CASE OF ANNENKOV AND OTHERS v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicants either owned businesses at Voronezh municipal market and rented the market pitches for their businesses, or worked as vendors for these businesses. 6. It appears that in August 2007 the title to the plot of land on which the market was located was transferred from the town to a municipal enterprise and then to a private company, which intended to demolish the market and build a shopping centre. It appears that in 2008 and 2009 court proceedings were ongoing between the prosecutor’s office and the municipal enterprise in relation to the land in question. 7. Disagreeing with this course of action, which would adversely affect their businesses and employment, the applicants and some other people (several dozen in total) decided to remain on the market premises permanently, doing “night shifts”. 8. According to the applicants, on an unspecified date and in a specified manner, the entrepreneurs notified the town administration of their intention to “constantly do night shifts at the market until the matters relating to the legality of the land’s transfer and the demolition of the market [were] settled”. They started their “night shifts” on an unspecified date. 9. On 6 August 2009 the police told the entrepreneurs who had gathered at the market to leave the premises. Some refused to comply in the absence of any court order, and argued that, under their rent contracts, they had a right to remain at the market. 10. On 7 August 2009 some of the applicants (Mr Annenkov, Mr Khripunov, Mr Khavantsev, Mr Finskiy, Ms Suprunova, Ms Zakharova and Ms Guseva) were arrested (see also paragraphs 41-51 below). 11. These applicants were accused of an offence under Article 19.3 of the Federal Code of Administrative Offences (“the CAO”), which punished disobeying or resisting the lawful order of a public official (see paragraph 61 below). The applicants, who were assisted by counsel before the trial court, pleaded not guilty and denied that they had disobeyed or resisted any specific lawful orders from the police, or that they had otherwise breached the public order or endangered public safety. 12. By a judgment of 7 August 2009 a justice of peace convicted Mr Finskiy of the offence and sentenced him to five days’ administrative detention. The court held as follows: “[The defendant] violated the procedure for organising and managing a gathering (собрание); he disobeyed a lawful order issued by police officers in relation to their duties to ensure public order and safety, he also obstructed their exercise of the above duties ... [The defendant’s] guilt is confirmed by the following documents: the record of the administrative offence, a complaint and written statements issued by the market director, written reports by police officers, and statements from witnesses ...” 13. On the same day Mr Khripunov was sentenced to five days’ detention. The court held as follows: “[The defendant] violated the procedure for organising and managing a gathering; he disobeyed a lawful order issued by police officers in relation to their duties to ensure public order and safety, he also obstructed their exercise of the above duties ... N., a witness, made the following statement before this court, ‘on 7 August 2009 a group of entrepreneurs were doing night shifts to prevent the demolition of the market building. Suddenly, police officers arrived and started to grab people and take them to the police station. [The defendant] was also grabbed by the police; he did not show any resistance during this procedure ...’ The court adopts a critical stance in relation to the testimony of this witness, who is the [defendant’s] acquaintance and colleague, because this testimony is refuted by the bulk of the other evidence, namely the officers’ written reports made in their official capacity ...” 14. A judgment, apparently in similar terms, was issued in respect of Mr Khavantsev, who was sentenced to ten days’ detention. 15. As required under the CAO, the applicants started to serve their sentences of administrative detention immediately following the trial judgments in their cases. 16. At the same time, the applicants appealed to the Sovetskiy District Court of Voronezh (hereafter “the District Court”). Mr Khripunov argued that the trial court had not made a proper assessment of the testimonies of eyewitnesses. He and Mr Finskiy argued, inter alia, that they had taken part in a “gathering”, and the Public Events Act did not require that prior notice be given to the competent public authority for this type of public event (see paragraph 66 below). Moreover, in breach of the Act, no written requirement to cease any unlawful conduct had been issued to them or the other entrepreneurs, and the penalty of administrative detention had been disproportionate. 17. Mr Finskiy argued before the appeal court that he had been present on the market premises in the early morning of 7 August 2009, because he had been performing a “duty”. Having heard some noise, he had gone out of the building and had seen other entrepreneurs being arrested; he had started to film the events on his camera but had then been ordered to delete the video and had been arrested. 18. The appeal court examined a written statement from M., the new executive director of the market. He had arrived at the marketplace, but could not get into the office building because a number of entrepreneurs were blocking the entrance by holding hands or linking their arms. Following a request by him for assistance, the police had ordered the entrepreneurs to stop their activity. The entrepreneurs, including Mr Finskiy, had not complied with that order. 19. The appeal court also examined written statements from B., Ma. and L., who provided testimony in the following terms. While passing through the marketplace on the morning of 7 August 2009, they had seen a group of some fifty people. These people had been shouting slogans and calling for people in the town and regional administrations to be dismissed, as well as calling for the violation of public order. The police had told them to stop, but they had not complied with that order. Thereafter, the police had repeated the warning to the most active participant. After he had failed to comply, he had been taken to a police car, while grabbing the officers’ uniforms and trying to run away. 20. Officers S., Y. and F. submitted written reports in the following terms. On 6 August 2009, noting the blocking of the entrance to the office building, they had ordered the people present to disperse. The same thing had happened on 7 August 2009. Approaching one of the most active participants, Mr Finskiy, they had ordered him to stop. After he had refused, they had taken him to the police station. 21. The appeal court heard Ms D., who stated that Mr Finskiy had been trying to film the ongoing events when the police had taken him away; he had not shown any resistance. 22. On 13 August 2009 the District Court upheld the judgment in respect of Mr Finskiy, stating as follows: “The court has no reason to doubt the testimonies of police officers and L., B. and Ma., because they were not previously acquainted with the defendant or other entrepreneurs, and have no reason to give false testimony against him ... The court dismisses the argument that L., B. and Ma. could not be eyewitnesses since the market was surrounded by a wall. Their testimonies indicate that they effectively passed through the marketplace ... The court dismisses the argument that the police acted unlawfully in relation to the entrepreneurs’ presence at a gathering requiring no prior authorisation. As the material in the file and testimonies indicate, the police acted lawfully with the aim of ensuring public order and public safety, because the entrepreneurs were blocking access to the market for employees and had not reacted to lawful orders from the police to stop these actions ... The court adopts a critical attitude in respect of the testimony of D., who tried to help her colleague avoid responsibility for the offence, because this testimony is refuted by the other evidence ...” 23. By a decision of 13 August 2009, in respect of Mr Khripunov, the District Court held: “P., a witness, stated before the appeal court ‘on 7 August 2009 ... people in plain clothes and the police arrived at the market and, following orders from the chief officer of the Sovetskiy police station, started to arrest entrepreneurs without explaining the reasons for such arrests. [The defendant] was also arrested, while showing no resistance or disobedience to any specific orders ...’ The fact that [the defendant] committed the offence is confirmed by: – the record of the administrative offence stating ‘after his violation of the procedure for organising and managing public events, while being arrested, he disobeyed the lawful order of a police officer, grabbed his uniform and tried to escape ...’; – written statements from [three passers-by] who, while passing through the market area, saw some fifty people chanting slogans and calling for the dismissal of the mayor and the governor and for violations of the public order. Despite the police’s order to stop what they were doing, the entrepreneurs refused; thereafter the police approached [the defendant], who appeared particularly active, and again ordered him to stop what he was doing, but he did not respond to this order. While being placed in the police car, he resisted, and threated the officers with violence and prosecution; – [the officers’ written statements in similar terms]: ... Having approached one of the most active men (subsequently identified as the defendant), they warned him against committing offences, but he did not react and refused [to stop]; Finskiy [sic] was thus arrested and taken to the police station. The court dismisses the defence’s argument that [the defendant] lawfully participated in a gathering requiring no prior authorisation, because the police’s actions were lawful and aimed to secure public order and public safety, since the entrepreneurs were blocking the market employees’ access to the building ... The court adopts a critical attitude in respect of the testimony of P., who is the defendant’s colleague and wants to help him, because this testimony is refuted by the bulk of the other evidence.” 24. An appeal decision in similar terms was issued in respect of Mr Khavantsev. 25. Thereafter, learning in late September 2009 that the court decisions in respect of certain other participants in the same events had been quashed on appeal in September 2009 (see paragraph 27 below), on 8 October 2009 Mr Finskiy, Mr Khavantsev and Mr Khripunov lodged applications under Article 30.12 of the CAO for review of the final judgments in respect of them. On 20 November 2009 the Deputy President of the Voronezh Regional Court upheld the lower courts’ decisions. In respect of each defendant, the reviewing judge stated as follows: “I dismiss the defence’s argument that the lower courts’ judges omitted to specify the type of public event in which the defendant had participated, the relevant regulations on such public events, and the specific details concerning the police’s orders to the defendant. It was established by the justice of the peace that the impugned event was a ‘gathering’ ...” 26. By judgments of 7 August 2009 the female defendants in the proceedings and Mr Annenkov were fined. 27. On 2, 8 and 10 September 2009 the District Court set aside the judgments in respect of the female defendants and Mr Annenkov. As regards Mr Annenkov, the appeal court held as follows: “Neither the record of the administrative offence nor the judgment contains references to specific circumstances or actions relating to the corpus delicti of the imputed offence (disobeying the lawful order of a police officer). In particular, neither of the two documents specifies what order was given to the defendant which was then not complied with. Moreover, the judgment does not indicate that the defendant did disobey a lawful order issued by a police officer.” In respect of Ms Guseva, the appeal court held as follows: “It is indicated in the record of the administrative offence that the defendant violated the procedure relating to the organisation and management of demonstrations, meetings and gatherings, and that during her arrest she disobeyed the lawful order of a police officer in relation to his work to ensure public order. The record does not specify what type of public event was being held, which above-mentioned procedure was violated, or what orders relating to maintaining public order during a public event were not complied with by the defendant.” In respect of Ms Suprunova, the appeal court held as follows: “The record of the administrative offence indicates that on 7 August 2009 the defendant violated the procedure relating to the organisation and management of demonstrations, meetings and gatherings, [and that] during her arrest she resisted the lawful order of a police officer and grabbed his uniform and tried to escape ... The record does not indicate what type of public event was being held, which applicable procedure the defendant allegedly violated, what orders relating to maintaining public order during such an event were issued to the defendant by the police, or which of those orders was not complied with.” In respect of Ms Zakharova, the appeal court held as follows: “Neither the record of the administrative offence nor the first-instance judgment refers to specific facts and actions forming part of the offence imputed to the defendant, namely disobeying the lawful order of a police officer ... or the specific order given to her which she failed to comply with. Moreover, it does not follow that what the defendant disobeyed was a lawful order given by a police officer. The record does not specify what the defendant’s violation of the procedure concerning the organisation and management of demonstrations, meetings and gatherings was, or what type of event was being held.” 28. The appeal court ordered the return of the case files to the relevant justice of the peace. Thereafter, the justice of the peace returned the files to the police station, apparently for the documents to be amended or the administrative-offence records to be redrafted. The files were not resubmitted for a retrial. 29. At 5.30 a.m. on 10 August 2009 the police arrested some twenty people at the market, including certain applicants such as Mr Buzov, Ms Garkavets, Ms Zuravleva, Ms Khavantseva and Ms Suprunova. 30. On 10 August 2009 a justice of the peace examined a case against Mr Buzov. The court heard Ms Khr., who stated that a group of people had impeded security guards as they tried to re-establish access to the market building. The police had then arrived and had taken some people to the police station. 31. It appears that during the hearing the applicant, who was assisted by counsel, first sought to have some other witnesses and police officers examined in open court. However, according to the Government, he then withdrew his application. 32. By a judgment of 10 August 2009 Mr Buzov was convicted of an offence under Article 19.3 of the CAO and was sentenced to ten days’ administrative detention. The justice of the peace found as follows: “[The defendant] disobeyed the police officers and did not comply with lawful orders to stop violating public order ... The defendant’s guilt is confirmed by: the administrative-offence record, the police officers’ reports and the written testimonies of witnesses ...” 33. According to the Government, Mr Buzov did not serve his sentence, as he was taken to the cardiology unit of a local hospital on the evening of 10 August 2009. 34. Mr Buzov appealed to the District Court, which held a hearing on 13 August 2009. It heard his lawyer and Ms Yef., who stated that she had seen the applicant making a video recording while he was surrounded by security guards who had torn his clothes. Colleagues had managed to “get him of the security guards’ grasp”, then the police had arrived and had started to push certain entrepreneurs aside. One of the security guards “had given an order to arrest [Mr Buzov]”. Mr Buzov had not disobeyed any orders and had not resisted arrest (see also paragraph 50 below). 35. By a decision of 13 August 2009 the appeal court upheld the judgment of 10 August 2009 in respect of the applicant. 36. Learning in late September 2009 that the court decisions in respect of certain other participants in the events on 10 August 2009 (and 7 August 2009) had been quashed on appeal (see paragraphs 27-28 above and paragraphs 38-39 below), the applicant and his counsel, Ms Gnezdilova, thought that they had a reasonable prospect of success in seeking a further review of the court decisions of 10 and 13 August 2009. In early October 2009 they lodged an application for review of those court decisions. They argued, inter alia, that: the lower courts had not specified what specific order the applicant had disobeyed or whether such an order was lawful under Russian law; the courts had not heard any officers or eyewitnesses who had witnessed the impugned reprehensible conduct on the part of the applicant; and the courts had not specified any particular actions on his part which constituted a breach of public order. 37. On 20 November 2009 the Deputy President of the Voronezh Regional Court upheld the lower courts’ decisions. The judge held as follows: “[The applicant] was part of the group of people who impeded market officials as they tried to gain access to their office building. The guards from a private security company intervened and a fight ensued between them and some participants. These participants did not respond to orders from police officers. The officers required [the applicant], who was one of the most active participants, to cease his unlawful conduct, but he did not respond to this order. Thereafter, he was taken to the police station.” 38. On 10 August 2009 a justice of the peace sentenced several female defendants to a fine. However, on 8 September 2009 the District Court heard appeals from them and set aside the judgments against them. 39. In respect of Ms Zhuravleva, it held as follows: “Article 28.2 of the CAO requires that a record of an administrative offence must describe, among other things, the factual elements relating to the offence and the circumstances in which it was committed. The record concerning the defendant specifies that ... she disobeyed the police officers, did not respond to their lawful requests to stop unlawfully violating the public order, and grabbed the officers’ uniforms while being escorted to the police vehicle, trying to push them away and run away. The record of the administrative offence does not specify which requests relating to public order were addressed to the defendant and were not complied with, or which actions of the applicant such requests related to. The deficiencies of the record make it impossible to establish the defendant’s liability for an administrative offence, and the record must be returned to the [police].” In respect of Ms Khavantseva and Ms Garkavets, the appeal court held as follows: “Neither the record of the administrative offence nor the justice of the peace’s judgment specifies how the defendant violated public order, or which specific order was given by the police in this connection but not complied with by her.” 40. It appears that the files were then returned to the police for the documents to be amended. The files were not resubmitted to the relevant justice of the peace for a retrial. 41. On 10 August 2009 Mr Annenkov’s wife (Ms Shatalova, also an applicant in the present case) lodged a criminal complaint with the Sovetskiy Investigations Unit. 42. Ms Shatalova alleged that Officer Ku., a senior officer at the Sovetskiy police station, had subjected her elderly husband to ill-treatment on 7 August 2009. She sought the institution of criminal proceedings against this officer. She stated as follows: at her request, her husband had arrived at the market in the early morning of 7 August 2009, where she had been doing “night shifts” with others, in order to bring her some warm clothes; Officer Ku. had struck a blow to his chest, causing the man to fall to the ground and sustain a head injury as he hit his head against the corner of a table. 43. Mr Annenkov was examined on 7 August 2009 by a neurosurgeon, a traumatology specialist and a therapist, who concluded that he had a contused wound on his head measuring 6 cm by 0.3 cm by 0.5 cm, some swelling on his upper right arm, and some other injuries (this part of the certificate is not legible). In her submissions before the Court the applicant’s lawyer alleged that Mr Annenkov had sustained a rib fracture. She maintained this assertion following communication of the case to the Government; the latter did not comment on this matter. 44. Unspecified officials carried out an inquiry between 10 and 18 August 2009, looking into whether any police officers had committed the offence of abuse of power (defined at the time as “actions manifestly outside the scope of official duties, causing a significant violation of one’s rights or legitimate interests”), an offence under Article 286 of the Criminal Code. 45. Three other applicants (Ms Guseva, Ms Suprunova and Ms Zakharova) also sought medical assistance on 8 August 2009. Ms Suprunova was diagnosed with concussion and soft-tissue bruises on her head and right arm. Ms Zakharova was diagnosed with soft-tissue bruises on her head and right shoulder. Ms Guseva was examined by a forensic expert, who concluded that she had bruises on the front upper part of her right arm (measuring 2.5 cm by 2 cm, and 2.4 cm by 1.9 cm) and a smaller one on the inner part of her right arm, abrasions on her right and left hip measuring 9 cm by 8.5 cm and 8 cm by 7.5 cm respectively, and abrasions on her right and left ankle joints measuring 6 cm by 3 cm and 2 cm by 1.3 cm respectively. 46. It appears that on an unspecified date Ms Suprunova, Ms Zakharova and Ms Guseva were heard in the context of the pre-investigation inquiry regarding Mr Annenkov. 47. Ms Zakharova stated that she had arrived at the market early on the morning of 7 August 2009 and had seen a police officer dragging Ms Guseva. She had protested to Officer Ku., who had then pushed her. She had fallen to the ground, hitting her shoulder and the back of her head against wooden objects on the ground. 48. Ms Suprunova stated that Officer Ku. had ordered “Take this one” and had started to pull her hair and hands, but other entrepreneurs had tried to shield her. 49. Ms Guseva stated that she had tried to shield Ms Suprunova from Officer Ku., who was pulling her hair. Officer Ku. and Officer Kh. had pushed Ms Guseva against a wall, causing her to fall to the ground and lose consciousness. She had then been dragged along the ground by her hands, and had been kicked in the back by one of the officers as she was placed in the police car. 50. Ms Yef., the applicants’ colleague, made a written statement that in the early morning of 7 August 2009 some thirty people had been at the market. Upon being alerted to the arrival of the police, she had gone out and seen some sixteen police officers, including Officer Ku., a senior officer, who was giving orders and indicating that the officers should “Take this one” or something similar. She had seen an officer twisting Ms Suprunova’s arms and Ms Guseva being dragged along the ground. Then she had seen Mr Annenkov ask Officer Ku. “What are you doing?”, and Officer Ku. had suddenly hit him in the chest, causing Mr Annenkov to fall to the ground and hit against the top of a table. Mr Annenkov had fainted. Officer Ku. had then kicked him on the leg and ordered “Take this one”. 51. Officer Ku. made the following written statement during the inquiry: “On 6 August 2009 the police station received information that in the early morning of 7 August a group of three hundred people might take violent action in order to take possession of the market. At 5.45 a.m. some thirty officers under my supervision arrived at the market to prevent disorder and unlawful actions. We saw some twenty people outside the building who were holding a meeting, chanting slogans and shouting about the regional prosecutor and the governor. The entrepreneurs had previously been issued with warnings against unlawful actions on their part. Suddenly, some five women started to shout and call for help, grabbing our uniforms. We arrested some thirteen people, including the most active perpetrators; all of them resisted during the arrest ... We did use physical force against some people, namely sambo fighting techniques such as twisting hands behind backs. None of the officers, including myself, inflicted any blows ...” 52. On 19 August 2009 an investigator issued a decision refusing to institute criminal proceedings, referring to the statements of several officers, including Officer Ku., and the testimonies of Mr Annenkov, Ms Shatalova, Ms Zakharova and Ms Suprunova. 53. It appears that the refusal of 19 August 2009 was then overruled for unspecified reasons and the inquiry was resumed. Written statements were obtained from some other participants in the gathering. Officer Kh. was also heard and he confirmed Officer Ku.’s earlier statement. 54. On 7 September 2009 the investigator issued a new refusal to institute criminal proceedings against Officer Ku., Officer Kh. or other officers. Having summarised the above testimonies, he concluded as follows: “No sufficient and objective data could be gathered during the inquiry to show that any police officers had committed any criminal offence ... The grievances presented in the complaints are refuted by the testimonies from the officers ... Injuries could have been sustained during the arrest procedure owing to the resistance displayed to the police officers (such resistance later being confirmed by the prosecution for the administrative offences). Furthermore, in view of the important and irremediable inconsistencies in various testimonies, there is no possibility of drawing a truthful conclusion regarding the commission of a criminal offence by Ku., Kh. or others ...” 55. For unspecified reasons, a new refusal to prosecute was issued on 1 October 2009. It was then overruled on 7 October 2009 by the deputy director of the District Investigations Department. He indicated that it was necessary to: assess the available court decisions regarding administrative offences concerning the events on 7 August 2009; identify and interview people who had been kept with the arrested people at the police station; identify and interview all police officers who had been present at the station and had compiled administrative-offence files against the arrested entrepreneurs; and identify and interview all the officers who had been on duty on that date and had been present at the market. 56. Four applicants (Mr Annenkov, Ms Suprunova, Ms Guseva and Ms Zakharova) sought judicial review in respect of the refusal dated 1 October 2009. They learnt at a hearing on 19 October 2009 that the refusal had already been overruled. The case was therefore discontinued. 57. A new refusal was issued on 9 November 2009. 58. On 22 December 2009 the Regional Investigations Department set aside the refusal of 9 November 2009 because it contained an insufficient assessment of the factual circumstances, no plausible explanation for the applicants’ injuries, and no assessment of the legality of the police’s actions. 59. Being unaware of the above decision, one of the applicants sought judicial review of the refusal to prosecute dated 9 November 2009. On 9 November 2010 the District Court discontinued the proceedings because the supervising authority had overruled the impugned refusal decision. 60. According to the Government, a new refusal to prosecute was issued on 19 June 2012. It was overruled on 5 October 2012 by the district prosecutor’s office. Thereafter, a criminal case was opened under Article 286 of the Criminal Code. Apparently, Mr Annenkov and Ms Suprunova at least were interviewed again by an investigator. Mr Annenkov also had a formal confrontation procedure with an unspecified witness who had allegedly seen the applicant stumble and fall to the ground by himself on 7 August 2009.