CASE OF NEMTSOV v. RUSSIA
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 - Fair hearing);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
6. The applicant was born in 1959 and lives in Moscow. He is a professional politician who has held in the past the posts of Nizhniy Novgorod governor, Deputy Prime Minister, and Minister for Energy. He later became one of the best-known opposition leaders, a founder of the political party the Union of Right Forces, and subsequently of the political movement Solidarnost. 7. On 10 December 2010 eight individuals, none of whom are applicants in the present case, submitted notice of a public demonstration to the mayor of Moscow. They indicated, in particular, that a meeting would be held from 6 p.m. to 7.30 p.m. on Triumfalnaya Square, Moscow. They estimated that about 1,500 people would take part in the event. The notice stated that the proposed demonstration was intended “to demand respect for the constitutional right to peaceful demonstration and assembly guaranteed by Article 31 of the Constitution of the Russian Federation”. The organisers indicated, inter alia, that it would not be necessary to divert the traffic. 8. On 22 December 2010 the Moscow Government’s Department for Liaison with Security Authorities informed the organisers that the event had been approved by the deputy mayor of Moscow. The number of participants had been limited to 1,000, and a particular sector of Triumfalnaya Square had been designated for the event: “in the area between the First and the Second Brestskaya Streets, opposite the Pekin Hotel and the adjacent road leading to the Tchaikovsky Concert Hall”. 9. In the meantime, on 16 December 2010 another group of three individuals, none of whom are applicants in the present case, submitted notice of an alternative public demonstration to the mayor of Moscow, at the same time and place as the authorised event and with the same title. It appears that this second public demonstration was not authorised, but on 22 December 2010 a number of alternatives as to the time and place were offered to the organisers. Moreover, none of its organisers could go to the venue on 31 December 2010 because two of them had been arrested earlier on the same day; the third had been abroad. 10. The authorised meeting began at 6 p.m. on 31 December 2010 at Triumfalnaya Square, as planned. According to the applicant, the perimeter of the square was cordoned off and was guarded by the riot police. The only access to the meeting venue was at Tverskaya Street. The applicant claimed that he had arrived at the meeting with his daughter; he had parked his car at Tverskaya Street and they had entered Triumfalnaya Square from Tverskaya Street through the only opening in the cordon. 11. During the meeting the applicant addressed the participants with a speech in which he criticised the criminal conviction of Mikhail Khodorkovskiy, the former owner of the Yukos oil company, and Platon Lebedev, his associate. He also condemned the corruption in the State administration. He chanted the slogans “The authorities to resign!”, “Putin to resign!”, “Happy New Year without Putin!” 12. At the end of the meeting the applicant, accompanied by his daughter, headed across Triumfalnaya Square towards Tverskaya Street. At the exit he saw the riot police arresting one of the participants in the demonstration. Shortly afterwards the applicant was also arrested and put into a police vehicle. 13. The parties disagreed as to the circumstances of the applicant’s arrest. 14. The applicant claimed that on the way to his car his passage had been obstructed by police officers and he and his daughter had found themselves in a crowd. They heard the police instruction over a loudspeaker calling for people to stay calm and to pass through. The applicant saw two people being arrested and put in police vans, and then he was arrested too, without any warning or explanation. The applicant claimed that he had not disobeyed or resisted the police; on the contrary, he had followed their instructions “to pass through”. He had been arrested by an officer who had been wearing a fur hat, an indication of his higher rank, as opposed to the crash helmets worn by the riot police troops guarding the cordon. 15. The applicant alleged that there existed at least three video recordings of his arrest, including the events immediately leading up to it; they had been produced by two media channels and one independent photographer, Mr T. He also maintained that there existed an official video of the public demonstration and the ensuing arrests, which had allegedly been shot by the police and kept at the Moscow Department of the Interior. 16. According to the Government, at the end of the meeting the applicant had headed towards Tverskaya Street and had begun calling passers-by to take part in another, unauthorised, meeting while shouting out anti-government slogans. They alleged that two police officers, Sergeant X and Private Y, had warned the applicant; they had ordered him to stop agitating the crowd and to return to the authorised meeting. They further contended that the applicant had ignored the warning and had continued shouting out the slogans and disobeying the police. Confronted with this behaviour, X and Y arrested him. 17. At 7 p.m. on the same day the applicant was taken to the police station of the Tverskoy District Department of the Interior. At 7.10 p.m. Private Y drew up a report stating that the applicant had been escorted to the police station “in order to draw up the administrative material”. Also at 7.10 p.m., the on-duty police officer drew up a report on the applicant’s administrative arrest under Article 27.3 of the Code of Administrative Offences, stating, like the other report, that he had been arrested “in order to draw up the administrative material”. The applicant signed both reports, indicating his disagreement with their content. 18. Both X and Y produced identical duty reports stating, in so far as relevant, as follows: “... on 31 December 2010 at 18.30 Boris Yefimovich Nemtsov was apprehended [because] he had disobeyed a lawful order of the police in connection with [X and Y] performing [their] duty of maintaining public order and safeguarding the public. He (Nemtsov) stood at 31 Tverskaya Street and began to shout “Down with Putin!”, “Russia without Putin!” as well as insults to President Medvedev, catching people’s attention and calling them to come to the Mayakovskiy monument for a meeting. [X and Y] approached Nemtsov, introduced themselves and warned him that it was unacceptable to hold a meeting at Triumfalnaya Square. They invited him to proceed to the authorised event that was taking place between the First and the Second Brestskaya Streets, opposite the Pekin Hotel. Nemtsov did not react and continued to shout out slogans and call people to hold a meeting. Nemtsov deliberately refused to comply with the lawful orders to cease his actions breaching public order, and continued them ostentatiously. To prevent him from organising an unauthorised meeting at Triumfalnaya Square and to prevent the unlawful acts, he was invited to enter a police van. In response to [these] lawful orders to enter the police van, Nemtsov began to break loose. He pushed us away and shouted insults to us: “Down with the police state!”, “Free-for-all cops!”, attempting to cause mayhem among the citizens surrounding him. By doing so he demonstrated his refusal to carry out the lawful order of the police and prevented them from carrying out their duty, thus committing an offence under Article 19.3 of the Code of Administrative Offences”. 19. At 7.30 p.m. X and Y made witness statements, essentially copying the text of their duty reports. 20. At the same time the district police inspector drew up a report on the administrative offence, stating that the applicant had disobeyed a lawful order of the police in breach of Article 19.3 of the Code of Administrative Offences. The applicant signed that report with the remark “100% lies”. 21. On the same day the head of the same police station issued a decision to transfer the administrative case file to the Justice of the Peace. 22. On the same day at about 7.15 p.m. the NTV television channel reported on the series of arrests following the demonstration at Triumfalnaya Square. Police Colonel B. commented on the applicant’s arrest, stating that he had been arrested for instigating an unauthorised meeting. 23. The applicant remained in detention at the police station until 2 January 2011, pending the determination of the charges against him. 24. The applicant described the conditions of his detention at the police station as extremely poor. He was detained in a solitary cell measuring 1.5 by 3 metres, with a concrete floor, without windows and with very bleak artificial lighting, which was insufficient for reading. The cell was not equipped with ventilation or furniture, except for a narrow wooden bench without a mattress or any bedding. The walls in the cell had been coated with “shuba”, a sort of abrasive concrete lining. The cell was not equipped with a lavatory or wash basin. The applicant had been obliged to call the wardens to take him to the lavatory when they were available. He was not provided with food or drink; he received only the food and drinking water that was passed to him by his family. 25. The Government submitted that from 31 December 2010 to 10 a.m. on 2 January 2011 the applicant had been detained in an administrativedetention cell measuring 5.6 sq. m equipped with artificial lighting and mandatory ventilation. They claimed that the applicant had been provided with drinking water and food, as well as with a sleeping place and bedding, but had refused to take them because he had received everything necessary from his family and friends. 26. On 1 January 2011 two members of a public commission for the monitoring of detention facilities visited the police station to check the conditions of the applicant’s detention. Their report stated that the applicant had been detained in a cell without a window, which was poorly lit, lacked ventilation and had no sanitary facilities, sleeping place, mattress or bedding. They found that the cell was not adequate for a two-day confinement and noted that the applicant had not been receiving hot food. 27. On 2 January 2011, following his conviction for an administrative offence, the applicant was transferred to another detention facility until 15 January 2011. 28. The applicant claimed that the poor conditions of detention had had a negative impact on his health. He submitted a medical certificate indicating that between 3 and 12 January 2011 he had sought medical assistance every day. 29. On 2 January 2011 the Justice of the Peace of circuit no. 369 of Tverskoy District of Moscow scheduled the hearing of the applicant’s case to take place on the same day. 30. At 11.30 a.m. the applicant was brought before the Justice of the Peace, who examined the charges. 31. In the courtroom the applicant discovered that there was no seat for him and he remained standing during the hearing, which lasted for over five hours. The parties disagreed as to the reasons why the applicant had remained standing. According to the applicant, the Justice of the Peace had ordered him to stand. The Government contested that allegation and claimed that the Justice of the Peace had repeatedly asked if anyone in the audience could give their seat to the applicant, but the applicant and his counsel had objected and insisted that he remain standing. 32. The applicant claimed that standing throughout the trial had been humiliating and physically difficult, especially after having spent two days in detention in poor conditions. He also alleged that it had prevented him from participating effectively in the proceedings because he could only address the judge in writing and had been obliged to write his submissions while standing up. This had further aggravated his fatigue and hampered the conduct of his defence. 33. The applicant pleaded not guilty and claimed that he had been detained for no reason other than political oppression. He contested the content of the police reports, in particular the statement that the police had given him a warning or an order which he could have disobeyed. 34. At the hearing the applicant lodged a number of motions. He requested in particular that the court admit as evidence the video footage of his arrest broadcast by two media channels. He also requested that the recording made by Mr T., an independent photographer, be admitted as evidence (see paragraph 15 above). 35. The applicant also requested that the court obtain from the prosecution the video recording made by the Moscow police at the scene of the public demonstration. 36. The applicant further requested that the court call and cross-examine Police Colonel B. about the circumstances of the applicant’s arrest, which he had commented on in the media (see paragraph 22 above). 37. The Justice of the Peace dismissed the applicant’s request to admit the video recordings on the grounds that the provenance of the recordings was not supported by evidence. The court also refused to order that the video recording made by the police be admitted as evidence, stating that the applicant’s request was not “specific enough” and that the applicant had failed to prove the existence of any such recordings. Lastly, the court refused to call and examine Police Colonel B. as a witness, having considered that request irrelevant. 38. At the applicant’s request the court called and examined thirteen witnesses who had been at the scene of the authorised demonstration. They testified that they had heard the applicant addressing the meeting and that after his speech he had said farewell and left; he had not made any calls to go on to another meeting. Six of those witnesses testified that they had left the meeting at the same time as the applicant and had witnessed his arrest. They explained that the exit from the meeting had been blocked by the riot police and the crowd had begun to build up because those who wanted to leave Triumfalnaya Square could not do so. When the applicant arrived at the cordon the police surrounded him so as to separate him from others wanting to leave the meeting, and arrested him. Eight witnesses stated that the applicant had not been shouting any slogans and had not been acting against the police orders before being surrounded and arrested. One of those witnesses, M.T., stated that she had heard the applicant asking the riot police why the exit had been blocked. She had also heard him shouting that Article 31 of the Constitution guaranteed the freedom of assembly, but he had not shouted any calls or obscenities. The remaining witnesses had not seen the actual arrest. In particular, the applicant’s daughter and her friend testified that they had been walking back to the car with the applicant and talking about the plans for New Year’s eve, and when they had arrived at the police cordon they had lost sight of the applicant in the crowd; one or two minutes later they had called him on his mobile phone and had found out that he had been arrested. 39. The court called and examined two policemen, sergeant X and private Y, who had signed the reports stating that they had arrested the applicant because he had disobeyed their orders. They testified that on 31 December 2010 they had been on duty maintaining public order at Triumfalnaya Square. They had seen the applicant at 31 Tverskaya Street. He had been shouting anti-government slogans and calling people around him to hold an unauthorised meeting. They had approached the applicant and requested him to stop agitating outside the authorised meeting; they had asked him to return to the place allocated for the meeting and to speak there. The applicant had not reacted to their requests, so they had asked him to proceed to the police van. The applicant had disobeyed that order and had been arrested; he had put up resistance while being arrested. 40. On the same day the Justice of the Peace found that the applicant had disobeyed the police orders to stop chanting anti-government slogans and had resisted lawful arrest. The Justice of the Peace based her findings on the witness statements of X and Y, their written reports of 31 December 2010, their written statements of the same date, the report on the administrative arrest of the same date, the notice of the public demonstration of 16 December 2010 and the reply of 22 December 2010 indicating that it had not been authorised (it appears that this reference concerned the events described in paragraph 9 above). The Justice of the Peace dismissed the applicant’s testimony on the grounds that as a defendant, he would have sought to exonerate himself from administrative liability. She also dismissed the testimonies of seven eyewitnesses on the grounds that they had contradicted the policemen’s testimonies and because those witnesses had been acquainted with the applicant, had taken part in the same demonstration and therefore must have been biased towards the applicant. The testimonies of the remaining six witnesses were dismissed as irrelevant. 41. The applicant was found guilty of having disobeyed a lawful order of the police, in breach of Article 19.3 of the Code of Administrative Offences. He was sentenced to fifteen days’ administrative detention. 42. On 3 January 2011 the applicant wrote an appeal against the judgment and submitted it to the detention facility administration unit. It appears that despite his counsel’s numerous attempts to lodge the appeal directly with the court, it was not accepted before 9 January 2011. On 11 January 2011 his counsel submitted a supplement to the points of appeal. 43. In his appeal the applicant claimed that his arrest and conviction for the administrative offence had been in breach of the domestic law and in violation of the Convention. He alleged that his right to freedom of expression and freedom of assembly had been violated. He contested the findings of fact made by the first instance as regards his conduct after he had left the meeting. He challenged, in particular, the court’s refusal to admit the photographic and video materials as evidence or to obtain the footage of the demonstration shot by the police. In addition, he complained about the manner in which the first-instance hearing had been conducted. In particular, he alleged that the Justice of the Peace had ordered him to stand throughout the hearing, which had been humiliating and had made it difficult to participate in the proceedings. The applicant also complained about the conditions of his detention at the police station from 31 December 2010 to 2 January 2011. 44. On 12 January 2011 the Tverskoy District Court examined the appeal. At the applicant’s request the court kept the verbatim records of the hearing. 45. During the appeal hearing the applicant complained of the alleged unlawfulness of his arrest and the poor conditions of his detention at the police station. He asked the court to declare the acts of the police who had detained him for over forty hours before bringing him before a court unlawful. 46. As regards the merits of the administrative charges, the applicant reiterated before the appeal instance his requests that the court admit three video recordings of his arrest as evidence and that it obtain the video recording made by the Moscow police. He also requested that two photographs of his arrest be admitted as evidence. He asked the court to call and examine photographers T. and V. as witnesses and to cross-examine police officers X and Y again. The court granted the requests to admit one video recording and two photographs as evidence, and decided to call and examine photographer T. as a witness, but rejected all the other requests. 47. Photographer T. testified at the hearing that he had gone to the meeting to film it and had been waiting for the applicant at the exit from the meeting because he had wanted to interview him. When the applicant approached the exit a big group of policemen rushed over to block his way and there had been a minute’s pause when a crowd began to build up against the cordon, blocking the passage. Then one person was arrested, and about thirty seconds later someone else, and then the applicant. T. saw the applicant’s arrest as he was filming it from a distance of about five or six metres. He was separated from the applicant by several rows of people, of which two rows consisted of policemen. The recording began a few minutes before the arrest and continued without any interruption until the applicant had been put in the police van. He specified that the applicant had not put up any resistance to the officers arresting him. He identified on the photograph the officer wearing a fur hat, who had arrested the applicant, and explained that that person had taken the applicant out of the crowd and then passed him on to another policeman in order to put the applicant into the police van. He also stated that the applicant had not shouted any slogans or insults. The applicant had repeated “Easy, easy” to the policemen while being escorted to the van. T. also testified that the applicant had been standing throughout the first-instance hearing, while his counsel had been sitting on a chair. 48. The court watched the video recording made by T. However, it decided not to take cognisance of T.’s testimonies, his recording or the photograph, on the following grounds: “... the footage begins with the image of a large number of people gathered at 31 Tverskaya Street in Moscow, with Mr Nemtsov at the centre. A policeman addresses the citizens through a loudspeaker with a request to disperse and not to block the passage, but Mr Nemtsov remains standing in one place addressing the gathered citizens. The video operator is at such a distance from the applicant that he is separated from him by several rows of people, including the gathered citizens and the riot police, and it is impossible to understand what these citizens and the applicant are saying. Subsequently the recording of the applicant is interrupted as the camera points away onto the policemen putting the first arrested person, and then another one, into the police vans. Only afterwards does the video recording show the applicant being led to a police van by policemen, and he puts up no resistance at this moment of the footage. In this respect, and taking into account that the footage does not show Mr Nemtsov’s actions immediately before his placement in the police van, the video and the accompanying audio do not depict Mr Nemtsov addressing the citizens before he was detained. The court concludes that the submitted footage does not refute the testimonies of the policemen, and [T.’s] testimony cannot refute them either because he observed only those actions of Mr Nemtsov that appear on the footage. ... The photographs submitted during the appeal hearing that depict Mr Nemtsov surrounded by policemen, one of whom is supporting his arm, cannot be considered by the court as refuting the event of the offence or the evidence, including the testimonies of [X and Y], because of the absence of information on the exact time of its taking, or on its connection with the place ... ” 49. On the same day the court dismissed the applicant’s appeal and upheld the first-instance judgment. It found, in particular, on the basis of the testimonies and reports of X and Y, that the applicant had indeed been guilty of having disobeyed a lawful order of the police. It upheld the reasoning of the first-instance court whereby it rejected the testimonies of thirteen witnesses called at the applicant’s request. As regards the testimonies of X and Y, on the other hand, it found no reason to mistrust them because they had had no personal interest in the outcome of the applicant’s case. 50. In its appeal decision the court addressed the lawfulness of the applicant’s detention pending the first-instance trial and considered that there had been no breach: “... after the report on the administrative offence had been drawn up, the information necessary for establishing the circumstances of the committed offence was collected, including the explanations of [X and Y], the notice of the place of the public demonstration of 31 December 2010, the [mayor’s] reply to that notice, as well as the personal characteristics of the person in relation to whom the administrative offence report had been drawn up. A ruling was made by the Justice of the Peace of 2 September 2010 convicting the applicant of an offence under Article 19.3 of the Code of Administrative Offences. Therefore the applicant’s detention during less than 48 hours was not in breach of Article 27.5 § 2 of the Code of Administrative Offences.” 51. As regards the conditions of the applicant’s detention between 31 December 2010 and 2 January 2011, the court found that his complaints had been outside the scope of the current proceedings, holding that another type of legal action should have been brought by the applicant to challenge those acts. The court did not specify what procedure the applicant should have followed as an avenue for those complaints. 52. On 31 March 2011 the applicant lodged before the Tverskoy District Court a complaint under Chapter 25 of the Code of Civil Procedure. He challenged his initial arrest and complained of the poor conditions of detention for over forty hours. 53. On 4 April 2011 the court refused to accept the applicant’s action, holding that the questions concerning the lawfulness of the police acts had to be examined in the relevant administrative proceedings, but could not be dealt with in civil proceedings. 54. On 14 April 2011 the applicant appealed against the refusal to accept his complaint. The Moscow City Court dismissed his appeal on 22 July 2011. It relied, in particular, on Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation and held, in so far as relevant, as follows: “... the courts may not examine complaints lodged under Chapter 25 of the Code of Civil Procedure against acts or inaction connected with the application of the Code of Administrative Offences, Chapter 30 of which provides for the procedure for challenging them; or acts or inaction for which the Code of Administrative Offences does not provide for a procedure by which they may be challenged. Acts or inaction that are inseparable from the administrative case may not be subject to a separate challenge (evidence in the case, [including] reports on the application of precautionary measures to secure the course of justice in the administrative case). In this case the arguments against the admissibility of a particular piece of evidence or the application of a precautionary measure to secure the course of justice may be put forward during the hearing of the administrative case or in points of appeal against the judgment or ruling on the administrative case. However, if the proceedings in the administrative case are terminated, the acts committed in the course of these proceedings, if they entailed a breach of an individual’s or a legal person’s rights or freedoms, or hindered the exercise of their rights and freedoms, or imposed an obligation after the proceedings had been terminated, [they] may be challenged under Chapter 25 of the Code of Civil Procedure. Under the same procedure one may challenge the acts of officials if no administrative file has been opened.” 55. The applicant also attempted to challenge the acts of the judiciary involved in his case before the Judiciary Qualification Board of Moscow. His attempts were, however, unsuccessful.