The decision of the ECHR of October 13, 2020 in the case "Zakharov and Varzhabetyan v. Russia" (Zakharov and Varzhabetyan v. Russia)" (aplications N 35880/14 and 75926/17).
In 2014 and 2017, the applicants were assisted in preparing aplications. Subsequently, the aplications were combined and communicated to the Russian Federation.
The case successfully dealt with aplications about the brutal actions of law enforcement officers against peaceful participants of a political rally on Bolotnaya Square in Moscow and the failure to conduct an effective investigation of these circumstances. The case involved a violation of the requirements of articles 3 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicants participated in a political rally on Bolotnaya Square in Moscow on May 6, 2012. Although the rally was allowed by the authorities and initially took place peacefully, it ended with clashes between law enforcement officers and protesters and was dispersed by the police. During the dispersal of the protesters, according to both applicants, despite their peaceful behavior, the police officers hit the applicants on the head with a rubber baton. The applicants unsuccessfully appealed against the refusal of the authorities of the Russian Federation to initiate a criminal case on this fact.
Regarding compliance with article 3 of the Convention (procedural and legal aspect). The events considered in the present case were the subject of a large-scale investigation in the Russian Federation, which resulted in the initiation of criminal cases, in which the organizers of a public event were convicted of mass riots, and a number of other persons were convicted of violent acts against police officers. At the same time, the purpose of these proceedings was not to assign responsibility for collisions and damage caused to the authorities of the Russian Federation or personally to specific employees of the internal affairs bodies. The participation of employees of the internal affairs bodies in these proceedings was limited to giving evidence as witnesses or victims about mass riots initiated by the protesters, and the courts of the Russian Federation did not investigate the actions of representatives of the internal affairs bodies against the protesters.
The circumstances of the present case clearly indicated that it was quite likely that there had been ill-treatment of participants in a public event. This should have been a reason for conducting an official investigation, even in the absence of individual applications or if they were submitted late to the relevant authorities. The investigative authorities of the Russian Federation had every opportunity to identify and immediately interrogate both applicants, as well as to take independent, meaningful and effective investigative measures aimed at clarifying the origin of the applicants ' injuries, identifying the perpetrators, for example, by requesting a list of internal affairs officers who took part in the event on Bolotnaya Square, interrogating internal affairs officers related to the incidents, identifying and interrogating other witnesses and medical staff, who dealt with the applicants.
However, the investigative authorities of the Russian Federation did not do any of the above when the problem was submitted for their consideration. Although they received several specific complaints, as well as information about the applicants ' injuries received from other sources, this amount of data was considered insufficient to conduct an investigation. The authorities of the Russian Federation did not indicate what actions were carried out during the internal audit, apart from a phone call to the first applicant. Thus, the authorities of the Russian Federation did not conduct an effective investigation capable of establishing whether the use of force by the employees of the internal affairs bodies was inevitable and proportional.
The case involved a violation of the requirements of article 3 of the Convention in its procedural and legal aspect (adopted unanimously).
Regarding compliance with article 3 of the Convention (substantive aspect). The present case is the first in which the European Court should consider individual complaints of ill-treatment by law enforcement officers during the dispersal of a rally on Bolotnaya Square in Moscow.
During the pre-investigation check carried out by the Authorities of the Russian Federation, the question of how exactly the applicants were injured was not clarified. The resolutions of the Investigative Committee of the Russian Federation indicated that police officers lawfully used force when detaining protesters who acted illegally and resisted them. Although the applicants were not detained and they were not accused of acts of violence, the investigator's general conclusions could be understood as implying that the police officers also used force against the applicants.
In view of the above, and noting the applicants 'consistent and detailed explanations about the origin of their injuries, which were confirmed by medical certificates, photographs or video materials, and also taking into account the failure to conduct an effective investigation into the applicants' complaints and, as a result, the absence of any alternative and convincing explanation of the origin of the applicants ' injuries, the European Court concluded that the injuries were caused to the applicants by police officers during the dispersal of a political rally.
The Court attached particular importance to the fact that the applicants were injured during the period when they were in the area of an operation carried out by law enforcement officers, during which force was used to prevent mass riots. The peaceful behavior of the applicants at the rally was never questioned. In this regard, the use of force against the applicants was not strictly necessary because of their own behavior, and, consequently, this treatment detracted from their human dignity. Moreover, the use of force against the applicants was not inevitable in the context of the suppression of mass riots.
The case involved a violation of the requirements of article 3 of the Convention in its substantive aspect (adopted unanimously).
Regarding compliance with article 11 of the Convention. The authorities of the Russian Federation did not provide an explanation as to why force was used against the applicants, if they were not detained and they did not participate in any acts of violence. Taking into account its conclusion that the use of force against the applicants was unnecessary and excessive in violation of the requirements of Article 3 of the Convention, the European Court also held that the alleged interference with the applicants ' right was not necessary in a democratic society within the meaning of Article 11, paragraph 2, of the Convention. Moreover, this interference could have a demotivating effect and negatively affect the intentions of the applicants and others to take part in similar public events.
The requirements of article 11 of the Convention were violated in the case (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded 16,000 and 16,900 euros to the first and second applicants, respectively, as compensation for non-pecuniary damage.