I correctly predicted that there was a violation of human rights in BORETS-PERVAK v. RUSSIA and 1 other application.

Information

  • Judgment date: 2020-10-06
  • Communication date: 2016-09-23
  • Application number(s): 42276/15;54278/15
  • Country:   RUS
  • Relevant ECHR article(s): 5, 5-1-c, 6, 6-1, 6-3-c, 6-3-d, 11, 11-1, 11-2
  • Conclusion:
    Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
    Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
    Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings
    Article 6-1 - Impartial tribunal)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.57669
  • Prediction: Violation

  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

Applications nos.
42276/15 and 54278/15Igor Yuryevich BORETS-PERVAK against Russiaand Yekaterina Anatolyevna MALDON against Russialodged on 5 August 2015 and 10 October 2015 respectively (see the Appendix) The applicants are two Russian nationals.
They are represented before the Court by Ms D. Pigoleva and Mr N. Zboroshenko, lawyers practising in Moscow.
A.
The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows.
On 27 October 2014 the Basmannyy District Court of Moscow extended the detention of the Ukrainian woman pilot Nadezhda Savchenko.
On 26 January 2015 the President of the PACE stated that Russia should free Nadezhda Savchenko.
As a response to this statement, several public gatherings took place in support of the pilot in Washington, New York, Kyiv, Jerusalem, Tel Aviv, St Petersburg and Moscow.
On the evening of 26 January 2015 around eleven people gathered on Lubyanskiy Proyezd in Moscow; the gathering had not been duly authorised by the city authorities.
At first the participants stood silently holding homemade posters “No to war”, “Freedom for Nadezhda Savchenko!” A while later they started to chant “Freedom for Nadezhda Savchenko!” At different time the applicants were arrested and taken to police stations.
Details as regards the administrative proceedings against each applicant are stated in the Appendix.
B.
Relevant domestic law and practice 1.
The relevant provisions of the Code of Administrative Offences of 30 December 2001, as in force at the material time, read as follows: Article 19.3 Refusal to obey a lawful order of a police officer ... “1.
Refusal to obey a lawful order or demand of a police officer ... in connection with the performance of their official duties related to maintaining public order and security, or impeding the performance by them of their official duties shall be punishable by a fine of between 500 Russian roubles (RUB) and RUB 1,000 or administrative detention of up to fifteen days ...” Article 20.2 Breaches of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets “5.
Breaches by participant in a public event of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets ... shall be punishable by an administrative fine of between RUB 10,000 and RUB 20,000 or compulsory community service of up to 40 hours.” Article 25.1 Person against whom administrative proceedings have been instituted “1.
Any person against whom administrative proceedings have been instituted is entitled to study the case-file material, to make submissions, to adduce evidence, to lodge motions and challenges, and to have legal assistance ...” Article 27.2 Escorting of individuals “1.
The escorting or the transfer by force of an individual ... for the purpose of drawing up an administrative offence report, if this cannot be done at the place where the offence was discovered and if the drawing up of a report is mandatory, shall be carried out: (1) by the police ... ... 2.
The escort operation shall be carried out as quickly as possible.
3.
The escort operation shall be recorded in an escort operation report, an administrative offence report or an administrative detention report.
The escorted person shall be given a copy of the escort operation report if he or she so requests.” Article 27.3 Administrative detention “1.
Administrative detention or short-term restriction of an individual’s liberty may be applied in exceptional cases if this is necessary for the prompt and proper examination of the alleged administrative offence or to secure the enforcement of any penalty imposed by a judgment concerning an administrative offence ... 5.
The detained person shall have his rights and obligations under this Code explained to him, and the corresponding entry shall be made in the administrative arrest report.” Article 27.4 Administrative detention report “1.
Administrative detention shall be recorded in a report ... 2.
...
If he or she so requests, the arrested person shall be given a copy of the administrative detention report.” Article 27.5 Duration of administrative detention “1.
The duration of the administrative detention shall not exceed three hours, except in the cases set out in paragraphs 2 and 3 of this Article.
2.
Any person subject to administrative proceedings concerning offences involving unlawful crossing of the Russian border ... may be subject to administrative detention for up to 48 hours.
3.
Any person subject to administrative proceedings concerning offences punishable, among other administrative sanctions, by administrative arrest may be subject to administrative detention for up to 48 hours.
4.
The term of the administrative detention is calculated from the time when [a person] being escorted in accordance with Article 27.2 is taken [to the police station] ...” 2.
The Constitutional Court’s case-law on equality of arms and adversarial procedure in administrative proceedings reads as follows: Decision No.
630-O of 23 April 2013 by the Russian Constitutional Court “Articles 118 § 2 and 123 § 3 of the Russian Constitution provide that the principles of equality of arms and adversarial procedure should apply in court proceedings, including those under the Code of Administrative Offences of Russia.
These constitutional provisions should be interpreted as guaranteeing the application of the principles of equality of arms and adversarial procedure only to cases that are in the courts’ jurisdiction.
Meanwhile, administrative offence cases can be examined not only by the courts, but also by the authorities and officials (Articles 22.1 and 22.2 of the CAO).
Those charged with an administrative offence by an official or an authority may challenge their decisions in the courts (Article 30.1 § 1 of the CAO).
Such review proceedings should provide for equality of arms and adversarial proceedings ...” COMPLAINTS The applicants’ complaints are set out in the Appendix.
The applicants complain under Article 11 of the Convention about the allegedly unlawful and disproportionate measures taken against them as peaceful protesters.
One of the applicants also alleges a violation of Article 10 of the Convention in this respect.
Both applicants also complain about their arrest, alleging that it was arbitrary.
One of them also claims that his detention at the police station after the arrest was unlawful, in violation of Article 5 § 1 of the Convention.
The applicants complain under Article 6 § 1 of the Convention that the proceedings in which they were convicted of the administrative offences fell short of the guarantees of a fair hearing.
They point out, in particular, that there was no prosecuting authority; that role was allegedly performed by the judge.
One applicant also alleges that he was not given adequate time to retain a lawyer before the first-instance hearing in the proceedings under Article 19.3 § 1 of the CAO.
Both applicants complain under Article 6 § 3 (d) of the Convention that the courts refused to call prosecution witnesses, namely the police officers who had arrested them at the gathering.
COMMON QUESTION 1.
As regards each applicant, has there been an interference with his or her freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention?
2.
If so, was that interference prescribed by law and necessary in terms of Article 11 § 2 of the Convention, in respect of each applicant?
In particular, given the spontaneous character of the assembly and impossibility to give a notice within the time-limit prescribed by law, was the interference proportionate in the circumstances of the present case (see Bukta and Others, v. Hungary, no.
25691/04, §§ 35-37, ECHR 2007‐III, and Éva Molnár v. Hungary, no.
10346/05, §§ 36-38, 7 October 2008)?
3.
Was each applicant’s arrest on 26 January 2015 compatible with the requirements of Article 5 § 1 of the Convention?
In particular: (a) What were the legal grounds for the applicant’s arrest during the gathering on 26 January 2015?
(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention?
4.
As regards each applicant’s trial, did they have a fair hearing by an independent and impartial tribunal in the administrative proceedings against them, in accordance with Article 6 § 1 of the Convention, given the absence of any prosecuting authority, whose role was allegedly performed by the judge?
5.
As regards each applicant, were they able to examine witnesses against them, in particular, the police officers who had arrested them at the public gathering, as required by Article 6 § 3 (d) of the Convention?
CASE SPECIFIC

Judgment

THIRD SECTION

CASE OF BORETS-PERVAK AND MALDON v. RUSSIA
(Applications nos. 42276/15 and 54278/15)

JUDGMENT

STRASBOURG
6 October 2020

This judgment is final but it may be subject to editorial revision. In the case of Borets-Pervak and Maldon v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helen Keller, President,María Elósegui,Ana Maria Guerra Martins, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications (nos. 42276/15 and 54278/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, the first applicant Mr Igor Yuryevich Borets‐Pervak and the second applicant Ms Yekaterina Anatolyevna Maldon (“the applicants”), on 5 August 2015 and 10 October 2015 respectively;
the decision to give notice of the applications to the Russian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 15 September 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. On 26 January 2015 the applicants participated in a spontaneous gathering on Lubyanskiy Proyezd in Moscow to demand the release of captured Ukrainian pilot Nadezhda Savchenko. They were arrested during the gathering and convicted of administrative offences. THE FACTS
2. The applicants, whose details are set out in the Appendix, were represented respectively by Ms D.S. Pigoleva and Mr N.S Zboroshenko, lawyers practising in Moscow. 3. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 27 October 2014 the Basmannyy District Court of Moscow extended the detention of Nadezhda Savchenko, a Ukrainian female pilot. 6. On 26 January 2015 the President of the PACE stated that Russia should free Nadezhda Savchenko. In response to this statement, several public gatherings took place in support of the pilot in Washington, New York, Kyiv, Jerusalem, Tel Aviv, St Petersburg and Moscow. 7. On the evening of 26 January 2015 eleven people gathered on Lubyanskiy Proyezd in Moscow for a stationary demonstration; the gathering had not been notified to the city authorities. At first the participants stood silently holding handwritten posters “No to war”, “Freedom for Nadezhda Savchenko!” A while later they started to chant “Freedom for Nadezhda Savchenko!” At different times the applicants were arrested and taken to police stations. 8. Details as regards the administrative proceedings against each applicant are stated in the Appendix. RELEVANT LEGAL FRAMEWORK
9. Article 20.2 § 5 of the Code of Administrative Offences (CAO) provides that violation by a participant in a public event of the established procedure for conducting a public event is punishable with a fine of 10,000 to 20,000 roubles (RUB) or up to forty hours of community work. 10. For a summary of other relevant domestic provisions see Navalnyy v. Russia [GC] (nos. 29580/12 and 4 others, §§ 46-47, 15 November 2018); Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 223 and 226, 7 February 2017); and Korneyeva v. Russia (no. 72051/17, §§ 22-26, 8 October 2019). 11. The domestic legal provisions governing administrative transfer (escorting) and detention are also set out in the case of Butkevich v. Russia (see no. 5865/07, §§ 33-36, 13 February 2018). THE LAW
12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 13. The applicants complained of disproportionate measures taken against them as participants of a peaceful public assembly, namely their arrest followed by their transfer to the police station and conviction for an administrative offence. They relied on Articles 10 and 11 of the Convention. However, this falls to be examined under Article 11, which reads as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
14. The Government submitted that the gathering in the present case had not been a spontaneous one because the activists could have held it later, after proper notification of their demonstration. They pointed out that the applicants in the present case had been convicted under Articles 19.3 § 1 (failure to comply with a lawful order of an official in connection with the exercise of his duties) and 20.2 § 5 (violation by a participant of the procedure for a public event) of the Code of Administrative Offences (“the CAO”) with reference to the failure to notify the authorities of the public gathering in accordance with the procedure prescribed by sections 5 and 7 of the Public Events Act. 15. It follows that the applicants were arrested, transferred to the police station and charged with administrative offences for the sole reason that their gathering as such had not been authorised. 16. The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and proportionality of interference with it (see Oya Ataman v. Turkey, no. 74552/01, ECHR 2006‐XIV, and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009). 17. In the leading cases (see, for example, Frumkin v. Russia, no. 74568/12, 5 January 2016; Navalnyy and Yashin v. Russia, no. 76204/11, 4 December 2014; and Kasparov and Others v. Russia, no. 21613/07, 3 October 2013), the Court already found a violation in respect of issues similar to those in the present case. 18. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the measures applied to the applicants as peaceful participants in the public assembly did not correspond to a pressing social need and were thus not necessary in a democratic society. 19. These complaints are therefore admissible and disclose a breach of Article 11 of the Convention. 20. The applicants submitted other complaints which also raised issues under Articles 5 and 6 of the Convention, given the relevant well‐established case-law of the Court. These complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. 21. Having examined all the material before it, the Court concludes that these remaining complaints also disclose violations of Articles 5 and 6 of the Convention, as indicated in the appended table, in the light of its findings in Vyerentsov v. Ukraine (no. 20372/11, §§ 81-83, 11 April 2013); Karelin v. Russia (no. 926/08, §§ 60-84, 20 September 2016); and Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 486‐92, 7 February 2017). 22. As regards Article 5 § 1, the finding of a violation relates to the arbitrary character of the applicants’ arrests on 26 January 2015. Having reached this conclusion, in the circumstances of this case the Court does not consider it necessary to examine the first applicant’s allegation that his detention on that day exceeded the statutory limit of three hours (see the appended table). 23. As regards Article 6 § 1, the complaints relying on this provision disclose a violation of the impartiality requirement on account of the absence of a prosecuting party (see the appended table). Having reached the conclusion that the administrative proceedings, taken as a whole, were conducted in violation of the right to a fair hearing, the Court considers that it is not necessary to address the remainder of the applicants’ complaints under Article 6 § 3 (c) and (d) of the Convention, set out in the appended table (see Frumkin, cited above, § 168). 24. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
25. The applicants each claimed 20,000 euros (EUR) for non‐pecuniary damage. 26. The Government contested these claims as unsubstantiated and excessive. 27. Having regard to the parties’ submissions and to its case‐law concerning violations of Article 11 in relation to arbitrary arrests at peaceful assemblies, and taking into account the severity of the applicants’ respective sentences, the Court considers it reasonable to award the following amounts, plus any tax that may be chargeable, in respect of non-pecuniary damage: EUR 7,500 to the first applicant and EUR 5,000 to the second applicant. 28. The first applicant also claimed EUR 2,030 for costs and expenses incurred before the domestic courts and the Court and EUR 220 for the translation costs. The second applicant claimed EUR 9,810 for costs and expenses, including legal fees set out in the legal services agreement and the itemised schedule, and postal expenses. 29. The Government contested these claims as excessive, unsubstantiated and having no legal basis. 30. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession to its case‐law and the repetitive nature of the legal issues examined in this case, the Court considers it reasonable to award the following amounts, plus any tax that may be chargeable to the applicants: EUR 1,700 to each applicant (representing EUR 850 in respect costs and expenses incurred in the domestic proceedings plus EUR 850 for representation before the Court). In accordance with the second applicant’s request, her award for costs and expenses is to be paid to the representative’s bank account. 31. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) to the first applicant EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non‐pecuniary damage;
(ii) to the second applicant EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non‐pecuniary damage;
(iii) to each applicant EUR 1,700 (one thousand seven hundred euros) plus any tax that may be chargeable to the applicants, for costs and expenses, payable in the second applicant’s case to her representative;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 6 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Helen KellerDeputy RegistrarPresident

APPENDIX
No. Application
no. and date of introduction
Applicant name
Date of birth
Place of residence
Nationality
Represented by
Charge and penalty
(Russian roubles)
Final domestic decision details
Other complaints under well-established case-law
(i) admissible and disclosing a violation
(ii) not necessary to examine

42276/15
05/08/2015

Igor Yuryevich BORETS-PERVAK
1959
Moscow
Russian

Darya Sergeyevna PIGOLEVA
Article 19.3 § 1 of the CAO
Administrative detention 11 days

Article 20.2 § 5 of the CAO
Administrative fine
RUB 10,000
Appeal decision 06/02/2015 Moscow City Court

Appeal decision 14/04/2015 Moscow City Court
(i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of administrative offence (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 486‐92, 7 February 2017);
Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v. Russia, no. 926/08, 20 September 2016). (ii) Art. 5 § 1 – unlawful detention for more than three hours. Art. 6 § 3 (c) – the first-instance court dismissed the applicant’s motion to provide him with time to retain a lawyer (proceedings under Art. 19.3 of the CAO). Article 6 § 3 (d) – the first instance (proceedings under Art. 20.2) and appeal (proceedings under Art. 19.3) courts refused to call prosecution witnesses, namely the police officers who had arrested the applicant. 54278/15*
10/10/2015

Yekaterina Anatolyevna MALDON
1972
Moscow
Russian

Nikolay Sergeyevich ZBOROSHENKO
Article 20.2 § 5 of the CAO
Administrative fine
RUB 20,000

Appeal decision 20/04/2015 Moscow City Court
(i) Art. 5 § 1 – unlawful deprivation of liberty: arrest and transfer to the police station for the purpose of drawing up a record of administrative offence (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 486‐92, 7 February 2017);
Art. 6 § 1 – lack of impartiality of tribunal: absence of a prosecuting party in the administrative proceedings (see Karelin v. Russia, no. 926/08, 20 September 2016). (ii) Art. 6 § 3 (d) – the appellate court refused to question prosecution witnesses, namely the police officers who had arrested the applicant.