In the case of Malofeyeva v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 7 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
36673/04) 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, Ms Antonina Vasilyevna Malofeyeva
(“the applicant”), on 12 August 2004.
The Russian Government (“the Government”) were
represented by Mr A. Savenkov and then by Mr G. Matyushkin, acting and current
Representatives of the Russian Federation at the European Court of Human Rights
respectively.
The applicant alleged that she had not been
promptly informed of the reasons for her arrest on 27 November 2003 and that
her appeal against the detention order of the same date had not been examined
speedily; that her detention from 7 to 14 June 2005 had been arbitrary; that
the related administrative offence proceedings had not been public and fair;
and that the dispersal of the demonstration and her conviction in the above
proceedings had also impinged upon her freedom of expression and freedom of
assembly. She referred to Articles 5, 6, 10 and 11 of the Convention.
On 18 March 2008 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1953 and lives in Irkutsk.
A. Criminal proceedings against the applicant
In 2003 the applicant was charged
with fraud relating to the alleged misappropriation of money in the private
company she had worked for. Her case was brought before the Kuybyshevskiy
District Court of Irkutsk. In the course of the trial, the applicant dismissed
several legal-aid lawyers and, eventually, the trial court appointed lawyer V.
as defence counsel. During the court proceedings before the District Court an
issue arose as to the applicant’s mental state and ability to stand trial.
Thus, on 14 October 2003 after hearing the parties (including the
applicant and lawyer V.), the District Court decided that the applicant should
undergo an out-patient psychiatric examination in the regional psychiatric
hospital. However, the applicant refused to comply with this court order.
A trial hearing was accordingly scheduled
for 27 November 2003, inter alia, to settle the issue of the examination.
The applicant did not appear for which reason, the same day, the District Court
ordered the applicant’s detention. The court held as follows:
“Having heard the prosecutor, the defendant and lawyer V., in
the criminal case on fraud charges against the defendant ...
The prosecutor has requested the court to order [the applicant’s]
detention because she has been obstructing the court proceedings by refusing to
undergo a psychiatric examination and has failed to attend the hearing without
a valid excuse.
Article 247 of the Code of Criminal Procedure authorises a
court to order that a defaulting defendant be brought before the court or to
order or vary a preventive measure. Article 97 of the Code authorises a court
to order a preventive measure if there is a risk that the defendant would
obstruct the proceedings ...
The court observes that despite a court order of 14 October
2003 the defendant refused to undergo a psychiatric examination ... In
addition, having been informed of the date and time of this hearing, she failed
to attend it and did not provide any valid excuse. Having come to the court’s
registry on the same day, she submitted a request there and left the court
building. These facts disclose that the applicant is obstructing the
proceedings, which justifies her placement in custody. The court also takes
into account that she is charged with a serious criminal offence ... The court
orders her arrest and detention in Irkutsk remand centre.”
By a separate decision issued on
the same date, the District Court ordered that the applicant should be placed
in the regional psychiatric hospital for the purpose of the in-patient
psychiatric examination.
On the evening of the same day, the
applicant was arrested at her home and was taken to a police station. The
arrest record, which was compiled at the police station, reads as follows:
“Grounds and reasons for arrest: a court order
...
[pre-printed text] I have been informed of my rights under
Article 46 § 4 of the Code of Criminal Procedure: (1) to be informed of the
nature of the accusation against me, to receive a copy of a decision to
institute criminal proceedings against me, or a copy of the arrest record, or a
copy of a detention order against me; ...
My comment regarding the arrest: [the applicant’s signature] My
arrest is unlawful; I have not had access to the document in which the grounds for
my arrest are stated ...”
Later the same evening she was placed in Irkutsk
remand centre.
On 28 November 2003 the applicant
appealed against the detention order of 27 November 2003 to the Irkutsk
Regional Court. According to the applicant, without a copy of the detention
order she could only make a preliminary statement of appeal. She dispatched her
appeals both to the District Court (received on 2 December 2003) and to
the Regional Court (received on 3 December 2003).
On 2 December 2003 the applicant was served with
a copy of the detention order of 27 November 2003.
On 4 December 2003 the applicant’s
next of kin retained lawyer Sh. who lodged, on the same day, an additional appeal
against the detention order. The applicant was provided with a copy of the
lawyer’s appeal and, on 10 December 2003, lodged a request to be brought to the
appeal hearing.
On 10 December 2003 the Regional Court returned
the appeal to the District Court to enable the latter to inform the other parties
to the criminal proceedings of the appeal. This was done on 19 December 2003.
The psychiatric examination of the applicant
took place from 10 to 15 December 2003 in the regional psychiatric hospital in
Irkutsk. On 16 December 2003 the medical panel issued a psychiatric report
indicating that it was not possible to draw a clear conclusion as to the
applicant’s mental state and ability to stand trial. The panel recommended
further examination in Moscow psychiatric hospital.
On 16 or 19 December
2003 the applicant submitted (to the District or Regional Court) a document
dated 10 December 2003 by which Mr G., head officer of the medical unit of
the remand centre, indicated that it would be opportune to examine whether the
applicant could be released from detention.
On 22 December 2003 the District
Court again submitted the applicant’s and her lawyers’ appeals to the Regional
Court. They were received by the Regional Court on 23 December 2003.
On 25 December 2003 the District Court held a
trial hearing, during which it dismissed counsel’s application for release and ordered
a new psychiatric examination of the applicant in Moscow psychiatric hospital.
On an unspecified date, lawyer Sh.
submitted to the Regional Court a letter dated 25 December 2003 by which the
Regional Department of Justice indicated that the relevant official registers contained
no information about the applicant’s court-appointed lawyer, advocate V.
The applicant withdrew on 5
January 2004 her request to be brought to the appeal hearing concerning the
detention order of 27 November 2003.
On 7 January 2004 the applicant
was transferred to Moscow for a psychiatric examination.
In respect of the applicant’s appeal against the
detention order of 27 November 2003 and according to the Government, “due
to the winter holiday period the appeal hearing was listed in the Regional
Court for 8 January 2004”. On that date, the Regional Court, however,
returned the file to the District Court for an “internal inquiry”. Apparently,
the reason for this adjournment was the need to verify whether the applicant
had legal assistance during the hearing on her pre-trial detention on 27
November 2003 and whether Ms V. was a professional advocate.
On 19 January 2004 Ms V. submitted
a written statement confirming that she was a professional advocate and that
she had attended court hearings in the applicant’s criminal case “on 14 October
and 17 November 2003”.
On an unspecified date,
the President of the District Court obtained a certificate from Mr G.,
indicating that the applicant was fit for detention and was receiving the
necessary medical care in the remand centre.
After the inquiry requested by the Regional
Court, on 4 February 2004 the detention file was returned to that court. The
appeal hearing was scheduled for 26 February 2004.
On 26 February 2004 the Regional Court heard the
prosecutor and counsel, and upheld the detention order of 27 November 2003. The
appeal court held that the certificate submitted by the defence was not sufficient
to warrant the applicant’s immediate release from detention because another
certificate issued by the same detention centre confirmed that the applicant
was fit for detention, although she needed a gynaecological consultation, which
could be carried out at a later date.
In April 2004 the Regional Court
examined and dismissed the applicant’s request for a supervisory review in
respect of the appeal decision of 26 February 2004. The court noted that
V. had been present at the first-instance hearing on the applicant’s detention and
that reference to the applicant’s own presence had been a clerical error.
The applicant was released in May 2004.
By judgment of 21 September 2007 the
Kuybyshevskiy District Court of Irkutsk acquitted the applicant of the fraud
charges. On 28 July 2008 the Irkutsk Regional Court upheld the judgment.
B. Administrative offence proceedings against the
applicant
1. The demonstration in Moscow and the applicant’s
arrest
In May 2005 after the applicant had been
released from detention but while the criminal case against her was still
pending (see paragraphs 6-29 above), the applicant and two others, Ms I. and Ms
B., decided to stage a static demonstration (пикетирование)
in front of various public authorities in Moscow, including the Supreme Court
of the Russian Federation to protest against the allegedly “unlawful actions of
public authorities and corruption”. As the applicant puts it, this demonstration
related to “the persistent difficulties in relation to pending cases involving
law enforcement agencies and courts, in particular in the Irkutsk Region, and
the failure of the local authorities to deal with their grievances”.
On 30 May 2005 they sent a telegram to the
Moscow Mayor’s Office informing the authorities’ of their intention to stage
static demonstrations between 3 and 16 June 2005. On 31 May 2005 the
Mayor’s Office acknowledged receipt of this telegram.
On 7 June 2005 at 9.30 a.m. the applicant and her
friends placed themselves on a pavement separated from the building of the
Federal Judges Qualifications Board by a road. Ms I. and Ms B. unfolded banners/posters
containing their message. At 9.45 a.m. they were approached by several police
officers, one of whom asked them to show documents justifying their demonstration.
The applicant explained to the officer that they needed no “authorisation” and
produced the telegram message sent to the mayor’s office and the “certified”
copy of the telegram (apparently bearing the mayor’s office stamp).
Nevertheless, the police officer told the
applicant and her friends to cease their demonstration and follow them to the
police station. As the applicant and her friends refused to comply with this,
the officer compelled them to follow him to the police station. At an
unspecified hour an arrest record was drawn up. It read as follows:
“[The applicant] was brought to the police station at 9.45 a.m.
in relation to an administrative offence under Article 19.3 of the Code of
Administrative Offences for the purpose of compiling a record (Article 27.3 of
the Code).
The person concerned has been informed of her rights and
obligations under Article 25.1 of the Code: [in the applicant’s
handwriting] I have not been informed of my rights and I do not understand them
...”
While in the police station, the applicant made
a written statement, which read as follows:
“I came to Moscow to protect my rights against various law
enforcement agencies. As follows from my notification to the authorities on 30
May 2005, I was holding a static demonstration at 9.45 a.m. in conformity with
the Public Gatherings Act.
I have been arrested by a person wearing a police uniform who
refused to introduce himself and to show his licence ...Without explaining the
actual reasons for my arrest, [the officers] told me that their superior had ordered
that we be taken to the police station ... Under section 18 of the Public
Gatherings Act the police should not impede the exercise of the right to
freedom of assembly ... There were no reasons to stop and disperse the demonstration
under section 15 of the Act ... The officer refused my request to call my next
of kin and to inform them of my arrest ...”
The police then
compiled an administrative offence report, which read as follows:
“Time, place and circumstances of the administrative offence:
on 7 June 2005 [the applicant] held a non-authorised demonstration ...
S/he has therefore committed the following administrative
office: Article 19.3 of the Code of Administrative Offences ...
The person concerned has been informed of the rights and
obligations listed in Article 25.1 of the Code: [in the applicant’s
handwriting] I have not been informed of my rights and do not understand them ...
A copy of this document has been given to the person concerned.
[in the applicant’s handwriting] I have not been given [a copy],
despite my request.”
2. Court proceedings
Thereafter, the police decided that the
applicant and her friends should be brought before the Justice of the Peace in
the 375th Circuit of the Arbatskiy District of Moscow. The judge was informed
of the incoming cases and scheduled their examination for 5 p.m.
A photocopy of a document
dated 11 June 2004 and signed by the President of the Presnenskiy District
Court indicates that under the regulations of that court the public had access
to the premises until 6 p.m. during weekdays. It appears that the office of the
justice of the peace who dealt with the applicant’s case was situated in the
same building.
According to the applicant, she and her friends
were brought to the premises of the Presnenskiy District Court some time after
7 p.m. The judge first examined Ms I.’s case, in which the applicant acted as a
lay defender. The examination of the applicant’s case started at or around 10 p.m.
and lasted some minutes. The judge granted the applicant’s request to have
access to the case file but the applicant unsuccessfully sought an adjournment
to have time to study the case file and to prepare her defence.
The judge found
the applicant guilty of non-compliance with a lawful order by a police officer,
an offence under Article 19.3 of the Code of Administrative Offences. The
applicant was sentenced to seven days of detention, to be counted from the
moment of her arrest on the same morning. The court held as follows:
“... [pre-printed text] I understand my rights under Article
25.1 of the CAO. I have no challenges or requests.
[in the applicant’s handwriting] I have lodged a request and
challenged the judge but these motions have not been examined.
The court has established the following:
On 7 June 2005 [the applicant] failed to comply with a lawful
order by police officers ... and failed to end a non-authorised demonstration
in front of the Supreme Court of Russia ... The defendant has pleaded not
guilty ...
The court has granted [the applicant’s] request to have her
co-participants in the demonstration as lay defenders in these proceedings. The
court has dismissed her request to obtain external video recordings of the
building of the Supreme Court since there is no reason to doubt the veracity of
the administrative offence record, in particular as regards the commission of
the offence, its place and circumstances.
Mr S., police officer, has been heard as a witness and has made
the following statement. He and his colleagues asked the demonstration
participants to show documents relating to the authorisation of the public
event. [The applicant] handed over a telegram. Since there were doubts as to the
authenticity of the document, [the applicant] and the other two were asked to
show their identity documents. Since they refused, despite several warnings,
the police took them to the police station to determine their identities and to
determine the circumstances relating to the lawfulness of the demonstration.
Since [the applicant] and the others refused to follow the police, they were
compelled to do so ...
The court has seen the documents mentioned above, and notes
that they have been amended. The court accepts that in the circumstances the
police officers had sufficient reasons to doubt the authenticity of the
documents. Therefore, their order to the persons concerned to accompany them to
the police station was lawful and justified. It is also so in view of the defendants’
refusals to show identity documents.
The court rejects [the applicant’s] allegation that she was not
asked to show her identity documents ... Her refusal to show an identity
document and to go with the police officers to the police station discloses
non-compliance with lawful orders by police officers ...”
Ms I. and Ms B. were sentenced to five and six days of
detention respectively.
The applicant was released on 14 June 2005,
having served the sentence imposed by the justice of the peace.
The applicant and her friends appealed against
the judgments of 7 June 2005 to the Presnenskiy District Court of Moscow. On
24 June 2005 the applicant was notified of the date and time of the appeal
hearing. On 27 June 2005 the applicant asked that her lay defenders be
informed of the date, time and place of the appeal hearing.
On 27 June 2005 the
District Court examined the applicant’s appeal and upheld the judgment of 7
June 2005 against her. The court held as follows:
“On 7 June 2005 [the applicant] held a non-authorised demonstration
and held a banner containing a very negative assessment of the professional
activity of the Prosecutor General, the President of the Supreme Court and the
Minister of Justice. She refused to comply with lawful orders to end the
violation of the public order, threatened police officers with prosecution,
thereby resisting a lawful order by police officers ... Under sections 5 and 12
of the Public Gatherings Act one has a right to assemble at a venue and at an
hour previously indicated in a notification to the competent authority ... Section
8 of the Act prohibits public events in the immediate vicinity of court
buildings. Section 17 of the Act provides that failure to comply with a lawful
order of the police or resistance to the police entails the liability of the
persons concerned ...”
On 1 July 2005 the District Court examined Ms I.’s
appeal and discontinued the administrative offence case against her, holding as
follows:
“... The record of the administrative offence indicates that
the defendant refused to comply with the repeated orders of the police officers
... However, the record contains no indication of the content of such orders.
The reports made by the police officers state that the defendant had been
arrested in relation to a non-authorised demonstration. Mr P., police officer,
has explained to the appeal court that the administrative case concerned unlawful
demonstrating. In view of the above, the appeal court considers that the
administrative proceedings were initiated against the defendant in relation to a
fact falling with the scope of Article 20.2 of the CAO [Code of Administrative
Offences] ... The court considers that sufficient evidence was not adduced at
first instance to find the defendant guilty of the offence under Article 19.3
of the CAO ... ”
On 6 July 2005 the District Court quashed the
first-instance judgment in respect of Ms B. and discontinued the administrative
offence case against her, holding as follows:
“... It follows from reports made by police officers that the
defendant was arrested after [the group] had attempted to carry out a
non-authorised demonstration; she failed to comply with repeated orders of
police officers and shouted ... The record of the administrative offence refers
to unlawful demonstrating falling within the scope of Article 20.2 of the CAO ...
The record was not signed by the head officer. The court considers that
sufficient evidence was not adduced at first instance to find the defendant
guilty of the offence under Article 19.3 of the CAO ...”
The applicant lodged numerous complaints against
the justice of the peace who convicted her. By a letter of 5 September 2005 the
District Court dismissed her complaint, indicating that, as explained by the justice
of the peace, he had examined the cases against the applicant and her friends
between 5 p.m. and 10 p.m. on 7 June 2005.
3. Conditions of detention
According to the applicant, from
7 to 9 June 2005 she was kept in the police station without food or drink. The
cell had no windows or system of ventilation. She had no access to a toilet and
had to urinate in the presence of other detainees, including male
detainees. From 9 to 14 June 2005 she was kept in a detention facility, in
which, despite her illnesses, she was forced to clean the premises.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention pending criminal proceedings
Article 97 of the Code of Criminal Procedure
(CCrP) provided at the relevant time that an investigator or a court could
order a preventive measure, for instance detention, if there were sufficient
grounds to consider that the defendant would flee investigation or trial, would
continue his criminal activity or would threaten a witness or otherwise
obstruct the proceedings. Article 247 of the CCrP provided that a court was
empowered to order that the defaulting defendant be brought to the trial, or to
order or vary a preventive measure.
B. Public Gatherings Act (Federal Law no. 54-FZ
of 19 June 2004)
Section 7 of the Act provided,
at the time, as follows:
“1. A person organising a public gathering (except
for a meeting or a static demonstration (пикетирование))
should notify in writing the competent public authority not earlier than
fifteen and not later than ten days before the date of the event ... For a static
demonstration by several people notification may be made no later than three
days before the demonstration ...
3. A notification should contain a reference to
1) the aim of the event;
2) the type of the event;
3) the venue(s) and itineraries;
4) the date and time of the event;
5) the expected number of participants; ...
7) the full name, contact address and telephone number of the
event organiser ...”
Section 12 of the Act provided
for the following procedure on the part of the competent public authority
following receipt of the notification:
“1. The authority should process as follows:
1) acknowledge in writing receipt of the
notification and indicate the date and time of receipt;
2) inform the event organiser ... (on the same day -
in the case of a notification received less than five days before a static
demonstration by several people) of any alternative proposal concerning the
event venue and/or time ...”
An organiser of a public gathering had the
following obligations under the Act:
“4. ...1) submit a notification of the public event in conformity
with the requirements of section 7 ...;
2) inform ... the public authority in writing
whether the alternative proposal concerning the event time and/or venue was
accepted; ...
6) suspend the event or end it if the event participants
committed unlawful actions;
5. The organiser of the event is not allowed to
proceed with it if the above notification was not submitted in conformity with
the time-limit or if the authority’s alternative proposal for another venue
and/or time for the event was not settled with the public authority ...”
A public event could be
held in any suitable venue. No public event could be held in the immediate
vicinity of court buildings (section 8).
C. Code of Administrative Offences (CAO)
1. Material law
Non-compliance with a lawful order by a police
officer, given within the scope of his or her professional duties, is
punishable by a fine or administrative detention of up to fifteen days (Article
19.3 of the CAO).
Violation of the rules or
procedure for organising or participating in a public gathering (a meeting,
demonstration or static demonstration) is punishable by a fine (Article 20.2 of
the CAO).
2. Procedural law
A person who is prosecuted in administrative
offence proceedings has the following rights: to have access to the case file,
to make submissions, to adduce evidence, to lodge requests and to legal
assistance (Article 25.1 of the CAO). The administrative case should be
examined in the presence of this person (ibid.).
A defendant in an
administrative case may be assisted by an advocate or another person chosen by
the defendant (Article 25.5 of the CAO).
56. In exceptional circumstances relating to the
needs for a proper and expedient examination of the administrative case, the person
concerned may be placed under administrative arrest (административное задержание)
(Article 27.3 of the CAO). The arrestee should be informed of his rights and
obligations; this notification should be mentioned in the arrest record.
Depending on the
type of offence, the competent public authority (for instance, the police)
should compile the administrative offence file (including arrest record,
administrative offence record, personal search record) and transmit it to the
competent court for examination. The file should be sent within one day, or
immediately if administrative detention or deportation may be incurred (Article
28.8 of the CAO).
A court should
examine the administrative case within fifteen days, to which one month may be
added if additional evidence is needed. However, if the administrative charge
concerns an offence punishable by administrative detention, the case should be
examined on the day when the administrative record was submitted to the court
or within forty-eight hours of the defendant’s arrest (Article 29.6 of the
CAO).
Administrative cases
should be examined at a public hearing, except in cases relating to State or
other protected secrets or where it is necessary to protect the honour or
reputation of the person(s) participating in the proceedings (Article 24.3 of the
CAO).
Chapter 25 of the CAO
entitled “Participants in administrative offence proceedings, their rights and
obligations” lists the following participants: the defendant, the victim, legal
representatives of a person or a legal entity, a witness, a defender or a
representative, an attesting witness, an expert, a translator and a prosecutor.
Article 25.11 provides that a public prosecutor may institute administrative
offence proceedings; to take part in the examination of the case, to make
requests, to deliver opinions; to appeal against the court decision, as well as
“to carry out other actions prescribed by law”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE
CONVENTION
The applicant complained under Article 5 of the
Convention that she had not been promptly informed of the reasons for her
arrest on 27 November 2003.
Article 5 § 2 of the Convention reads as
follows:
“... 2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his arrest and
of any charge against him.”
A. Admissibility
The Court notes that this part of the
application 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
The applicant submitted that she had not been
present at the detention hearing on 27 November 2003, that she had been
arrested on the same evening and had not been given a copy of the detention
order. She became aware of the reasons for her arrest only on 2 December 2003
when she was given a copy of the detention order of 27 November 2003. The court
order of the same date for her in-patient examination in a psychiatric hospital
was only given to her in 2004.
The Government argued that, as the arrest record
compiled on 27 November 2003 showed, the applicant had been informed of
the reasons and grounds for her arrest.
2. The Court’s assessment
The Court reiterates that Article 5 § 2 contains
the elementary safeguard that any person arrested should know why he is being
deprived of his liberty. This provision is an integral part of the scheme of
protection afforded by Article 5: by virtue of paragraph 2 any person arrested
must be told, in simple, non-technical language that he can understand, the
essential legal and factual grounds for his arrest, so as to be able, if he
sees fit, to apply to a court to challenge its lawfulness in accordance with
paragraph 4. Whilst this information must be conveyed “promptly”, it need not
be related in its entirety by the arresting officer at the very moment of the
arrest. Whether the content and promptness of the information conveyed were
sufficient is to be assessed in each case according to its special features
(see, among others, Ladent v. Poland, no. 11036/03, § 63, 18 March 2008,
and Van der Leer v. the Netherlands, 21 February 1990, §§ 30 and 31,
Series A no. 170-A).
The Court has had regard to the circumstances of
the case, as well as the type of the deprivation of liberty in question. The
Court reiterates in this connection that the applicability of one ground listed
in Article 5 § 1 does not necessarily preclude the applicability of
another and detention may be justified under more than one sub-paragraph of
that provision (see, for instance, Harkmann v. Estonia, no. 2192/03, § 35,
11 July 2006). Although the parties have not taken a stance on this issue, the
Court considers that, in view of the circumstances of the case and the wording
of the detention order, the applicant’s arrest and detention were effected on
the grounds mentioned in Article 5 § 1 (b) and (c) the Convention.
Undoubtedly, by November 2003 the applicant, who
was charged with a criminal offence and was standing trial, had been informed
of the nature and cause of the “accusation” against her, within the meaning of
Article 6 § 2 of the Convention, as well as of the “charge” against her within
the meaning of Article 5 § 2. However, the Court considers that the above was
not sufficient to also comply with the promptness guarantee as to “the reasons
for [the] arrest”, which are also mentioned in Article 5 § 2 of the Convention.
The Court observes that the applicant was
arrested on 27 November 2003 under a court order issued on the same date
because it was considered that she had failed to comply with an earlier court
order requiring her out-patient psychiatric examination (see paragraph 6 above) and because she had obstructed the court proceedings in the criminal case against
her by failing to attend the hearing on 27 November 2003 without a valid excuse.
Having examined the available material,
including the arrest record, the Court finds it established that the applicant
was not present at the hearing on 27 November 2003. A lawyer was, however,
present for the defence (see paragraphs 7, 23 and 27 above). It appears that
this lawyer had been appointed as legal-aid counsel in the applicant’s criminal
case. There is no indication, and the Government have not suggested, that
counsel promptly informed the applicant of the reasons for her arrest. In any
event, the obligation to inform under Article 5 § 2 is on the
national authorities. In addition, in the absence of any argument or evidence
to the contrary, the Court is prepared to accept the applicant’s submission
that she first became aware of the contents of the detention order on 2
December 2003, that is, several days after the actual arrest. Also, it has not
been contested that the applicant was not promptly provided with a copy of the
court order requiring her placement in a psychiatric hospital for an in-patient
psychiatric examination there (see paragraph 12 above).
It is observed that the arrest record compiled
on 27 November 2003 contained reference to “a court decision” as the ground for
arrest, without any further detail (see paragraph 9 above). Arguably, this
reference related to one of the above court orders. It does not transpire that
before 2 December 2003 the applicant received information about the
essential legal and factual grounds for her deprivation of liberty, so as to be
able, if she saw fit, to challenge its lawfulness in accordance with paragraph
4. In the Court’s view, prompt knowledge of the reasons for the deprivation of
liberty was relevant for the purposes of the applicant’s appeal against the
detention order and/or the court order requiring her placement in the
psychiatric hospital.
Thus, the Court concludes that, while the
applicant was aware of the charges against her, it has not been shown that she
was “promptly” informed of the reasons for her arrest.
There has accordingly been a violation of
Article 5 § 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The applicant also complained under Article 5 of
the Convention that her appeal against the detention order of 27 November 2003
had not been examined speedily. The Court will examine this complaint under
Article 5 § 4 of the Convention, which reads as follows:
“... 4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful.”
A. Admissibility
The Court notes that this part of the
application 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
The applicant argued that the appeal proceedings
in respect of the detention order of 27 November 2003 took over eighty days,
which was incompatible with the “speediness” requirement under Article 5 § 4 of
the Convention.
The respondent Government argued that one period
of delay (from 28 November to 10 December 2003) was due to the applicant’s
failure to submit an appeal against a detention order through the
first-instance court, as required by law. It was then incumbent on that court
to notify the other parties of the appeal. Another delay was caused by the
winter holiday period, while another delay in January-February 2004 was due to
the need to obtain further submissions and documents concerning defence counsel
at first instance and the applicant’s state of health.
2. The Court’s assessment
(a) General principles
The Court reiterates that Article 5
§ 4 of the
Convention proclaims the right to a speedy judicial decision concerning the
lawfulness of detention and ordering its termination if it proves unlawful (see
Baranowski v. Poland [GC],
no. 28358/95, ECHR 2000). There is a special need for a swift decision
determining the lawfulness of detention in cases where a
trial is pending, because the defendant should benefit fully from the principle
of the presumption of innocence (see Iłowiecki
v. Poland, no. 27504/95, § 76, 4 October 2001).
Article 5 § 4 does not compel the Contracting States
to set up a second level of jurisdiction for the examination of the lawfulness
of detention. However, where domestic law provides for a system of appeal, the
appellate body must also comply with the requirements of Article 5
§ 4, including the
speediness of the review by the appellate body of a detention order imposed by
the lower court (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007). At the
same time, the standard of “speediness” is less stringent when it comes to the
proceedings before the court of appeal. The Court reiterates in this connection
that the right of judicial review guaranteed by Article 5 § 4 is primarily
intended to avoid arbitrary deprivation of liberty. Where detention is
authorised by a court, subsequent proceedings are not so much concerned with
arbitrariness, but provide additional guarantees aimed primarily at an
evaluation of the appropriateness of continuing the detention. Therefore, the
Court would be less concerned with the speediness of the proceedings before the
court of appeal, if the detention order under review was imposed by a court and
on condition that the procedure followed by that court had a judicial character
and afforded to the detainee the appropriate procedural guarantees (ibid.).
(b) Application of the principles to the present case
The relevant detention order was issued on 27
November 2003. The Court observes that the applicant’s preliminary appeal dated
28 November 2003 was received by the District Court on 2 December 2003;
the full statement of appeal was lodged by a lawyer on 4 December 2003. The
appeal was examined and dismissed on 26 February 2004. Therefore, the appeal
proceedings took two months and twenty-five days.
First, the Court observes that the applicant and
then her lawyer lodged appeals, as required under Russian law, with the first-instance
court to enable it to inform the other party/parties to the proceedings (see
paragraphs 11 and 13 above). It is true that, having lodged on 10 December
2003 a request to be brought to the appeal hearing, the applicant withdrew this
request on 5 January 2004. However, that withdrawal was due to the
authorities’ decision to transfer her to an institution in another town for a psychiatric
examination (see paragraphs 20-21 above). Overall, the Court considers that the
defence in the present case should not be held responsible for any significant
delay.
On the other hand, the Court reiterates that it
is incumbent on the respondent State to organise its legal system in such a way
which allows for the speedy examination of detention-related issues. The fact
that part of the period in question fell on public holidays cannot in itself
serve as a valid reason for a delay such as in the present case (see Abidov v. Russia, no. 52805/10, § 61, 12 June 2012).
While the Court accepts that proper review of
detention in the present case could have required collection of additional
observations and documents relating to the applicant’s medical condition or
legal assistance at first instance, the Court is not satisfied that the appeal
proceedings in the present case were completed speedily, in particular taking
into account the unjustified delays after 23 December 2003 (see paragraph 17 above).
Lastly, it is noted that pending appeal against
the initial detention order, on 25 December 2003 the District Court examined
and dismissed the lawyer’s application for the applicant’s release. However,
the availability of such recourse did not absolve the national authorities from
their obligation to decide “speedily” on the validity of the detention order of
27 November 2003 (see Starokadomskiy v. Russia, no. 42239/02, § 85, 31
July 2008).
In view of the above considerations, the Court
concludes that there has been a violation of Article 5 § 4 of the Convention on
account of the length of the appeal proceedings in relation to the detention
order of 27 November 2003.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION IN RELATION TO THE ADMINISTRATIVE OFFENCE PROCEEDINGS AGAINST THE
APPLICANT
The applicant complained that her detention from
7 to 14 June 2005 had been unlawful, in breach of 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;...”
Admissibility
The applicant argued in substance that her
detention following her conviction under the judgment of 7 June 2005 had been
arbitrary since there had been no reason to prosecute her under Article 19.3 of
the Code of Administrative Offences, which, unlike Article 20.2 of the same
Code, allowed detention as a penalty.
The Government argued that the applicant’s
administrative detention resulted from a lawful court order, by which she had
been found guilty of an administrative offence.
The Court reiterates that Article 5 § 1 of the
Convention requires that detention should be “lawful”, including compliance
with “a procedure prescribed by law”. The Convention here essentially refers
back to national law and states the obligation to conform to the substantive
and procedural rules thereof (see Benham v. the United Kingdom, 10 June
1996, § 40, Reports of Judgments and Decisions 1996-III). A period
of detention will in principle be lawful if it is carried out pursuant to a
court order (ibid., § 42).
However, the Convention also requires that any
deprivation of liberty should be consistent with the purpose of Article 5,
namely to protect individuals from arbitrariness (see, among others, Saadi
v. the United Kingdom [GC], no. 13229/03, §§ 67-74, ECHR 2008).
For instance, in Tsirlis and Kouloumpas v.
Greece (judgment of 29 May 1997, §§ 59-63, Reports of Judgments and
Decisions 1997-III) the Court considered that the applicants’ detention
(thirteen and twelve months respectively) following their conviction on charges
of insubordination had had no basis under domestic law and had been arbitrary.
In deciding on the issue of the applicants’ criminal liability, and thus on the
lawfulness of their detention, the military authorities had “blatantly ignored”
the relevant domestic case-law.
In another case (Menesheva v. Russia, no. 59261/00,
§ 99, ECHR 2006-III) the respondent Government accepted that the administrative
offence proceedings against the applicant had been defective both under
domestic law and the Convention. In this case, the higher court quashed the trial
judgment stating that “the judge who convicted the applicant had not examined
the circumstances of the case and had not established whether she was guilty of
any administrative offence”. For its part, the Court considered, under Article
6 of the Convention, that the above corroborated the applicant’s allegations
that there had been no adversarial proceedings as such and that even the
appearances of a trial had been neglected to the extent that she did not get a
chance to find out the purpose of her brief appearance before the trial judge.
Having regard to the above findings, the Court also held, under Article 5 § 1
of the Convention, that while the ensuing period of detention had been carried
out on the order of a judge who was in principle competent to take the decision
in issue, the judge had exercised his authority in manifest opposition to the
procedural guarantees provided for by the Convention. Therefore, the ensuing
detention order was inconsistent with the general protection from arbitrariness
guaranteed by Article 5 of the Convention (ibid., § 92).
Turning to the present case, the Court observes
that on 7 June 2005 the applicant was brought before the judge, who held a
hearing and ruled that she had committed the offence of non-compliance with a
lawful order by a public official, an administrative offence under Article 19.3
of the Code of Administrative Offences, and sentenced her to seven days’
detention. Thus, the applicant was deprived of liberty “after conviction by a ...
court” under Article 5 § 1 (a) of the Convention.
The applicant argued that she had been wrongly
convicted of the offence under Article 19.3 of the CAO, and alleged various
procedural shortcomings in the administrative offence proceedings (see below
under Article 6 of the Convention).
The Court considers that the seven-day detention
was imposed on 7 June 2005 pursuant to the order of a judge who was in
principle competent to take the decision in issue (see, by way of comparison, Ilaşcu
and Others v. Moldova and Russia [GC], no. 48787/99, § 462, ECHR 2004-VII;
and Jorgic v. Germany, no. 74613/01, § 72, ECHR 2007-III). Furthermore,
it cannot be considered on the basis of the available material that the ensuing
period of detention was tainted by any irregularities or arbitrariness, which were
comparably serious as those identified by the Court in the cases of Menesheva
or Tsirlis and Kouloumpas (see also, by way of comparison, Niyazov
v. Russia, no. 27843/11, §§ 175-186, 16 October
2012). Therefore, the applicant’s detention was consistent with the
general protection from arbitrariness guaranteed by Article 5 of the
Convention. The Court’s findings below under Article 6 of the Convention are
without prejudice to the above conclusion.
It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION IN THE ADMINISTRATIVE OFFENCE PROCEEDINGS AGAINST THE APPLICANT
The applicant complained under Article 6 of the
Convention that in the proceedings concerning the alleged administrative
offence she had not had a fair and public hearing. The relevant parts of Article
6 of the Convention read as follows:
“1. In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial
tribunal established by law...
3. Everyone charged with a criminal offence has the
following minimum rights:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the accusation against
him;
(b) to have adequate time and facilities for the
preparation of his defence;
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice so require;...”
A. Admissibility
The Court observes that the applicant was found
guilty of an offence under the Russian Code of Administrative Offences. The
applicant was deprived of her liberty for seven days and was locked up in the
detention centre for the term of her sentence.
While the parties made no specific comments on
the applicability of Article 6 to the administrative proceedings in question,
the Court finds it relevant to reiterate that in order to determine whether an
offence qualifies as “criminal” for the purposes of Article 6 the Convention,
it is necessary to ascertain whether or not the provision defining the offence
belongs, in the legal system of the respondent State, to criminal law; next the
“very nature of the offence” and the degree of severity of the penalty risked must
be considered (see Menesheva, cited above, § 95). Loss of liberty
imposed as punishment for an offence belongs in general to the criminal sphere,
unless by its nature, duration or manner of execution it is not appreciably
detrimental (see Engel and Others
v. the Netherlands, 8 June 1976, §§ 82-83, Series A no. 22, and
Ezeh and Connors v. the United
Kingdom [GC], nos. 39665/98 and 40086/98, §§ 69-130, ECHR 2003-X).
The applicant was convicted of the offence,
which was punishable by detention, the purpose of the sanction being purely
punitive. This offence should be classified as “criminal” for the purposes of
the Convention. It follows that Article 6 applies (see also Menesheva, cited
above, §§ 94-98).
The Court also considers that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. No other ground for declaring it inadmissible has been
established. Thus, it should be declared admissible.
B. Merits
1. The parties’ submissions
The applicant alleged that she had not been
informed about the nature and cause of the accusation against her; had not been
given copies of the material in the administrative file; that the hearing on 7
June 2005 was not public; and that she had no legal assistance in the appeal
proceedings and could not properly prepare her appeal against the order of 7
June 2005.
The Government submitted that the applicant’s
administrative case was lawfully examined by a justice of the peace; the judge
had granted her request to have access to the administrative file; the court
proceedings had been held in public and were fair and adversarial. The
applicant had been informed of the date of the appeal hearing; had not
specified the name and contact details of a lawyer to be informed. In any
event, the Code of Administrative Offences did not require a judge to ensure
the presence of a lawyer in an administrative case.
2. The Court’s assessment
The Court will examine whether the “public
hearing” requirement was complied with in the present case, before turning to
the applicant’s specific allegations relating to the fairness of the
administrative offence proceedings against her.
(a) Public hearing
The Court reiterates that the public character
of court hearings constitutes a fundamental principle enshrined in Article 6 §
1 (see Galstyan v. Armenia, no. 26986/03, § 80, 15 November 2007). The
accused’s right to a public hearing is not only an
additional guarantee that an endeavour will be made to establish the truth but
also helps to ensure that he is satisfied that his case is being determined by
a tribunal whose independence and impartiality he may verify. The public
character of proceedings before judicial bodies protects litigants against the
administration of justice in secret without public scrutiny; it is also one of
the means whereby confidence in the courts, superior and inferior, can be
maintained. By rendering the administration of justice visible, publicity
contributes to the achievement of the aim of Article 6 § 1, namely, a fair
trial (ibid.).
The applicant alleged that her trial after
court opening hours had been de facto closed to the public. Without
contesting the factual assertions made by the applicant, the Government stated
that the trial had been public.
The Court notes that the Code of Administrative
Offences provided for a public hearing in administrative cases (see paragraph 59 above). It does not follow from the text of the first-instance judgment that the
hearing was public. The Court has taken note of the document submitted by the
applicant, which states that the court premises had to be vacated by 6 p.m.
(see paragraph 37 above). In the absence of the Government’s argument or
evidence to the contrary, the Court accepts that the applicant was taken to the
court and that the trial started after court opening hours, probably between 9
p.m. and 10 p.m. In view of the above, the Court considers that the
applicant’s trial was not held in public.
The Court considers that the right to a public
hearing would be illusory if a Contracting State’s legal system allowed court
hearings which were public in form but were not actually accessible to the
public, including because of the time and venue of the hearing (see Galstyan,
cited above, § 81). The Government have not put forward, and the Court
does not find, any valid reasons for dispensing with a public hearing in the
applicant’s administrative case. Nor did the respondent Government specify
whether the appeal hearing in the present case was public and whether it could
thus have remedied the alleged violation at first instance.
The Court concludes that in the circumstances
of the present case there has been a violation of Article 6 § 1 of the
Convention as far as the applicant’s right to a public hearing is concerned.
(b) Fair hearing
The Court reiterates that the main thrust of
the applicant’s complaint under Article 6 of the Convention relates to the
requirements concerning notification of the accused of the charges against her
and adequate time and facilities to prepare a defence.
(i) General principles
The Court reiterates that Article 6 of the Convention guarantees the right to a fair hearing, and
the Court’s task is to ascertain whether the proceedings as a whole, including
the way in which evidence was obtained and heard, were fair (see Bykov
v. Russia [GC], no. 4378/02, § 88, 10 March 2009). Regard must be had
to whether the rights of the defence were respected. It must be examined
in particular whether the applicant was given the opportunity of challenging
the evidence and of opposing its use (see Bykov, cited above, § 90). It
is a fundamental aspect of the right to a fair trial that criminal proceedings
should be adversarial and that there should be equality of arms between the
prosecution and defence (see Rowe and Davis v. the United Kingdom [GC],
no. 28901/95, § 60, ECHR 2000-II).
The Court also reiterates that the requirements
of Article 6 § 3 are to be seen as particular aspects of the right to a fair
trial guaranteed by Article 6 § 1 (see Sakhnovskiy v. Russia [GC],
no. 21272/03, § 94, 2 November 2010). Under
paragraph 3 (a) of Article 6 of the Convention, any person charged with a
criminal offence has the right to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the accusation against
him (see Hermi v. Italy [GC], no. 18114/02, § 68, ECHR 2006-XII). Article
6 § 3 (b) guarantees the accused “adequate time and facilities for the
preparation of his defence” and therefore implies that the substantive defence
activity on his behalf may comprise everything which is “necessary” to prepare
the main trial. The accused must have the opportunity to organise his defence
in an appropriate way and without restriction as to the possibility to put all
relevant defence arguments before the trial court and thus to influence the
outcome of the proceedings. Furthermore, the facilities which everyone charged
with a criminal offence should enjoy include the opportunity to acquaint
himself for the purposes of preparing his defence with the results of
investigations carried out throughout the proceedings (see Moiseyev
v. Russia, no. 62936/00, § 220, 9 October 2008,
and Galstyan,
cited above, § 84). The issue of adequacy of time and facilities
afforded to an accused must be assessed in the light of the circumstances of each
particular case.
(ii) Application of the principles in the present case
The applicant argued that she had not been
properly informed of the charges against her and that she had not been able to
receive copies of the documents in the administrative offence file. The
Government claimed that the applicant’s case was not a complex one, and that
the period of the trial had been sufficient, taking into account that she had
not sought legal assistance.
The Court observes that the pre-trial procedure
in the applicant’s case lasted from 10 a.m. to 7 p.m. The
administrative offence record, which was compiled and signed by the applicant
during this period of time, indicates that she had committed the offence under
Article 19.3 of the CAO because she had held an unlawful demonstration. In the
ensuing court proceedings, on the same evening, the first-instance court
dismissed the applicant’s request for an adjournment and found her liable for
the offence under Article 19.3 of the CAO.
The applicant’s case was examined in an
expedited procedure under the CAO: in cases concerning an administrative charge
for an offence punishable by administrative detention, the police were to transmit
the administrative offence file to a court immediately after having compiled
it, and the court was to examine the case on the same day or within forty-eight
hours of the defendant’s arrest (see paragraphs 57 and 58 above). The Court reiterates, however, that recourse to that procedure when a “criminal charge”
must be determined is not in itself contrary to Article 6 of the
Convention as long as the procedure provides the necessary safeguards and
guarantees (see Borisova v. Bulgaria, no. 56891/00, § 40, 21 December
2006).
Turning to the question of procedural
guarantees, the Court notes that there was an oral hearing at which the
applicant and her lay defenders (co-participants in the demonstration)
participated. The justice of the peace heard representations from the
applicant. A police officer was interviewed, apparently, as a witness. At the
same time, it is noted that the CAO did not require in the circumstances the
mandatory participation of a public prosecutor, who would present the case
against the defendant before a judge (see paragraph 60 above). The police were
in charge of compiling the administrative offence file before transmitting it
to a court (see paragraph 57 above). It appears that the accusation against the
applicant was both presented and examined by the justice of the peace.
In view of the above considerations, the Court
concludes that there was no prosecuting authority, strictly speaking, to
articulate the charges against the defendant at the trial in the proceedings
before the first-instance judge. In describing the circumstances of the offence
the court stated in its judgment that the applicant had failed to end an
unlawful demonstration and to comply with a lawful order by police officers (to
show an identity document and to follow the police to the police station). In
such circumstances, even accepting that the applicant was promptly informed of
the legal classification of the “accusation” against her under Article 19.3 of
the CAO, the Court is not satisfied that she was afforded an adequate
opportunity to prepare her defence on account of the uncertainty as to the
exact factual circumstances of the actions or omissions held against her. Thus,
the Court considers that the applicant was not properly informed of “the nature
and cause of the accusation” against her and was not afforded “adequate time
and facilities” for the preparation of her defence.
The above situation was aggravated by the fact
that the appeal court reviewed the description of the circumstances, stating
that the applicant had held an unlawful demonstration and held a banner
containing a negative assessment of the professional activity of the Prosecutor
General, the President of the Supreme Court and the Minister of Justice. It was
also noted in the appeal decision that the applicant had refused to comply with
lawful orders to end the violation of the public order and threatened the
police officers with prosecution, thereby committing the offence of resisting a
lawful order by the police. It has not been argued, and the Court does not
consider, that the appeal proceedings in the present case rectified the alleged
shortcomings identified in the first-instance trial.
Accordingly, while it should have been clear to
the applicant from the outset that she was prosecuted under Article 19.3 of the
CAO, the circumstances of the case disclose that she was not afforded an
adequate opportunity to put forward a viable defence.
The foregoing considerations are sufficient for
the Court in present case to conclude that there has been a violation of Article
6 §§ 1 and 3 of the Convention.
V. ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF
THE CONVENTION
The applicant complained that the dispersal of
the demonstration by the police and her arrest and prosecution for an
administrative offence had been in breach of Articles 10 and 11 of the
Convention.
Articles 10 and 11 of the Convention read as
follows:
Article 10 (freedom
of expression)
“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 and regardless
of frontiers. This Article shall not prevent states from requiring the
licensing of broadcasting, television or cinema enterprises.
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, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of
the judiciary.”
Article 11 (freedom
of assembly and association)
“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.”
A. Submissions by the parties
1. The Government
The respondent Government argued
that the circumstances of the case disclosed no interference with the applicant’s
rights under Articles 10 and 11 of the Convention because she had been
prosecuted for non-compliance with a lawful order by a public official (to show
an identity document) rather than for breaching regulations concerning public gatherings.
At the same time, by way of addition to the
findings made in the domestic decisions, the Government submitted that the
applicant had breached sections 7 and 8 of the Public Gatherings Act which lay
down the rules for notifying the authorities of a public event. Namely, by making
such notification by telegram and omitting to provide contact details, the
applicant had deprived the competent authority of the opportunity to suggest
another venue and/or time for the planned events, including the one which was
held on 7 June 2005. The applicant was informed in writing that she should notify
the district authority in Moscow in a proper fashion. No such notification was
made in relation to the demonstration held on 7 June 2005.
The Government also argued that,
even assuming there had been interference with the applicant’s rights, such
interference was prescribed by sections 7 and 8 of the Public Gatherings Act;
it aimed at ensuring public safety, preventing disorder and protecting the rights
of others. The interference had been necessary since the applicant had made
unsubstantiated statements accusing judges of criminal offences, attacking
their reputation and honour, and thus undermining the authority of the
judiciary. The dispersal of the demonstration had also been justified, since
the applicant and others had acted in violation of the Public Gatherings Act. In
any event, the Public Gatherings Act expressly prohibited public events in the
immediate vicinity of court buildings, including the buildings of the Supreme
Court of Russia.
2. The applicant
The applicant argued that the dispersal of the demonstration
and the ensuing administrative offence proceedings (arrest and detention)
constituted an interference with her rights under Articles 10 and 11 of the
Convention. Restating her arguments under Articles 5 and 6, she concluded that
there had also been a violation of Articles 10 and 11 of the Convention in the
present case.
B. The Court’s assessment
1. Admissibility
The Court notes that this part of the
application 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.
2. Merits
. The
Court considers that it is appropriate to examine this case under Article 11 of
the Convention, in the light of Article 10.
(a) Interference
The Court notes the Government’s argument that
the reason for the applicant’s arrest (and, by implication, the dispersal of
the demonstration) was the alleged refusal to comply with orders given by the
police (Article 19.3 of the CAO).
At the same time, it is noted that the administrative offence record indicates
that the applicant committed the offence under Article 19.3 of the CAO because
she held a non-authorised demonstration. By a court decision the applicant was
found liable for “non-compliance with a lawful order by a police officer”. In
describing the circumstances of the offence the court stated that the applicant
had failed to end an unlawful demonstration and to comply with a lawful order
by police officers (to show an identity document and to follow the police to
the police station).
Having regard to the context of the present
case, the dispersal of the demonstration, the findings made by the domestic
authorities and the penalty imposed on the applicant, the Court considers that
the relevant facts disclose an interference which was sufficiently linked to
the applicant’s exercise of her right to freedom of peaceful assembly under
Article 11 of the Convention, considered in conjunction with her freedom of
expression under Article 10 of the Convention.
(b) Justification of the interference
The Court should assess whether the above “interference”
was justified in the present case. The parties disagreed as to whether the
interference was prescribed by law and served a legitimate aim. However, the
Court decides to dispense with ruling on the issue of lawfulness because, in
any event, the interference fell short of being necessary in a democratic
society, for the reasons set out below (see, for a similar approach, Christian
Democratic People’s Party v. Moldova, no. 28793/02, § 53, ECHR 2006-II).
. The
Court reiterates that the expression “necessary in a democratic society” in
Article 10 § 2 or 11 § 2 of the Convention implies that the interference
corresponds to a “pressing social need” and, in particular, that it is
proportionate to the legitimate aim pursued. The Court also notes at this
juncture that, whilst the adjective “necessary”, within the meaning of Article
10 § 2 or 11 § 2 is not synonymous with “indispensable”, it remains for the
national authorities to make the initial assessment of the reality of the
pressing social need implied by the notion of “necessity” in this context (see Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24). When the Court
carries out its scrutiny, its task is not to substitute its own view for that
of the relevant national authorities but rather to review under Article 10 or
11 the decisions that they delivered. This
does not mean that it has to confine itself to ascertaining whether the
respondent State exercised its discretion reasonably, carefully and in good
faith; it must look at the interference complained of in the light of the case
as a whole and determine, after having established that it pursued a
“legitimate aim”, whether it was proportionate to that aim and whether the
reasons adduced by the national authorities to justify it are “relevant and
sufficient”. In so doing, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the principles
embodied in Article 11 and, moreover, that
they based their decisions on an acceptable assessment of the relevant facts
(see United Communist Party of Turkey and
Others v. Turkey, 30 January 1998, § 47, Reports of Judgments and Decisions
1998-I).
In fact, both the findings of the national
courts and the Government’s observations before the Court contain contradictory
submissions as to the nature of the actions held against the applicant in the
administrative offence proceedings (see paragraphs 35, 39, 42 and 123-125 above). The arrest record referred to the alleged refusal to comply
with orders given by the police (Article 19.3 of the CAO) whereas the
administrative offence record indicated that the applicant had committed the
offence under Article 19.3 of the CAO because she held a non-authorised
demonstration. As already mentioned, the court described the circumstances of
the offence stating that the applicant had failed to end an unlawful
demonstration and to comply with a lawful order by police officers (to show an
identity document and to follow the police to the police station). As stated
above in the context of Article 6 of the Convention, for its part, the appeal
court found it pertinent to amend the description of the circumstances, stating
that the applicant had held an unlawful demonstration and held a banner
containing a very negative assessment of the professional activity of
high-ranking public officials. It was also noted in the appeal decision that the
applicant had refused to comply with lawful orders to end the violation of the
public order and threatened police officers with prosecution, thereby
committing the offence of resisting a lawful order by the police.
It follows that the applicant was
arrested and the demonstration was dispersed because the applicant had refused (i)
to stop this “non-authorised” demonstration, and (ii) to show her identity
document and to follow the police to the police station.
As to the first ground, it is noted that the
domestic decisions do not contain any clear findings that, as suggested by the
respondent Government before the Court, the applicant had breached the
requirements of the Public Gatherings Act, for instance on account of the
notification by telegram, her alleged omission to provide sufficient contact
details, or whether the demonstration had indeed taken place in the area
expressly prohibited by section 8 of the Act, that is, in the “immediate vicinity”
of “court buildings”. The appeal court merely mentioned this provision, without
drawing any conclusions relating to the circumstance of the applicant’s case
under Article 19.3 of the CAO (see paragraph 42 above). Nor do the domestic
decisions contain any findings that the above alleged breaches justified the dispersal
of the demonstration. While these issues were relevant, the courts did not take
any clear stance on them in the administrative offence proceedings.
Therefore, the Government’s arguments
concerning the alleged non-compliance with the notification requirements of the
Public Gatherings Act cannot weigh in the Court’s proportionality analysis in
the present case (see Bukta and Others v. Hungary, no. 25691/04, § 34,
ECHR 2007-III, and Fáber v. Hungary, no. 40721/08, § 49, 24 July 2012). In any event, the
Court reiterates that there may be circumstances in which the formal
unlawfulness of a peaceful public assembly is not sufficient to justify its
dispersal (see Bukta and Others, cited above, §§
35-36, and Oya Ataman v. Turkey,
no. 74552/01, §§ 38-42, ECHR 2006-XIII). The Court also reiterates that
the Contracting States can impose limitations on holding a demonstration in a
given place for public security reasons (see Disk and Kesk v. Turkey,
no. 38676/08, § 29, 27 November 2012). Nevertheless,
although a demonstration in a public place may cause some disruption to
ordinary life, including disruption of traffic, it is important for the public
authorities to show a certain degree of tolerance towards peaceful gatherings
if the freedom of assembly guaranteed by Article 11 of the Convention is not to
be deprived of its substance (ibid.).
In the present case, the demonstration involved only three persons. For the Court, it is difficult to
conceive that such an event could have generated the gathering of a significant
crowd warranting specific (for instance, security) measures on the side of the
authorities. Also, it is not without interest that the proceedings
against the other two participants in the demonstration were discontinued,
inter alia, because no related violations were established.
Furthermore, the Court cannot deal with the
Government’s argument suggesting that the demonstration had to be dispersed in
order to put an end to unsubstantiated accusations in respect of judges and in
order to protect their reputation and honour. This justification was never
mentioned in the domestic proceedings and did not justify the interference with
the applicant’s rights.
As
to the second ground mentioned in paragraph 134 above, even accepting that
the applicant had indeed failed to comply with a lawful order concerning her
identity document, the national authorities themselves linked, in practice, the
administrative case against the applicant to her exercise of her freedom of
assembly. In that context, it had to be convincingly shown that the immediate
dispersal of the peaceful demonstration (which is presumed to be lawful for the
reasons stated above) and the applicant’s arrest and prosecution were
necessary.
It is noted in that connection that under the
CAO administrative arrest required “exceptional circumstances” relating to the need
for a proper and expedient examination of the administrative case (see
paragraph 56 above). The domestic courts did not assess this issue in any noticeable
way. Nor has it been convincingly shown before this Court that the applicant’s
arrest and ensuing detention for several hours were properly justified and
constituted a proportionate reaction on the part of the authorities.
The Court finds it regrettable that the
national courts in the administrative offence procedure in the present case did
not assess the applicant’s situation, including the penalty to be imposed,
taking into account the relevant principles under Articles 10 and 11 of
the Convention (see, for comparison, Alim v. Russia, no. 39417/07,
§ 95, 27 September 2011). It cannot be said that the national authorities
adduced reasons which could be accepted as “relevant and
sufficient”.
In view of the above considerations and bearing
in mind the Court’s above findings under Article 6 of the Convention, the Court
concludes that the interference with the applicant’s right to freedom of
assembly, taken together with her right to freedom of expression, in the
present case was disproportionate.
There has therefore been a violation of Article
11 of the Convention, assessed in the light of its Article 10.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 3
of the Convention about the allegedly appalling conditions of her detention from
7 to 14 June 2005 (see paragraph 46 above). The Court notes that the complaint
was first raised in substance before it on 22 December 2005. Assuming, in the
applicant’s favour, that she had no specific remedies to exhaust, the Court
concludes that this complaint has been introduced out of time and must be
rejected in accordance with Article 35 §§ 1 and 4 of the
Convention (see Norkin v. Russia (dec.), no. 21056/11, §§ 15-25, 5
February 2013).
Lastly, the Court notes that the applicant made
a number of others complaints and referred to Articles 3, 5, 6 and 13 of the
Convention, as well as Article 1 of Protocol No. 1. The Court has
examined the above grievances as submitted by the applicant. However, in the
light of all the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that they do not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols. It follows that this part of the application
is manifestly ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
VII. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
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.”
The applicant did not submit, within the
time-limit set by the Court, a claim for just satisfaction. Accordingly, the
Court considers that there is no call to award her any sum on that account.
FOR THESE REASONS, THE COURT
1. Declares unanimously admissible the
complaints concerning notification of the reasons for arrest on 27 November
2003, speediness of review in respect of the detention order of 27 November
2003, fairness of the administrative offence proceedings, and the rights to
freedom of assembly and freedom of expression;
2. Declares by a majority the remainder of
the application inadmissible;
3. Holds unanimously that there has been a
violation of Article 5 § 2 of the Convention;
4. Holds unanimously that there has been a
violation of Article 5 § 4 of the Convention;
5. Holds unanimously that there has been a
violation of Article 6 §§ 1 and 3 of the Convention on account of the lack of a
public hearing and in relation to the applicant’s right to be informed of the
nature and cause of the accusation against her, and the right to have adequate
time and facilities for the preparation of her defence;
6. Holds unanimously that there has been a
violation of Article 11 of the Convention, assessed in the light of its Article
10.
Done in English, and notified in writing on 30 May 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
André
Wampach Isabelle
Berro-Lefèvre
Deputy Registrar President
