausted. The Court dismisses this argument as unsubstantiated. As to their reference to recourse to the review procedure under Article 30.12 of the CAO, the Court reiterates that, as a rule, this was not a remedy to be used prior to lodging an application before it in July 2015 (see Smadikov v. Russia (dec.). no 10810/15 31 January 2017).

22. As regards the applicants' initial complaint under Article 5 of the Convention, the Court notes that it was unspecific and did not disclose any essential element pertaining to the legality of a deprivation of liberty. Accordingly, it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

23. In their observations in 2018 the applicants submitted new legal arguments, in particular that they had not been informed of the charges against them during the first three hours of their retention in the police stations, as required by law. Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

24. The applicants complained of the lack of a prosecuting party at the court hearings in the administrative proceedings against them, and that those proceedings were unfair. They relied on Article 6 § 1 of the Convention, the relevant parts of which provide as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ..."

25. The Government submitted that the CAO did not provide for mandatory participation of a public prosecutor in each case concerning an administrative offence. Their submissions in that respect were similar to those made in Karelin v. Russia (no. 926/08, §§ 46-48, 20 September 2016). The Government insisted that the domestic courts had not taken the role of the prosecution when examining the applicants' cases, and that those courts' decisions were well reasoned.

26. The applicants argued that in the absence of a prosecuting party the trial judge had taken on the role of the prosecution, in breach of the "impartiality" requirement under Article 6 § 1 of the Convention.

A. Admissibility

27. The Court notes that the complaint relating to the lack of opportunity to examine an unspecified police officer was first raised by the applicants' lawyer in her observations of 30 January 2018. Accordingly, this complaint has been introduced out of time, and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

28. The Court notes that the complaint relating to the requirement of objective impartiality on account of the lack of a prosecuting party 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.

B. Merits

29. The Court reiterates at the outset that the criminal limb of Article 6 of the Convention was applicable to the proceedings against the applicants under the Russian CAO (see Mikhaylova v. Russia , no. 46998/08, § 69, 19 November 2015). It has previously found that the lack of a prosecuting party in the context of oral hearings resulting in the determination of administrative charges constitutes a serious shortcoming in breach of the objective impartiality requirement of Article 6 § 1 of the Convention (see Karelin , cited above, §§ 69-84). It notes that the essential factual and legal elements of the present case and the case of Karelin (ibid., §§ 59-68) are similar. The parties' submissions in the present case disclose no reason for the Court to depart from its earlier judgment.

30. There has therefore been a violation of Article 6 § 1 of the Convention on account of the objective impartiality requirement in relation to each applicant.

IV. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

31 . Referring to Article 11 of the Convention, the applicants complained that taking them to the police station and imposing administrative convictions on them for expressing an opinion on a matter of public interest constituted unlawful and disproportionate interference with their right to freedom to hold opinions.

32. In view of the nature and scope of the applicants' arguments and the authorities' reliance on the PEA's rules relating to group events, the Court finds it appropriate to examine this case under both Articles 10 and 11 of the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10and 22768/12, § 126, 20 March 2018), the relevant parts of which read as follows:

Article 10

"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 ..."

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 ..."

A. Admissibility

33. 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.

B. Merits

1. The parties' submissions

34. The applicants maintained their complaints.

35. The Government reiterated their submissions concerning statutory regulation of public events, made in Novikova and Others (cited above, §§ 95-96). The applicants had organised and held a group public event in the form of a "meeting", without notifying the Moscow authorities in advance. In the Government's view, there were no compelling reasons for holding this event on a particular date, and the applicants had had sufficient time to obtain authorisation from the city authorities. They had therefore been lawfully held liable for a breach of the PEA requirements.

2. The Court's assessment

36. The Government accepted that the applicants' arrest at the site of the public event and their administrative convictions had constituted an interference with their right to freedom of peaceful assembly and their right to freedom of expression. Such an interference constitutes a breach of Articles 10 and/or 11 of the Convention unless it is prescribed by law, pursues one or more legitimate aims under paragraph 2 of each Article, and is "necessary in a democratic society".

37. The applicants submitted no convincing argument that their administrative transfer, arrest and administrative conviction had had no basis in the domestic law. Thus, the Court will focus on the arguments pertaining to the proportionality of the interference with the applicants' rights.

38. The Court has taken note of the applicants' argument that both had staged solo demonstrations, which happened to coincide as to venue and timing. It is noted that there was a specific statutory requirement of fifty metres of distance between solo demonstrations in Moscow in 2015 (see paragraph 18 above). The Court considers that the applicants' argument was not devoid of substance. However, the court decisions in the administrative cases against the applicants contain no specific assessment of the "solo demonstration" argument. It remains unclear whether each applicant was standing at this or another non-negligible distance from each other, other solo demonstrators (if any) or any group of people that had gathered following their earlier initiative for a group event.

39 . T he domestic courts found that the applicants had organised and held a group public event in the form of a "meeting" without prior notice. Even accepting that the applicants did indeed act in that manner, the Court has consistently found a violation of Article 11 of the Convention in a situation in which the organisers of or participants in a public gathering are arrested and convicted of administrative offences for the sole reason that the Russian State authorities perceive their assembly to be unauthorised (see, as a most recent authority, Lashmankin and Others , cited above, §§ 459-63 and 475, and the cases cited therein). Having examined the proportionality of the interference in those cases, the Court discerns, inter alia , in the absence of any reprehensible act or non-minor disturbance on the part of the applicants, no "pressing social need" for their arrest and conviction of an administrative offence.

40. In view of the domestic decisions and the other material submitted by the parties, the Court has not identified any fact or argument capable of persuading it to reach a different conclusion in the present case. It observes that each applicant was sentenced to ten days' detention for organising a group public event held without prior notice. It was not suggested that they had demonstrated violent behaviour or had in any other way disrupted peace or public order. There is nothing to suggest that the gathering, as it actually happened, entailed any adverse consequence or damage or the necessary mobilisation of police resources in that context, apart from its formal non-compliance with the PEA. Nor did the national authorities explain why it had been preferred not to allow the demonstrators, including the applicants, to complete the assembly, and to impose a reasonable fine for breach of the notification rules on the spot or later on (see, mutatis mutandis , Novikova and Others , cited above, § 175). Accordingly, the Court considers that in the instant case the overall reaction of the domestic authorities was not "necessary in a democratic society".

41. There has therefore been a violation of Article 10 of the Convention, seen in the light of Article 11, in respect of each applicant.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

42. 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

43. Each applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 5,000 on account of lost earnings during the period when they had been serving their sentences of administrative detention.

44. The Government contested the claims for non-pecuniary damage as excessive and unreasonable.

45. The Court dismisses the pecuniary claim as unsubstantiated. Taking into account the nature and scope of the violations of Articles 6 and 10 of the Convention (the latter being seen in the light of Article 11) in respect of each applicant, and making its assessment on an equitable basis, the Court awards each applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

46. Each applicant also claimed EUR 2,000 for legal representation in the proceedings before the Court.

47. The Government contested the claim on the grounds that there was no proof that the legal fees had actually been incurred.

48. 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. The Court is satisfied that the contracts for legal services (in respect of the proceedings before the Court) concluded with the applicants' lawyer created legally enforceable obligations to pay for the representative's work. Regard being had to these considerations, the documents in its possession and the repetitive nature of the legal issues examined in this case, the Court considers it reasonable to award each applicant the sum of EUR 500 relating to their legal representation before the Court, plus any tax that may be chargeable to each applicant.

C. Default interest

49. 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 complaints under Articles 6, 10 and 11 of the Convention admissible and the remainder inadmissible;

 

3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the objective impartiality requirement in respect of each applicant;

 

4. Holds that there has been a violation of Article 10 of the Convention seen in the light of Article 11 in respect of each applicant;

 

5. Holds

(a) that the respondent State is to pay each applicant, 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) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to each applicant, in respect of costs and expenses;

(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;

 

6. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 12 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helen Keller
Deputy Registrar President