CASE OF NAVALNYY AND YASHIN v. RUSSIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Criminal charge;Fair hearing);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicants were born in 1976 and 1983 respectively and live in Moscow. Both applicants are political activists and opposition leaders. The first applicant is also a well-known anti-corruption campaigner and a popular blogger. The second applicant is a leader of the political movement “Solidarnost”. 6. On 4 December 2011 general elections of the State Duma took place in Russia. 7. On 5 December 2011 the applicants took part in a public demonstration (a meeting) at Chistyye Prudy, Moscow, to protest against the allegedly rigged elections. The demonstration had been duly authorised by the mayor of Moscow. The number of participants at the meeting was estimated between 5,000 and 10,000. During the meeting, conducted by the second applicant, the first applicant addressed the participants with a speech calling for fresh, fair elections and describing United Russia, the election frontrunner, as “a party of crooks and thieves”. 8. After the demonstration the applicants were arrested. The parties disagreed as to the circumstance of their arrest, and their respective submissions are summarised below. 9. The applicants claimed that at the end of the meeting they had headed, with other people, towards the Kuznetskiy Most metro station, where the first applicant had left his car. They were walking along the pavement, leaving the road clear for traffic. Suddenly their way was blocked by the riot police (сотрудники внутренних войск и OMOН). Without any introduction or demand, the police surrounded a group of about one hundred protesters, including the applicants, pressing them against a building. The surrounded group chanted “One for all, and all for one!”. The riot police then began to arrest the protesters. According to the applicants, no one put up any resistance. They obeyed the police and followed them to the police bus. 10. According to the Government, at the end of the meeting the second applicant called on the participants to march down Myasnitskaya Street onto Lubyanskaya Square and then to the office of the Central Electoral Commission. At 8.30. p.m. about sixty people, including the applicants, began walking down Chistoprudnyy Boulevard, Bolshaya Lubyanka Street and Rozhdestvenka Street. They walked along the road, obstructing the traffic and chanting slogans such as “This is our city!” and “Down with the police state!” At the crossroads of Pushechnaya and Rozhdestvenka Streets the police blocked the march and ordered the marchers to stop. They pushed thought the cordon and went on until they were stopped by the police again at 2 Teatralnyy Proyezd. They ignored the repeated demands of the police to stop and thereby prevented the police from carrying out their mission of securing public order. Confronted with this persistent behaviour, the police arrested the applicants. 11. Both applicants were arrested at about 8.45 p.m. and were taken to a police bus. 12. At about 9.40 p.m. the applicants were taken to the Severnoye Izmaylovo District police station, Moscow. At 11.40 p.m. the first applicant was subjected to a body search, which lasted until 12.15 a.m. His personal affairs, including his mobile phone, barrister licence, watch, money, credit cards, driving licence and some items of clothing were seized. The second applicant was searched as well, and his mobile phone, belt, watch, whistle and a badge reading “Against the Party of Crooks and Thieves” were seized. The list of the seized objects was recorded in the search report. The applicants have been unable to retrieve them, although those objects were not attached to the case file. 13. The applicants requested that their lawyers, who had arrived at the police station and had presented their authority, be allowed to see them, but their request was refused. The applicants were not allowed to make a phone call to their families either. 14. Both applicants lodged complaints at the police station alleging that their rights had been violated during their arrest and detention. 15. At about 12.45 a.m. on 6 December 2011 the applicants were transferred from Severnoye Izmaylovo police station to the Vostochnyy District police station, Moscow, where they arrived at about 1.45 a.m. on the same day. They requested to see a lawyer and to make a phone call, but this was refused again. The first applicant lodged a complaint about the refusal. 16. At 2.30 a.m. on the same night, the applicants were transferred to the Kitay-Gorod District police station, where police reports were drawn up stating that the applicants had been escorted to the police station in accordance with Article 27.2 of the Code of Administrative Offences. At 2.40 a.m. further police reports were drawn up in which it was decided to remand the applicants in custody under Article 27.3 of the Code of Administrative Offences. The applicants were charged with an administrative offence for refusing to comply with a lawful order of the police, in breach of Article 19.3 of the Code of Administrative Offences. The charges were based on the identical statements of two police officers, I. and F., who alleged that they had ordered the applicants to follow them to the police bus to give statements on the administrative offence but that the applicants had pushed them away and had therefore been arrested. 17. At the Kitay-Gorod police station the applicants requested permission to see their lawyers and to telephone their families, but their requests were refused. 18. The first applicant remained in custody at the police station until 3 p.m. on 6 December 2011, and the second applicant until 10 a.m. on that day. 19. The applicants claimed that the conditions of detention during their transfer between the police stations and in the cell at the Kitay-Gorod police station were inhuman and degrading. In particular, they claimed that they had spent six hours being driven to different police stations without being given any food or drinking water. At the Kitay-Gorod police station they were placed together in a cell measuring about 6 sq. m with concrete walls, a metal grill, a concrete floor, no windows and no furniture except for two narrow wooden benches. The cell was poorly lit and had no ventilation. There was no sanitary equipment, beds or bedding. The applicants did not receive any food or water until later on 6 December 2011 when they were allowed to receive a parcel from their families containing drinking water and crackers; no other food was allowed in the parcels. 20. The Government submitted that the applicants had spent about one hour in transit to the Vostochnyy District police station and then about forty-five minutes in transit to the Kitay-Gorod police station, which was not long enough to require the provision of meals. According to the Government, the applicants were detained at the Kitay-Gorod police station in an administrative-detention cell measuring 12.3 sq. m equipped with artificial lighting and mandatory ventilation. They claimed that the applicants had been provided with a sleeping place – a wooden bench – and bedding, which they had refused. They provided a photograph of the cell with a metal grill, a close-up photograph of the bench, showing with a measuring tape its width of 47 cm, and another photograph showing the same bench covered with a blanket and with a pillow placed on it. The Government further contended that the cells had to be cleaned and disinfected twice a day and that pest control had to be carried out once every three months, in accordance with the cleaning service agreement between the Ministry of the Interior and a private company. The Government provided a copy of the service agreement in support of that statement. They alleged that the applicants had not complained about the conditions of their detention. According to the Government, the applicants had been offered food at the Kitay-Gorod police station, but had refused to take it. 21. On 6 December 2011 the applicants were brought before the Justice of the Peace to have their charges examined in administrative proceedings. They met their counsels for the first time shortly before the hearing. The case of the second applicant was examined first, and then the case of the first applicant. 22. The administrative case was examined by the acting Justice of the Peace of Circuit no. 370 of the Tverskoy District of Moscow, Ms B. At the beginning of the hearing the second applicant challenged the judge on the grounds that she had previously found him guilty of an administrative offence and sentenced him to five days’ administrative detention. After that conviction the second applicant had lodged numerous complaints about Ms B. and had campaigned against her in his online blogs. The Justice of the Peace dismissed the challenge against her. 23. The second applicant requested leave to call and examine five witnesses, including I. and F., the police officers who had drawn up the arrest reports; K., the on-duty police officer at the Kitay-Gorod police station; Mr B., a fellow activist; and the first applicant. The request was granted in respect of I., F. and B. 24. The second applicant complained of unlawful detention during the first six hours after his arrest, poor conditions of detention at the KitayGorod police station and the acts and omissions of the officials at the Severnoye Izmaylovo police station. However, those complaints were not examined. 25. The Justice of the Peace questioned the witnesses. Police officers I. and F. stated that after the public meeting the second applicant had participated, together with some sixty people, in an unauthorised march from Chistoprudnyy Boulevard, through Bolshaya Lubyanka Street, Kuznetskiy Most Street and down Rozhdestvenka Street. The marchers had been obstructing the traffic, chanting slogans and ignoring police orders made on a loudspeaker to stop the march. They (I. and F.) had required the second applicant to follow them to the police bus in order to draw up a report on the administrative offence, but he had ignored them, so they had seized him by the arms; he had resisted, refusing to present his documents and calling out to the crowd. 26. The second applicant pleaded not guilty and contested the police officers’ testimonies. He testified that he had been arrested at the indicated address while walking alongside other people returning from the authorised meeting. He insisted that he had been arrested without any warning or orders from the police. 27. Witness B. testified that he “had been present during Mr Yashin’s arrest” and that “the policemen had not given Mr Yashin any orders before arresting him”. 28. On the same day the Justice of the Peace found the second applicant guilty of having disobeyed a lawful order of the police. She based her findings on the witness statements of I. and F., their written reports and the report on the administrative arrest. She dismissed the testimonies given by the second applicant and B. on the grounds that they had contradicted the police officers’ testimonies and reports. The second applicant was convicted under Article 19.3 of the Code of Administrative Offences and sentenced to fifteen days’ administrative detention. 29. The first applicant’s case was examined after the second applicant’s trial by the same Justice of the Peace, Ms B. In the interval between the two hearings the first applicant’s counsel was able briefly to access the case file of the second applicant and meet the first applicant for the first time. 30. According to the applicants, the proceedings in the first applicant’s case began in the absence of members of the public, who were prevented from entering the hearing room. Many were barred from approaching the courthouse, which was cordoned off by the police. Later, during the proceedings, eight journalists were allowed in at the first applicant’s insistent requests. The Government contended, on the contrary, that the proceedings in this case had been open to the public. 31. At the beginning of the trial the first applicant requested that the case be transferred, in accordance with the statutory rules, to a court at his place of residence; that the hearing be adjourned in order to give him time to prepare his defence; that the verbatim records of the hearing be kept open; that copies of the complaints that he had lodged at the police stations the previous night be made available to him; and that five eyewitnesses of his arrest, including the second applicant, be called and examined. 32. The Justice of the Peace dismissed all of the requests, except one: that T. and A. be called as witnesses. The first applicant then challenged the Justice of the Peace, unsuccessfully. 33. I. and F. gave testimonies identical to those they had given in the second applicant’s case. The Justice of the Peace disallowed the following questions to I. and F put by the defence counsel: “What orders did you personally give to Mr Navalnyy?”, “Who gave the order to arrest Mr Navalnyy?” and “Why were two policemen’s reports identical?” 34. The first applicant pleaded not guilty and contested the police officers’ testimonies. He testified that he had been returning from the authorised meeting, walking, together with other people, not marching or chanting any slogans. However, the police had repeatedly obstructed their way and had then arrested them. He insisted that he had not received any orders from the police and had not resisted the arrest. 35. Witness T. testified that he had seen the applicant’s arrest. It had been noisy and he had not heard the police officers giving the first applicant any orders before arresting him. The police had announced through a loudspeaker “Your actions are unlawful” while surrounding a group of people, and had then begun arresting them. He had not seen the first applicant resisting the arrest. Witness A. testified that he had been walking down Teatralnyy Proyezd and had seen people in uniform arresting the first applicant on the pavement; during the arrest the police had announced through a loudspeaker “Your actions are unlawful”; witness A. had not seen the first applicant resisting the police during the arrest. 36. The first applicant requested that two video recordings of his arrest, shot by T. and A., be admitted as evidence. He also requested that the court obtain and examine the video footage which the police had at their disposal. Those requests were dismissed on the grounds that the court had no technical means of playing the recordings and that it would be unacceptable to use the devices provided by the defence. Those requests were not joined to the case file on the grounds that they had been submitted at the wrong stage of the proceedings. 37. According to the first applicant, most of the questions put by the defence to the witnesses were disallowed by the Justice of the Peace. She also refused to entertain his complaints concerning the lack of access to a lawyer, the refusal of a statutory phone call after the arrest, the allegedly unlawful detention during the first six hours after the arrest, the seizure of his possessions during the search, and the inhuman and degrading conditions of transfer and of detention at the Kitay-Gorod police station. 38. On the same day the Justice of the Peace found the first applicant guilty of having disobeyed the lawful order of the police. As in the second applicant’s case, she based her findings on the witness statements of I. and F., their written reports and the report on the administrative arrest. She dismissed the testimonies of the applicant, A. and T. on the grounds that they had contradicted the police officers’ testimonies and reports, and that no reasons for mistrusting the latter had been established. The first applicant was convicted under Article 19.3 of the Code of Administrative Offences and sentenced to fifteen days’ administrative detention. 39. On 6 December 2011 both applicants lodged appeals, claiming that their arrest and conviction for the administrative offence had been in breach of domestic law and in violation of the Convention. They contested the findings of fact made by the first instance as regards the events following their departure from the authorised meeting. In addition, they complained about the manner in which the first-instance hearing had been conducted, in particular, about the refusal of the Justice of the Peace to grant their requests, to admit the video materials as evidence and to call all the witnesses requested by the defence. They also challenged the grounds on which the court had dismissed the testimonies of the applicants and the defence witnesses. The applicants also complained of unlawful detention during the first six hours after their arrest, lack of access to a lawyer and the conditions in which they had been transferred between the police stations and remanded in custody at the Kitay-Gorod police station. 40. On 7 December 2011 the Tverskoy District Court of Moscow examined the applicants’ appeals in separate proceedings. In both cases the court dismissed the complaints about the refusals to hear witnesses and to admit the evidence requested by the applicants. It also rejected the applicants’ requests to have those witnesses called. It rejected the request to admit the video recordings in evidence because of their “unknown provenance”, and it refused to keep a verbatim record of the hearing because it considered it unnecessary. It granted the request to join a photograph of the first applicant’s arrest to the case file. On the same day the Tverskoy District Court dismissed the applicants’ appeals and upheld the first-instance judgment in both cases, citing the same reasons. 41. In the first applicant’s case the court held, in particular: “The Justice of the Peace has correctly established that Mr Navalnyy had disobeyed a lawful order of a police officer ..., in particular: at 8.45 p.m. on 5 December 2011 at 2 Teatralnyy Proyezd, Moscow (near Metropol hotel), after an authorised public event (meeting), in a park of Chistoprudnyy Boulevard, he participated with a group of about 60 people in a march that had not been notified to the executive authorities, went out on the road and continued walking from Chistoprudnyy Boulevard, down the side streets to Bolshaya Lubyanka Street, Kuznetskiy Most Street, and Rozhdestvenka Street in the direction of Red Square; by doing so he obstructed the traffic and created a risk of accident while shouting out “Shame!”, “This is our city!”, “Russia without Putin!”, “Down with the police state!”. In order to intercept the march a [police] cordon was set up at the crossroads of Pushechnaya and Rozhdestvenka Streets. Repeated lawful orders to stop and end the march were given through a loudspeaker; despite that, Mr Navalnyy with a group of people pushed through the cordon and came out onto Teatralnyy Proyezd while continuing to chant slogans, and there they were met by the police cordon. [He] did not react to the repeated lawful orders to stop these acts and disperse, continued his unlawful acts drawing the attention of citizens and the press. During his arrest Mr Navalnyy, in reply to an invitation to proceed to the police bus for the issuing of an administrative offence report, began to push away [I.] and [F.], trying to cause panic among people, and by doing so [he] manifested his refusal to comply with the lawful orders of the police and prevented them from carrying out their duties, an offence under Article 19.3 of the Code of Administrative Offences. ... Despite his denial, Mr Navalnyy’s guilt is proven by the report on the administrative charges ..., the statements of the police officers [I.] and [F.] [and] their testimonies given to the Justice of the Peace at the court hearing. The Justice of the Peace gave a correct and convincing assessment of this evidence, which led to the conclusion that Mr Navalnyy had deliberately refused to comply with the police officers’ lawful order to stop his actions breaching public order, and continued them in defiance of [the police order]. This evidence, which is relevant, admissible and credible, is consistent. No bias on the part of the aforementioned witnesses or grounds for them to slander Mr Navalnyy have been established [by the court], including the appeal instance; therefore the explanations of Mr Navalnyy, as well and the witness testimonies of A. and T., have been duly rejected for want of reliable corroboration; the ruling of the Justice of the Peace is sufficiently reasoned in this respect. ... ... As follows from the [escorting report] and the [detention report], the [police] had sufficient grounds for arresting Mr Navalnyy and for escorting him to the KitayGorod police station, Moscow, in particular, the impossibility of drawing up an administrative offence report on the spot. The reports comply with the requirements of the law, in substance and in form. At the same time the court dismisses the arguments of the defence concerning the unlawful deprivation of liberty during six hours as unsubstantiated. As follows from the case file, after his arrest at Teatralnyy Proyezd, at 2.30 a.m. on 6 December 2011 Mr Navalnyy was taken to the Kitay-Gorod police station, Moscow, where the administrative material against him was issued. On 6 December 2011 the administrative case was remitted to the Justice of the Peace. The police officers have complied with the terms of administrative detention provided for by Article 27.5 of the Code of Administrative Offences. ... During the [appeal] hearing ... Mr Yashin was examined as a witness. He testified that at the time of Mr Navalnyy’s arrest he had been with him at Teatralnaya Square. At the time of arrest [they] were on the pavement near the underpass, and did not commit any unlawful acts. About 100 people were blocked by the riot police. Then both Mr Navalnyy and Mr Yashin were arrested, virtually simultaneously. At this point the police officers did not give any orders, there was no disobedience on the part of [the applicants]. The police officers [I.] and [F.] did not take part in their arrest; their court testimonies were false. Giving its assessment of the witness testimony of Mr Yashin, the court finds it unreliable and dismisses it because it contradicts the testimonies of [I.] and [F.], which are logical, consistent, concordant and objectively corroborated by the written evidence ...” 42. The judgment held in the second applicant’s case was essentially the same, including the similar testimonies of the other applicant.