The ECHR found a violation of the requirements of Article 5 § 3 of the Convention for the Protection of Rights and Fundamental Freedoms of the two applicants and of Article 11 of the Convention in respect of the second applicant.

Заголовок: The ECHR found a violation of the requirements of Article 5 § 3 of the Convention for the Protection of Righ Сведения: 2020-06-23 05:13:19

The ECHR judgment of November 19, 2019 in the case of Razvozzhayev v. The Russian Federation and Ukraine and Udaltsov v. The Russian Federation (application No. 75734/12 and two other applications).

In 2012, the applicants were assisted in preparing applications. Subsequently, the applications were consolidated and communicated by the Russian Federation.

The case successfully examined applications of conviction for organizing riots after clashes during a demonstration without sufficient verification of their own actions and intentions of the organizers. The case violated the requirements of Article 3, paragraph 3 of Article 5, Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (in respect of both applicants), Article 8 of the Convention (in respect of the first applicant), Article 1 of Protocol No. 1 to the Convention, Article 11 Convention (in respect of the second applicant). There are no violations of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (in respect of the second applicant).


Circumstances of the case


The present case concerns the dispersal by the police of a political rally of opposition activists organized by the second applicant and held in Moscow on Bolotnaya Square on May 6, 2012 (see Frumkin v. Russia, European Court judgment) dated January 5, 2016, complaint No. 74568/12). After these events, both applicants were convicted of participating in the organization of the riots.

The first applicant alleged that later, in October 2012, in Kiev he was abducted and ill-treated by unidentified persons (allegedly representatives of the Government of the Russian Federation, who acted with the tacit consent of the Ukrainian authorities). Subsequently, he was forcibly taken to the Russian Federation, where he was detained until he was transferred to the Investigative Committee of the Russian Federation.


QUESTIONS OF LAW


As regards compliance with Articles 3 and 5 of the Convention (procedural and legal aspects) (first applicant). (a) The jurisdiction of the respondent States (Article 1 of the Convention). Both respondent states had “jurisdiction” in respect of circumstances that occurred in their respective territories. As regards the alleged participation of representatives of the Russian Federation in the operation in Ukraine, a jurisdictional relationship with the Russian Federation was established on the basis of power and control, which was allegedly carried out by its representatives operating outside its borders.

(b) Merits. Since there was no evidence that the abductors acted on behalf of the authorities of the Russian Federation, or that the authorities of Ukraine actively or passively participated in the abduction, there was no reason to conclude that the authorities of any of the respondent States violated the substantive guarantees of Articles 3 and 5 of the Convention.

On the other hand, the applicant submitted a demonstrable argument about the abduction and ill-treatment, which he raised before the authorities of both respondent states. The main facts underlying the first applicant's complaint about the abduction were not disputed by the Government. However, none of the authorities of the respondent States conducted an effective investigation into his allegations.

(i) The Government of Ukraine. They initially refused to institute criminal proceedings after a surface audit, which (as they clearly confirmed) was not an effective investigation. Despite the fact that they later launched an investigation, his progress remained unknown.

(ii) The Government of the Russian Federation. Despite the absence of bodily harm, the first applicant could have submitted witness statements to compose a prima facie case of the abduction, which might have been accompanied by inhuman or degrading treatment during his return to the Russian Federation. By virtue of this circumstance, the authorities of the Russian Federation were under an obligation to conduct an investigation. If they could not take any practical measures due to the lack of territorial jurisdiction, they were obliged to demand assistance from the Ukrainian authorities. This has not been done. In any case, the abduction of the first applicant was allegedly given in the Russian Federation, and his deprivation of liberty and ill-treatment allegedly continued thereafter on the territory of the Russian Federation.

Thus, in the case there was a violation of Articles 3 and 5 of the Convention in the procedural and legal aspect, since neither the authorities of the Russian Federation nor the authorities of Ukraine took the necessary steps to verify the reliable allegations of the first applicant (to the extent that they related to their respective jurisdictions).


RESOLUTION


In the case, the authorities of both respondent states violated Articles 3 and 5 of the Convention (adopted unanimously).

Regarding compliance with Article 6 of the Convention (as regards the authorities of the Russian Federation). (a) Article 6 § 1 of the Convention regarding the admission as a witness of a former co-accused convicted after a transaction with an investigation (both applicants). The decision to separate the criminal proceedings in respect of the former co-accused (L.) was not accompanied by an assessment of opposing interests or the receipt of the applicants' comments in order to provide them with the opportunity to submit objections to the separation of cases. The reliability of this witness in the applicants' case was questionable given that he had to adhere to the testimony he had given in order to reduce his sentence when he was not bound by the oath of the witness. Moreover, the legislation of the Russian Federation clearly made res judicata effective for judicial decisions, even if they were adopted as part of expedited proceedings. Both L. and the courts of the Russian Federation were clearly interested in adhering to the conclusions reached in this context, despite the absence of an adversarial process.


RESOLUTION


In the case there was a violation of the requirements of Article 6 of the Convention (adopted unanimously).

(b) Paragraph 1 and subparagraphs “b” and “c” of Article 6 § 3 of the Convention in relation to detention in a glass cabin (first applicant). The use of a glass cabin for security purposes was not necessary due to any specific security risks or considerations of maintaining order in the courtroom, but was applied automatically to the first applicant, since he was subjected to a preventive measure in the form of imprisonment, and without any countervailing measures. This went on for more than five months during the trial in the trial court. This situation constituted a disproportionate restriction on the right of the accused to participate effectively in the proceedings and receive practical and effective legal assistance, and it inevitably had a negative impact on the fairness of the proceedings as a whole.


RESOLUTION


In the case there was a violation of the requirements of Article 6 of the Convention (adopted unanimously).

(c) Paragraph 1 and subparagraph “b” of paragraph 3 of Article 6 of the Convention in relation to the timetable for the hearings (first applicant). The cumulative effect of the exhaustion caused by lengthy transportation to and from court under unsatisfactory conditions and the provision of less than eight hours of rest, repeated four days a week for more than four months, was to seriously undermine the first applicant's ability to monitor the proceedings, make comments and notes, and give instructions to lawyers. Not enough attention was paid to the applicant's requirements for scheduling court hearings in such a way that it was not so intense. Consequently, the first applicant was not given sufficient opportunity to prepare a defense, which did not meet the requirements of a fair trial and equality of arms.


RESOLUTION


In the case there was a violation of the requirements of Article 6 of the Convention (adopted unanimously).

Regarding compliance with Article 11 of the Convention (in relation to the authorities of the Russian Federation). (a) Applicability. Article 11 of the Convention did not apply to rallies whose organizers and participants intended to resort to violence.

(i) The first applicant. The first applicant urged several people to break through the police cordon. Witnesses confirmed that he intended to do so. Given that the breakthrough of the cordon led to an escalation of violence at a key moment of the public event and triggered clashes between the protesters and the police, the applicant's deliberate actions that contributed to this went beyond the concept of “peaceful assembly”.


RESOLUTION


Article 11 of the Convention is not applicable in the present case.

(ii) The second applicant. The actions that were imputed to the second applicant (in particular, the call to start an “ongoing protest rally" at the place where the rally was to take place, as well as the creation of an illegal camp), did not indicate an intention to resort to violence. None of the witnesses in the course of the trial reported that the second applicant had participated in any violent acts or called for them; on the contrary, he insisted on a “strictly peaceful” form of behavior.


RESOLUTION


Article 11 of the Convention is applicable in the present case.

(b) Merits (proportionality). The second applicant’s conviction was based on the conclusion that he, as one of the organizers of the event, was responsible for the hopeless situation between the protesters and the police and that, moreover, holding a protest outside the designated perimeter and creating a long-term protest camp in the park were part of them plan.

The Court concludes that the punishment imposed on the second applicant was disproportionate in view of the following:

- the courts of the Russian Federation did not answer the question of whether the “political instability”, which the second applicant allegedly advocated, meant an element of violence in the form of riots or riots, as opposed to propagating political changes through peaceful means;

- since there was no evidence that the second applicant incited some protesters to commit violent acts, the mere fact that he was one of the organizers of the event was not a sufficient basis for holding him accountable for the actions of those present; in addition, the court decisions did not assess the extent to which the authorities themselves contributed to the deterioration of the peaceful nature of the assembly;

- the punishment imposed on the second applicant was severe (more than four years in prison), and his deterrent effect was rather enhanced not only by the fact that it was directed at a well-known public figure, but also by the scale of the case, which received wide publicity in the media.


RESOLUTION


There was a violation of Article 11 of the Convention in respect of the second applicant (accepted unanimously).

The Court also unanimously decided that in the case the authorities of the Russian Federation violated Article 5 § 3 of the Convention in respect of both applicants (detention, house arrest) and that there was no violation of Article 5 § 1 of the Convention in respect of the second applicant (House arrest). In addition, the Court unanimously decided that the authorities of the Russian Federation had violated Article 8 of the Convention in respect of the first applicant (transfer to a remote institution and refusal of permission to visit a sick mother or attend her funeral subsequently), as well as Article 1 of Protocol No. 1 to the Convention in respect of the second applicant (seizure of property).


COMPENSATION


In applying Article 41 of the Convention (non-pecuniary damage), the Court finds that in respect of violations of the articles:

(i) 3, 5 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention:

- the Ukrainian authorities are required to pay 4,000 euros to the first applicant;

- the authorities of the Russian Federation are obliged to pay 11,000 and 9,000 euros to the first and second applicants respectively;

(ii) 6 and 11 of the Convention, that there is no need to award additional amounts, since the legislation of the Russian Federation provides for the possibility of reviewing the case.

 

 

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