CASE OF SERGEY KUZNETSOV v. RUSSIA
Violation of Art. 11 read in the light of Art. 10;Non-pecuniary damage - award
Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1957 and lives in Yekaterinburg. 5. On 18 March 2003 the applicant and two other persons (Mr Sh. and Ms M.) sent a notice to the head of Yekaterinburg town administration of their intention to stage a picket in front of the Sverdlovsk Regional Court. The picket was to take place between 25 and 28 March 2003 between 9 and 11 a.m. The declared purpose of the picket was “to attract public attention to violations of the human right of access to a court”. 6. On 19 March 2003 the head of the Committee for Public Relations and Mass Media of the Yekaterinburg town administration acknowledged receipt of the notice. He noted that, should the picket cause any inconvenience, such as blocking access to the court-house or impairing its normal functioning, the administration would have to intervene. 7. On 20 March 2003 the head of the Yekaterinburg public security police ordered that the police should maintain public order and traffic safety during the picket. 8. On 25 March 2003 the applicant and others held the picket. They distributed press clippings and leaflets about Mr Ovcharuk, the President of the Sverdlovsk Regional Court, who had allegedly been involved in corruption scandals, and collected signatures for his dismissal. 9. On 27 March 2003 Mr Dementyev, the first deputy president of the Sverdlovsk Regional Court, sent the following letter to the head of the Verkh-Issetskiy police department of Yekaterinburg: “With the consent of the Yekaterinburg town administration, a group of citizens comprising Mr Sh., Mr Kuznetsov and Ms M., held a picket in front of the building of the Sverdlovsk Regional Court... The picket notice indicated that the purpose of the picket was ‘to attract public attention to violations of the human right of access to a court’. As the subsequent events demonstrated, the picket organisers misled the officials of the Yekaterinburg town administration as to the real purposes of their action. Instead of drawing public attention to the problems of judicial protection and violations of human rights, as it was indicated in the picket notice – if they believed that such problems existed – which would be hard to contradict because the said problems exist in reality, for three days the picket participants distributed printed leaflets and materials of a slanderous and insulting nature which targeted the president of the Sverdlovsk Regional Court personally. The information contained in the extract from the Novaya Gazeta newspaper was more than two years old. It had been checked by the Supreme Qualification Panel of Judges and the Prosecutor General’s Office and found to be slanderous, of which the picket participants, in particular Mr Sh. and Mr Kuznetsov, were perfectly aware. The above stated begs the conclusion that the picket organisers deliberately and maliciously changed the nature of the action and in that way misled the public whom, according to the picket notice, they merely intended to acquaint with the state of judicial protection of human rights. They have committed thereby an administrative offence by violating section 4 of the decree of the Presidium of the USSR Supreme Council of 28 July 1988, as amended by the Presidential decree of 25 May 1992, and, pursuant to section 8 of that decree, they are administratively liable under Article 20.2 § 1 of the Code of Administrative Offences... Accordingly, I ask you to institute administrative proceedings against Mr Sh., Mr Kuznetsov and Ms M. in accordance with Article 28.3 § 2 (1) of the said Code, prepare a report on an administrative offence and decide on the issue of their legal responsibility for that breach of law. You are requested to inform me of the decision taken.” 10. On 17 April 2003 an official of the Verkh-Issetskiy police department of Yekaterinburg compiled a report on administrative offences committed by the applicant under Article 20.2 §§ 1 and 2 of the Code on Administrative Offences. According to the report, the applicant had given notice of the picket too late, he had distributed leaflets of a slanderous and insulting nature against the president of the regional court and he had also obstructed the passage of citizens into the court-house. Court bailiffs Mr R. and Mr M. were listed as eyewitnesses. 11. On 21 April 2003 the head of the Verkh-Issetskiy police department forwarded the report and supplementary materials to the Verkh-Issetskiy District Court of Yekaterinburg. The matter was assigned to the justice of the peace of the 3rd Court Circuit of the Verkh-Issetskiy district of Yekaterinburg. 12. On 15 May 2003 the applicant challenged the judicial formation and requested that the matter be examined in a neighbouring region. He claimed that objective examination of the matter in Yekaterinburg was impossible because it had been initiated at the instigation of the high-ranking officials of the regional court. The justice dismissed his challenge, holding that under the Code on Administrative Offence there were no legal grounds to change the venue. 13. On 19 May 2003 the justice issued a ruling on an administrative offence (постановление по делу об административном правонарушении) in which she found the applicant guilty on three counts. 14. Firstly, the justice held that the applicant had breached the established procedure for organising a picket. He had sent the picket notice eight days before the picket date, whereas both the 1988 USSR Supreme Council’s decree and the local Yekaterinburg regulation on public assemblies established a ten-day notification period. 15. Secondly, the justice found the applicant to have breached public order during the picket. She relied on the following evidence: “The applicant’s guilt... is confirmed by the report on an administrative offence dated 17 April 2003; the statements by the witnesses Mr M. and Mr R. who testified in court that they worked as court bailiffs in the Sverdlovsk Regional Court. At about 9.10 a.m. on 25 March 2003 they had gone onto the porch of the Sverdlovsk Regional Court and seen some people with banners – among them Mr Kuznetsov holding the banner ‘Ovcharuk – resign’ – who were standing on the porch right in front of the entrance on the top floor, blocking the passage and distributing leaflets. When they had asked them to show their identity documents and go down the stairs, they had refused but they had gone down after a police officer had approached them. Judges coming to work had told them that the picket participants had blocked access to the court. [List of evidence showing the applicant’s guilt continues:] the report by the court bailiff Mr R. of 25 March 2003; the report by the police officer from the Verkh-Issetskiy police station Mr G. which indicated that between 25 and 28 March 2003 he had been responsible for public order during the picket in front of the Sverdlovsk Regional Court. The picket had been organised by Mr Kuznetsov, Mr Sh. and Ms M., who at 9 a.m. on the day of the picket were standing on the staircase at the entrance to the Sverdlovsk Regional Court and thus obstructing access to the building. Following his intervention and that by the court bailiffs, they had gone down to the pavement in front of the court-house and had not subsequently interfered with the normal functioning of the Regional Court... The judge does not accept the arguments by Mr Kuznetsov’s representative to the effect that Mr Kuznetsov did not block access to the Sverdlovsk Regional Court, because these arguments contradict the evidence that has already been examined in court and because they cannot be confirmed by the witnesses [for the defence] who were present at the picket from 9.30 a.m., because by that time the picket participants had already descended the staircase on orders of the police officer and were no longer blocking access... The photographs [produced by the defence and] examined in court cannot prove that Mr Kuznetsov did not block access to the court-house, because they depict solely the moment when they were taken rather than the entire time during which the picket had been held; moreover, the court does not know when the photographs were taken.” 16. Thirdly, the judge found that the picket had been conducted at variance with the aims listed in the notice: “According to the notice dated 18 March 2003, the initiative group of citizens comprising Mr Sh., Mr Kuznetsov and Ms M. held a protest action against violations of citizens’ right to judicial protection. As [the applicant’s representative] explained in court, the picket aimed at attracting public attention to the problems of judicial protection, such as refusals to accept a claim or unfair judgments. The witness Mr M. stated that he had brought and distributed a newspaper describing certain instances in which citizens’ rights to judicial protection had been breached. At the same time, the picket participants distributed extracts from the Novaya Gazeta newspaper containing A. Politkovskaya’s article ‘Ovcharuk and his team’ which in its contents did not correspond to the aims of the picket. The distribution of those extracts was not contested by the applicant’s representative in court and also confirmed by witnesses.” 17. The judge declared the applicant guilty under Article 20.2 §§ 1 and 2 of the Code of Administrative Offences and fined him 1,000 Russian roubles (RUB, approximately 35 euros (EUR)). 18. On 11 July 2003 the Verkh-Issetskiy District Court of Yekaterinburg, on an appeal by the applicant, upheld the ruling of the justice of the peace, endorsing the reasons that she had given. That judgment was final as no further ordinary appeal lay against it. 19. The Constitution guarantees the right to freedom of peaceful assembly and the right to hold meetings, demonstrations, marches and pickets (Article 31). 20. The Decree of the Presidium of the USSR Supreme Council no. 9306-XI of 28 July 1988 (in force at the material time pursuant to Presidential Decree no. 524 of 25 May 1992) provided that organisers of an assembly were to give written notice to the municipal authorities no later than ten days before the planned assembly (section 2). The authority was to give its response no later than five days before the assembly (section 3). Assemblies were to be conducted in accordance with the aims listed in the notice and with respect for Soviet laws and public order (section 4). Individuals who breached the established procedure for organising and holding assemblies incurred liability under the laws of the USSR and Soviet republics (section 8). 21. Article 20.2 § 1 of the Code on Administrative Offences provides that a breach of the established procedure for organising a demonstration, meeting, procession or picket shall be punishable by a fine of ten to twenty times the minimum monthly wage (that is, RUB 1,000 to 2,000 at the material time). Paragraph 2 of that Article stipulates that a breach of the established procedure for holding a demonstration, meeting or picket shall be punishable by a fine of ten to twenty times the minimum wage for organisers, or five to ten times the minimum wage for participants.