CASE OF BUTKEVICH v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom to impart information);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
8. The applicant was born in 1977 and lives in Kiev, Ukraine. 9. In his application to the Court the applicant stated that at the relevant time he had been employed as a journalist by a Ukrainian television channel. In July 2006 he had volunteered to cover the G8 Summit, which was being held in the St Petersburg region, for Libertarian Information and News Collective (LINC), disseminating press-releases and information on the Internet about protests, connecting journalists and protesters, and providing coverage about the issues raised by activists. In his comments on the third-party submissions before the Court, the applicant added that at the time he had been “involved with” the Independent Media Centre (Indymedia); prior to the G8 summit, he had taken leave from his television assignments and had “focused on media work” in the framework of LINC. 10. According to the applicant, at 8.30 a.m. on 16 July 2006 he happened to “be around” when a so-called “anti-globalism” march was taking place in Nevskiy Avenue in St Petersburg (see also paragraphs 19 and 20 below). He was not wearing any distinctive clothing or insignia to designate him as a journalist. He did not take part in the protest; rather, his actions were limited to observing people and taking photographs, including when the police started to disperse the gathering and to arrest some of the participants. One of the police officers spotted him taking pictures and ordered him to switch off the camera. According to the applicant, he complied and no further order was given to him; he did not show any resistance to the police. In his observations before the Court the applicant said that he had presented his press-card issued by the International Federation of Journalists, and explained his presence at the venue. 11. It follows from the identical reports of two police officers that they approached the applicant and ordered him to cease his “unlawful actions”; despite several warnings, the applicant refused; he was then ordered to follow them to the police vehicle in order to be taken to the police station. Despite several warnings, he refused, grabbed their uniforms, behaved defiantly and shouted. He was then taken to the police vehicle by force. 12. A record of administrative escorting was drawn up under Article 27.2 of the Federal Code of Administrative Offences (hereinafter “the CAO”). The record contained no reasoning. 13. The applicant was then subjected to the procedure of administrative arrest under Article 27.3 of the CAO. The following pre-typed text was underlined in the record: “arrested in order to put an end to the offence, to compile the record of administrative offence, to examine the case and so on, as required by the CAO”. According to the record, the applicant was not subjected to the procedure involving a personal search or an examination of his belongings. 14. According to the Government, when the applicant was arrested and held in the police station, he was in possession of an immigration card indicating “a private visit” to Mr T. residing in Moscow as the aim of his presence in Russia, as well as photocopies of his Ukrainian passport and Shengen visa. The applicant was then interviewed and said that he was a journalist and worked as an editor for the Studio1+1 television channel. The Government pointed out, in this connection, that the administrative case file contained no photocopies of any document confirming the applicant’s status as a professional journalist. 15. Apparently, the applicant managed to contact a lawyer. In the applicant’s submission, the lawyer arrived at the police station at 9.15 a.m. but was not allowed to see him until 2 p.m. 16. At around that time, the applicant was allowed access to the administrative-offence record. The record compiled by Officer F. indicated that the applicant had been arrested because of his “participation in a nonauthorised demonstration in Nevskiy Avenue, thus creating a risk of accident threatening his own and others’ lives and limb”. The record also stated: “A police officer approached [the applicant], introduced himself and asked [the applicant] to cease his unlawful actions. Despite repeated and lawful orders to cease unlawful actions, [the applicant] refused. Despite repeated and lawful orders to get into the police vehicle, he also refused while grabbing the police officers’ clothes and shouting. Physical force had to be used against him to make him get into the vehicle.” The record also had the following pre-typed line with added handwritten text: “Witnesses, attesting witnesses, victims: Go., [address]; So., [address] ...” 17. Several hours later, a new administrative-offence record was compiled by Officer D. The applicant read and signed it at around 7 p.m. According to the record, the applicant was arrested because he had “disobeyed a lawful order from a police officer”. The record also had the following pre-typed line with added handwritten text: “Witnesses, attesting witnesses, victims: Bo., [address]; Ka., [address] ...” 18. At around 8.30 p.m. the applicant was brought before a justice of the peace. He was accused of disobeying two orders from the police: (i) to cease his participation in the non-authorised demonstration; and (ii) to get, “voluntarily”, into the police vehicle, as stated in the judgment of the justice of the peace. 19. The applicant stated before the court that while having a walk with his friend, Ms K., he had seen people running along Nevskiy Avenue with banners and posters; he had followed them to take some photographs. 20. The applicant’s lawyer pointed out that the second record drawn up by the police was substantially different from the initial one. His efforts to have it admitted to the file, however, were unsuccessful. The judge heard Ms K., who stated that she had been taking a walk together with the applicant at 8.30 a.m. on 16 July 2006 when they had seen people running along Nevskiy Avenue; the applicant had started to follow them; she had lost sight of him and had eventually caught up with him when he had been placed in a police vehicle; at that point, he had not been showing any resistance to the police. 21. According to the applicant, the court refused to hear the officers who had arrested him (“the arresting officers”), the officers who had compiled the initial and the amended administrative-offence records or anyone mentioned in the record (see paragraphs 16-17 above). According to the Government, the applicant made no request to have the arresting officers examined at the trial. 22. On the same evening, the justice of the peace convicted the applicant under Article 19.3 of the CAO and sentenced him to three days of detention, to be counted from 10 a.m. on the same day. 23. The court relied on (i) the (second) administrative-offence record, compiled by the authority initiating prosecution against the applicant, and (ii) the written statements made by the arresting officers prior to the trial. 24. The applicant was held in a police cell for a night and then transferred to a special detention facility to serve the sentence. 25. Although the trial judgment was amenable to appeal within ten days, the applicant chose to lodge an appeal without delay. He also made a written statement, which read: “Acting as a journalist, on 16 July 2006 I took photographs during a public event. I did not think I was breaching any law. If I did so unknowingly, I am sorry about that. On the same day I was sentenced to three days’ detention. I ask the appeal court, when examining my appeal, to grant it as regards my release. I would ask you to examine the appeal in my absence but with the participation of my counsel and a representative from the Ukrainian Consulate.” 26. On 18 July 2006 the applicant was visited by an official from the Ukrainian Consulate and signed a document authorising the Consul to represent him on appeal. 27. The Consul asked the appeal court to examine the appeal without delay. 28. On 18 July 2006 the Kuybyshevskiy District Court of St Petersburg heard the representative, upheld the conviction but reduced the sentence to two days’ detention. The appeal court held as follows: “[The applicant] argued in his statement of appeal that the trial court had not taken into account that as a journalist he had not taken part in the so-called “anti-globalist” protest; the trial court had not examined prosecution witnesses while the judgment was solely based on the written reports made by the police officers who had arrested him ... The trial judge gave a proper assessment of the officers’ reports and testimonies, including the testimony by K. who had been examined at the defendant’s request. It followed from K.’s statement that she had not observed the moment of the defendant’s arrest. This court has no reasons to doubt the officers’ reports because they had not been previously acquainted with the defendant and had no reason to commit perjury.” The appeal court indicated that its decision was “subject to immediate enforcement”. 29. According to the applicant, he was released at 4 p.m. on the same day. Referring to a logbook of detainees (a copy of the relevant extract from which has not been submitted to this Court), the Government submitted that the applicant had been released at 10 a.m. on 18 July 2006. 30. The applicant sought a supervisory review of the judgments before the City Court. He argued, inter alia, that he had been refused an opportunity to examine the arresting officers whose pre-trial reports had constituted the main adverse evidence. On 13 November 2006 the deputy President of the City Court upheld the conviction in a summary manner.