POLIKHOVICH v. RUSSIA - 62630/13 (Judgment : Article 3 - Prohibition of torture : Third Section) [2018] ECHR 109 (30 January 2018)

In the case of Polikhovich v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena Jäderblom, President,
Luis López Guerra,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 9 January 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 62630/13 and 5562/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Aleksey Alekseyevich Polikhovich ("the applicant"), on 24 September 2013 and 19 December 2014 respectively.

2. The applicant was represented by Mr D.V. Agranovskiy, a lawyer practising in Elektrostal, and Ms I.V. Khrunova, a lawyer practising in Kazan. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant complained about his prosecution and conviction for participation in acts of mass disorder. He submitted that his pre-trial detention had not been based on relevant and sufficient reasons. He also alleged that the conditions of transfer from his remand prison to the court-�house and back, as well as his confinement in glass cabins in the courtrooms, had amounted to inhuman and degrading treatment. The applicant further complained of a violation of his right to freedom of expression and his right to freedom of peaceful assembly.

4. On 19 December 2013 and 20 April 2015 the applications were communicated to the Government. The applications were granted priority under Rule 41 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1990 and lived in Moscow until his arrest.

A. Demonstration of 6 May 2012

6. The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties' submissions on the circumstances directly relevant to the present case are set out below.

7. On 6 May 2012 a public demonstration entitled the "March of Millions" was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square, which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it became apparent that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd the police cordon forced the protestors to remain within the barriers; there were numerous clashes between the two sides. At 5.30 p.m. the police ordered the meeting to finish early and began to disperse the participants. It took them about two hours to clear the square.

8. On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.

B. The applicant's arrest and pre-trial detention

9. At the time of his arrest the applicant was a second-year student at the Moscow University of Social Studies and worked part-time as a courier for an insurance company. According to him, on 6 May 2012 he arrived at Kaluzhskaya Square to take part in the march and walked with other participants to Bolotnaya Square. Upon arrival there he discovered that the police cordon had blocked access to the square. When passage to the stage of the rally taking place along the embankment was opened, the applicant went in that direction. The police started to disperse the protesters, using excessive force and beating them with truncheons. In response, the protesters dragged metal barriers in place to protect themselves from the police. At one point the applicant observed a protester in a green T-shirt, who five or six police officers were holding and beating with truncheons. He grabbed the protester and pulled him back, trying to protect him from the blows. The applicant was later arrested by the police and taken to a police station before being released shortly after. After the events in question he continued to live at his usual address and pursue his studies.

10. On 26 July 2012 the applicant was arrested on suspicion of having participated in acts of mass disorder on 6 May 2012.

11. On 27 July 2012 the Basmannyy District Court ordered that the applicant be placed in pre-trial detention until 26 September 2012. It referred to the gravity of the charges and information about the applicant's character, including a report by Moscow Police's chief of department at the Centre for Counter-Extremism. According to that report, the applicant was an active member of organisations of a destructive character. If he were to stay at liberty, he planned to threaten witnesses, abscond and obstruct the investigation. The court concluded that those circumstances gave sufficient grounds to believe that the applicant was likely to flee to avoid the investigation and trial, destroy evidence or otherwise obstruct the investigation of the criminal case, which was still at an initial stage.

12. On 1 August 2012 charges were brought against the applicant under Article 212 § 2 (participation in acts of mass disorder accompanied by violence). He was accused, in particular, of resisting police officers by pushing them away when they were arresting other protestors and by trying to liberate the latter.

13. On 27 August 2012 the Moscow City Court upheld the detention order of 27 July 2012.

14. On 24 September 2012 the Basmannyy District Court examined an application from the investigator for an extension of the applicant's pre-trial detention. The applicant asked for the preventive measure to be changed to house arrest, a written undertaking not to leave a specified place, bail or personal guarantees. On the same day the District Court granted the investigator's application and extended the applicant's detention until 6 November 2012. It considered that the circumstances justifying the detention order had not changed.

15. On 1 October 2012 Police Officer T. identified the applicant during an identification parade as a participant in mass disorder who had used violence against him. In particular, when T. and other officers had been arresting a protester, the applicant had grabbed his hand and pulled it off the protestor, thereby causing the police officer pain. Another police officer, L., also identified the applicant as a participant in acts of mass disorder who had tried to prevent the police arresting another protestor.

16. On 22 October 2012 the Moscow City Court dismissed the applicant's appeal against the extension order of 24 September 2012.

17. On 29 October 2012 the Basmannyy District Court granted an extension of the applicant's detention until 6 March 2013, essentially on the same grounds as earlier, noting that the circumstances justifying the detention order had not changed. In particular, it dismissed an objection from the applicant to the use of the operational-search reports concerning his character and rejected his contesting of the alleged membership of any organisations of a destructive nature.

18. On 15 November and 21 December 2012 the charges against the applicant were reformulated. It was stated that the applicant, who had been wearing a surgical mask to conceal his face, had used violence against the police while trying to liberate protestors who had been arrested and that he had pushed police officers away. In particular, he had grabbed Officer T.'s hand and pulled it off a protester, thereby preventing his arrest. He had also built a line of metal barriers to block the police and had tried to repel the police with them. The applicant's alleged offences were classified additionally under Article 318 § 1 of the Criminal Code (use of violence against a public official).

19. On 5 March 2013 the Basmannyy District Court granted a new extension of the applicant's detention, until 6 July 2013, essentially on the same grounds as before. On 17 April 2013 the Moscow City Court upheld the extension order.

20. On 24 May 2013 the applicant's criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges.

21. On 6 June 2013 that court granted another extension of the applicant's detention, until 24 November 2013. The decision concerned eleven defendants. Along with the gravity of the charges, the court based its decision on the findings that "the reasons which initially warranted the detention have not changed" and that "no other measures of restraint would secure the aims and goals of the judicial proceedings". The applicant's request for an alternative preventive measure was dismissed on the grounds that no other measure could secure the proper course of justice in the case. The Moscow City Court upheld the extension order on 2 July 2013.

22. On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of nine defendants, including the applicant. It ordered their detention until 24 February 2014 on the grounds of the gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order.

C. Conditions of the applicant's detention

23. The applicant was held in IZ-77/2 for the whole period of his pre-trial detention from 4 September 2012. According to him, the conditions of his detention had been poor. The applicant referred to cases against Russia in which the Court had previously found a breach of Article 3 because of overcrowding in IZ-77/2 in 2004-2005 (see Lind v. Russia, no. 25664/05, §§ 42 and 58-63, 6 December 2007; Zentsov and Others v. Russia, no. 35297/05, §§ 25-29 and 40-44, 23 October 2012; and Vyatkin v. Russia, no. 18813/06, §§ 26-�27 and 38-43, 11 April 2013). The applicant submitted that his conditions of detention had been similar.

D. Transfer between the detention centre and the court-house

24. The applicant's description of the conditions of detention during his transfer from the remand prison to court and back and the Government's submissions in that regard were identical to those in the case of Yaroslav Belousov (cited above, §§ 69-73).

25. As regards the conditions of detention in the convoy room of the Moscow City Court, the applicant submitted that it was poorly lit and that access to the toilet was limited to once an hour. In addition, he had been required to strip naked and to perform sit-ups during the body search conducted in the convoy room.

E. Conditions in the courtroom

26. On 6 June 2013 court proceedings began in hearing room no. 338 at the Moscow City Court, moving at the end of July 2013 to hearing room no. 635. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued at the Nikulinskiy District Court of Moscow in hearing room no. 303, while in January and February 2014 they took place at the Zamoskvoretskiy District Court in hearing room no. 410. Those hearing rooms were equipped with metal cages in which nine defendants (seven from 19 December 2013), including the applicant, sat during the hearings.

27. For a detailed description of the conditions in those hearing rooms see Yaroslav Belousov (cited above, §§ 74-77).

F. The applicant's trial

28. On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participation in acts of mass disorder and committing acts of violence against police officers. On 18 June 2013 the same court began the trial on the merits.

29. On 5 September 2013 Police Officer T., the alleged victim of the applicant's assault, was examined as a witness. He testified that the applicant had impeded him and two other police officers from arresting a protester by grabbing T.'s hand and pushing the officers away. The applicant had caused him pain but had not inflicted any injuries. During the hearing the applicant and his lawyers applied to deprive T. of victim status because no harm had been caused to him, but the court refused that request as unsubstantiated.

30. On 21 February 2014 the Zamoskvoretsky District Court of Moscow found the applicant guilty as charged. It held, in particular, as follows:

"Between 4 p.m. and 8 p.m. on 6 May 2012 ... at Bolotnaya Square ... unidentified persons ... called those present [at the venue] to move outside the agreed meeting venue, to defy the lawful orders of the police ..., to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [and] the destruction of property.

On the same day at 5 p.m. at the latest [the defendants] acquired the criminal intent to participate in mass disorder and to use violence against ... police officers ...

Moreover ... the participants of the acts of mass disorder threw chunks of tarmac, stones, sticks and other objects at the police ... which hit them on various parts of their body, and [the defendants] ... [who] participated in the acts of mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force which was not a danger to the life or health of those [officials] ...

[The applicant] ... who was wearing a surgical mask to hide his face, together with unidentified persons ... tried to liberate those arrested by the police for a breach of public order and pushed the police officers away ...

... [the applicant] used violence against Police Officer [T.] which did not endanger his life or health ...

[The applicant] ... from 5 p.m. to 9.40 p.m. ... when unidentified participants of acts of mass disorder tried to break the police cordon, acting intentionally and using force, grabbed [T.'s] hand and then pulled it off the person whom [T.] was arresting, thus impeding his apprehension, which caused [T.] pain.

In addition, [the applicant] together with unidentified persons ... built a line of metal barriers blocking the police's movements, and ... tried to repel the line of police officers ... with the help of those barriers.

[The applicant] pleaded not guilty and testified that ... he had decided to attend the public gathering on 6 May 2012 ... for the purposes of personal security he wore a surgical mask ... [The applicant] was at the bridge when a blockage occurred. He did not see what was happening, but at one point ... he had been able to proceed with the flow of people towards the stage. There [the applicant] saw the mass beating of people by police officers and participants of the rally starting to bring forward metal barriers ... and to put them close to the police officers, trying to protect themselves from the latter. [The applicant] was standing close to the barriers, taking his hands off when the police officers used their truncheons to hit over the barriers. Then ... [the applicant] saw a group of five or six police officers who were trying to seize a young man in a green T-shirt. They hit the man with their truncheons, and [the applicant], considering that the man was in danger because the police actions were unlawful, tried to snatch him from the officers' hands. He grasped the young man's waistband, pulled it and turned his back to protect him from the truncheon blows. [The applicant] finds it conceivable that in this turmoil he might unintentionally have pushed someone and asks for attention to be paid to [T.'s] statements that the latter did not feel any pain. Then [the applicant] was arrested and taken to a police vehicle.

... the court considers the [defendants'] arguments that they were protecting somebody from police officers or happened to be victims of the police's use of force as farfetched and aimed at the mitigation of their responsibility ..."

31. The applicant was sentenced to three years and six months' imprisonment, calculated on the basis of a three-year prison term under Article 212 § 2 of the Criminal Code, partly concurrent with a term of one year and three months under Article 318 § 1. The applicant's pre-trial detention counted towards the prison sentence.

32. The applicant appealed. He complained that the same acts imputed to him had been classified under both Article 212 and Article 318 of the Criminal Code. He insisted that he had not used violence against T. because the latter had not suffered any pain or injuries.

33. On 20 June 2014 the Moscow City Court upheld the first-instance judgment.

II. RELEVANT DOMESTIC LAW AND PRACTICE

34. The Criminal Code of the Russian Federation provides as follows:

Article 212 Mass disorder

"1. The organisation of mass disorder, accompanied by violence, riot, arson, destruction of property, the use of firearms, explosives and explosive devices, as well by armed resistance to a public official, shall be punishable by four to ten years' deprivation of liberty.

2. Participation in the types of mass disorder provided for by paragraph 1 of this Article shall be punishable by three to eight years' deprivation of liberty.

3. The instigation of the acts of mass disorder provided for by paragraph 1 of this Article, or the instigation of participation in such acts, or the instigation of violence against citizens, shall be punishable by a restriction of liberty for up to two years, or community service for up to two years, or deprivation of liberty for the same term."

Article 318 Use of violence against a public official

"1. The use of violence which does not endanger life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of up to 200,000 roubles or an equivalent of the convicted person's wages for 18 months, or community service for up to five years, or up to five years' deprivation of liberty ..."

35. For a summary of the relevant domestic law provisions governing pre-�trial detention and for the practice of the domestic courts in such matters see the case of Zherebin v. Russia (no. 51445/09, §§ 16-25, 24 March 2016).

THE LAW

I. JOINDER OF THE APPLICATIONS

36. Given their common factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION DURING PRE-TRIAL DETENTION

37. The applicant complained under Article 3 of the Convention about the allegedly poor conditions of his detention in IZ-77/2, in the convoy room at the Moscow City Court and during transfers to and from the prison. Article 3 of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

38. The Government submitted that the applicant had failed to provide specific details about the conditions of his detention in the remand prison; he had merely alleged that they had been inhuman. They further stated that the applicant had been held in cells that had allowed him about four square metres of personal space during the whole period of his detention. As regards the complaint about the conditions of detention in the convoy room of Moscow City Court, the Government argued that it did not contain sufficient details.

39. The Court notes that in his initial application the applicant did not describe the conditions of his detention in the IZ-77/2 remand prison. He submitted that the Court had found a violation of Article 3 of the Convention on that account in a number of cases against Russia. In his subsequent observations the applicant did not contest the argument that he had had four square metres of personal space in the cells during his detention and did not provide specific details about other aspects of the physical conditions at the prison, for example, the lighting, ventilation or sanitary conditions. The Court thus considers that the applicant was not subjected to severe overcrowding which could in itself have led to suffering incompatible with Article 3 of the Convention, as was found to be the situation in the cases against Russia that the applicant referred to. In the absence of other grievances, the Court is not in a position to rule that the conditions of the applicant's detention amounted to inhuman or degrading treatment (see, mutatis mutandis, Topal v. the Republic of Moldova (dec.), no. 37509/05, §§ 37-38, 18 March 2014). It follows that this complaint is manifestly ill-�founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.

40. The Court further notes that the complaint about the conditions during the prison transfer, including those in the convoy room at the Moscow City Court, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

41. The applicant alleged that his transfers between the remand prison and court had amounted to inhuman and degrading treatment. He complained about the frequency and length of the transfers, of appalling conditions in the convoy room and police vans, and of the intensity of the schedule, which had not left him sufficient time to sleep. The applicant argued that the combination of the above factors had led to physical exhaustion and mental distress.

42. The Government submitted that the applicant had been transferred seventy-seven times from prison to court and back during his trial. The applicant did not contest the number of transfers.

43. The Court examined these conditions of transfer to and from court, which were common to the applicant and his co-defendants, in the case of Yaroslav Belousov (cited above, §§ 103-11). It found that they amounted to inhuman and degrading treatment that were contrary to Article 3 of the Convention on account of a lack of sufficient rest and sleep on the days of court hearings; overcrowding and generally poor conditions in the convoy cells at the Moscow City Court; lengthy transfers between the remand prisons and the court; and poor conditions during the transfers. The Court sees no reason to depart from those findings in the present case. Accordingly, there has been a violation of Article 3 of the Convention in that respect.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF CONFINEMENT IN GLASS CABINS AND METAL CAGES DURING COURT HEARINGS

44. The applicant complained that his confinement in glass cabins and metal cages during the first-instance and appeal hearings had amounted to inhuman and degrading treatment. He relied on Article 3 of the Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

45. The Government submitted that the applicant's complaints under Article 3 of the Convention had been lodged out of time. They repeated their submissions made in Yaroslav Belousov (cited above, § 113) in that regard.

46. The Court reiterates that the confinement of the applicant in glass cabins and metal cages concerned two distinct periods with materially different conditions of detention, which cannot be regarded as a continuous situation for the purposes of Article 35 § 1 of the Convention (ibid., § 114).

47. As regards the first-instance trial, the Court notes that the alleged ill-�treatment by placement in glass cabins began on 6 June 2013 and ended on an unidentified date in the middle of September 2013, when the proceedings moved to the Nikulinskiy District Court of Moscow (see paragraph 26 above). The confinement in metal cages ceased on 21 February 2014, when the judgment was delivered. The Court has previously accepted that no remedy was available to applicants in relation to courtroom arrangements and that the six-month time-limit should be calculated from the date the alleged ill-�treatment ceased (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 87, ECHR 2014 (extracts)). The Court further notes that the applicant lodged the complaint about his placement in glass cabins on 24 September 2013, shortly after the proceedings moved to another courtroom, which was equipped with metal cages. The complaint about being placed in metal cages was not lodged until 19 December 2014, which is more than six months after the end of the trial.

48. The Court therefore considers that the applicant has missed the time-�limit for lodging his complaint under Article 3 of the Convention about the placement in metal cages. It must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Grishin v. Russia, no. 30983/02, § 83, 15 November 2007).

49. The Court further observes that the appeal hearing was held on 20 June 2014, while the applicant complained about the alleged ill-treatment on 19 December 2014. He has therefore complied with the six-month rule. Nonetheless, the applicant has not specified whether he was held in a glass cabin or a metal cage during the appeal hearing. He did not indicate the dimensions of the cabin or cage, the amount of space afforded to each defendant, or whether there was any ventilation or possibility to consult counsel. It follows that the applicant's complaint about the alleged ill-�treatment on account of the courtroom arrangements during the appeal hearing is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention (see, mutatis mutandis, Topal, cited above, §§ 37-38).

50. In contrast, the Court finds that the applicant has complied with the six-�month rule as regards the complaint about being placed in glass cabins during the first-instance hearing. It notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

51. The Court summarised the principles on confinement in glass cabins in Yaroslav Belousov (cited above, §§ 120-22). It examined the conditions of detention in hearing rooms nos. 338 and 635 at the Moscow City Court, which were common to the applicant and his co-�defendants, including Mr Belousov (ibid, §§ 123-28), and found a violation in respect of issues identical to those in the present case. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion. Accordingly, there has been a violation of Article 3 of the Convention on account of the conditions of detention in hearing room no. 338 at the Moscow City Court, but no violation of Article 3 as regards the conditions of detention in hearing room no. 635.

IV. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

52. The applicant complained under Article 5 § 1 of the Convention that his pre-trial detention had not been based on a "reasonable suspicion" that he had committed a criminal offence. He also complained that his pre-trial detention had not been justified by "relevant and sufficient reasons", as required by Article 5 § 3 of the Convention. Article 5 of the Convention, in so far as relevant, reads as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

A. Admissibility

53. As regards the alleged unlawfulness of the applicant's detention, the Court notes that the court which ordered that measure was the Basmannyy District Court of Moscow and that it subsequently extended it on several occasions. After the case had been sent for trial, the detention order was issued by the Zamoskvoretskiy District Court of Moscow. The domestic courts acted within their powers in making those decisions and there is nothing to suggest that they were invalid or unlawful under domestic law. Accordingly, the applicant's detention was imposed and extended in accordance with a procedure prescribed by law.

54. As regards the allegation that the applicant's detention was not based on a reasonable suspicion that he had committed criminal offences, his complaint under Article 5 § 1 of the Convention overlaps to a large extent with his complaint under Article 5 § 3 of a failure by the authorities to adduce relevant and sufficient reasons justifying the extensions of his detention pending the criminal proceedings. The Court reiterates that while Article 5 § 1 (c) of the Convention is mostly concerned with the existence of a lawful basis for detention within criminal proceedings, Article 5 § 3 of the Convention deals with the possible justification for such detention. Moreover, according to the Court's established case-law under the latter provision, the persistence of a reasonable suspicion is a sine qua non for the validity of continued detention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 87, ECHR 2016 (extracts)). The Court therefore deems it more appropriate to deal with this complaint under Article 5 § 3 of the Convention (see Kovyazin and Others v. Russia, nos. 13008/13 and 2 others, § 71, 17 September 2015; Taranenko v. Russia, no. 19554/05, § 46, 15 May 2014; and Khodorkovskiy v. Russia, no. 5829/04, § 165, 31 May 2011).

55. Furthermore, the Court finds that the applicant's complaint of a violation of Article 5 § 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this part of the application is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

56. The parties made essentially the same submissions under Article 5 of the Convention as in Kovyazin and Others (cited above, §§ 73-74). The relevant general principles applicable in this case were summarised by the Court in that judgment (ibid., §§ 75-78).

57. The period of detention to be taken into consideration in this case started on 26 July 2012, the date of the applicant's arrest, and ended on 21 February 2014, when he was convicted. Accordingly, the period in question is one year and seven months. Having regard to the considerable length of detention in the light of the presumption in favour of release, the Court finds that the Russian authorities were required to put forward very weighty reasons for maintaining that measure against the applicant.

58. It can be seen from the applicant's detention orders and the Government's observations that the primary reason for his detention was the gravity of the charges. The domestic courts considered that the applicant, faced with the risk of prison, was likely to abscond, influence witnesses, or interfere with the administration of justice. In addition, the domestic courts referred to Moscow Police's operational-search reports that the applicant was an active member of organisations "of a destructive nature" and that there was therefore a risk of his absconding, threatening witnesses and obstructing justice.

59. The Court notes that the applicant denied membership of organisations of a destructive nature. Moreover, he contested the use of the above-mentioned reports during the proceedings for the extension of his pre-trial detention (see paragraph 17 above). The Court finds that those reports were not assessed in an adversarial procedure and the domestic courts' reference to them was so brief and vague that it remains unclear whether they actually had access to them or any related material. Accordingly, the content, veracity and the very existence of the relevant operational-search materials has not been demonstrated. The Court is therefore unable to accept the fact that they were taken into account when assessing the applicant's character or that they could be used as a basis for decisions on his detention.

60. The Court has previously examined similar complaints lodged by the applicant's co-defendants and found a violation of their rights set out in Article 5 § 3 of the Convention (see Kovyazin and Others, cited above, §§ 82-�94, and Yaroslav Belousov, cited above, §§ 133-38). The Court noted, in particular, the domestic courts' reliance on the gravity of the charges as the main factor for the assessment of the potential to abscond, reoffend or obstruct the course of justice, and their reluctance to pay proper attention to a discussion of each applicant's personal situation or to have proper regard to factors pointing in favour of release. It also noted the use of collective detention orders, without a case-by-case assessment of the grounds for detention, in respect of each co-�defendant and a failure to thoroughly examine the possibility of applying a less rigid measure of restraint, such as bail.

61. Having regard to the material in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Indeed, the specific offences imputed to the applicant - resisting police officers, using metal barriers to obstruct the police and trying to break through the police cordon - may have initially warranted his pre-trial detention. However, with the passage of time the nature and the seriousness of the offences as the ground for the applicant's continued detention inevitably became less and less relevant (see Kovyazin and Others, cited above, § 85, and Artemov v. Russia, no. 14945/03, § 75, 3 April 2014). The Court further notes that the applicant's detention was extended by the same collective orders as those of his co-�defendants, without any individual assessment of his situation (ibid., §§ 92-93).

62. There has accordingly been a violation of Article 5 § 3 of the Convention.

V. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

63. The applicant alleged that there had been a violation of his rights to freedom of expression and to freedom of peaceful assembly. He complained, in particular, that disruptive security measures had been implemented at the site of the meeting at Bolotnaya Square. He further argued that his ensuing prosecution and criminal conviction for participation in acts of mass disorder had been arbitrary and disproportionate. The applicant relied on Articles 10 and 11 of the Convention, which read as follows:

Article 10

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Article 11

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

A. Admissibility

64. The Government alleged that the applicant had not brought any complaints before the domestic courts about the general actions of the police to safeguard public order during the assembly. They therefore asked the Court to declare this part of the application inadmissible on the grounds of a failure to exhaust domestic remedies or comply with the six-month time-limit.

65. The applicant contended that he had dispatched the application within six months of his conviction becoming final. He had therefore complied with the admissibility criteria for this complaint.

66. The Court observes that the applicant in the present case was convicted of perpetrating acts of mass disorder, which were the acts which interrupted the assembly. Attribution of responsibility for those acts was therefore a central question in the determination of the applicant's criminal charges. In those circumstances, his complaint about the authorities' role in the occurrence of the disorder is inseparable from that concerning the lack of justification for his criminal liability. For that reason, the Court is not required to assess the authorities' alleged failure to discharge their positive obligation in respect of the conduct of the assembly at Bolotnaya Square as a separate issue under Article 11 of the Convention. It will examine whether the measures taken against the applicant personally complied with that provision in the light of all the material submitted by the parties concerning the planning, conduct and dispersal of the assembly (see Yaroslav Belousov, cited above, § 158, and Frumkin v. Russia, no. 74568/12, §§ 100-01 and 134, 5 January 2016, where a separate issue was distinguished in relation to a protester not accused of participation in acts of mass disorder). There is therefore no need to examine whether the applicant has complied with the admissibility criteria as regards the complaint about the general actions of the police in relation to the assembly.

67. The Court notes that the complaint about the applicant's prosecution and criminal conviction, lodged under Articles 10 and 11 of the Convention, is not manifestly ill-�founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

68. The Government's submissions on the merits of the case were identical to those in Yaroslav Belousov (cited above, §§ 160-63).

69. The applicant submitted that he had not been able to leave the venue of the public event owing to a stampede. He insisted that he had behaved peacefully during the demonstration and the march; he had not intended to use force until he had clashed with the police, who had been acting in an overtly harsh manner. Moreover, the national courts had never analysed how the police had acted in intervening in a legitimate rally and dispersing the crowd. The courts had also not assessed to what extent the police had acted culpably in their clashes with the participants at the public event.

2. The Court's assessment

(a) The scope of the applicant's complaints

70. The Court notes that in the circumstances of the case, Article 10 of the Convention is to be regarded as a lex generalis in relation to Article 11 of the Convention, a lex specialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202, and Kasparov and Others v. Russia, no. 21613/07, §§ 82-�83, 3 October 2013). Accordingly, the Court will examine this complaint under Article 11 of the Convention.

71. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 of the Convention must, in the present case, also be considered in the light of Article 10 of the Convention. The protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (see Ezelin, cited above, § 37).

(b) Whether there has been an interference with the exercise of the right to freedom of peaceful assembly

72. The Court has previously held that the assembly at Bolotnaya Square on 6 May 2012 fell within the scope of Article 11 of the Convention (see Yaroslav Belousov, cited above, §§ 168-71). As regards the applicant personally, it does not transpire from the description of his offences that he was among those responsible for the initial acts of aggression which contributed to the deterioration of the assembly's initial peaceful character. Accordingly, he enjoyed the protection of Article 11 of the Convention. The Court also finds that the applicant's prosecution and criminal conviction for participation in mass disorder constituted an interference with the exercise of the freedom of assembly.

(c) Whether the interference was "prescribed by law", pursued a legitimate aim and was "necessary in a democratic society"

73. The parties made essentially the same submissions on the lawfulness of the interference as in Yaroslav Belousov (cited above, § 173). The Court sees no reason to reach a different conclusion in this case (ibid., §§ 174-75). It finds that the applicant's pre-trial detention and prosecution were lawful, and pursued the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others.

74. As to whether the applicant's criminal conviction was "necessary in a democratic society", the Court notes that he was found guilty of two criminal offences, namely participation in acts of mass disorder (Article 212 of the Criminal Code) and committing violent acts against a police officer (Article 318 of the Criminal Code). He was sentenced to three years and six months' imprisonment under those provisions for building a line of metal barriers and pulling another protestor away from a police officer, which did not endanger the latter's life or health, while participating in an authorised public assembly.

75. The Court reiterates that when individuals are involved in acts of violence the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of assembly, and the imposition of a sanction for such reprehensible acts would be considered to be compatible with the guarantees of Article 11 of the Convention (see Gülcü v. Turkey, no. 17526/10, § 116, 19 January 2016, and the cases cited therein). The Court notes that the applicant was convicted of grabbing the police officer's hand and pulling it off a protester, who was being arrested at the time. However, the domestic courts did not establish the particular circumstances of the applicant's behaviour and dismissed his arguments about excessive use of force by the police as unfounded. It appears that no attempts were made to find and question the protester who was the alleged victim of ill-treatment by the police and whom the applicant tried to protect. The courts nevertheless found that the applicant had indeed grabbed the police officer's hand and pulled it off a protester.

76. Even if it is assumed that the prison sentence of one year and three months under Article 318 of the Criminal Code for using violence against a public official was justified, it is noteworthy that it was more lenient than the partly concurrent three-year prison sentence for participation in acts of mass disorder. The main justification put forward by the Government for such a harsh sentence was the serious risk of civil unrest existing at the time, in particular that there was a threat to political stability and public order. The gravity of the punishment under Article 212 of the Criminal Code was thus attributable to the general context of the applicant's assault on the policeman (already imputed under Article 318 of the Code), not to the harm he thus inflicted. Regard being had to the other acts imputed to the applicant under Article 212, it transpires that his staying at the site of the rally and building a line of metal barriers against the advancing police accounted for an additional two years and three months to his prison term.

77. In assessing the severity of the sanction for participation in mass disorder, an important factor for the Court is that the criminal file did not suggest any pre-existing intention by the applicant to participate in such acts. Just as in Yaroslav Belousov (cited above, § 179), there is nothing in the case file to suggest that the applicant was among those responsible for the onset of clashes between the protesters and the police. As far as can be discerned from the indictment, he intervened in what he perceived to be police violence against another protester at the height of the clashes, when the police were already arresting protesters. His account of events, in so far as they concerned the arrest of another protester, was corroborated by the statements of Police Officer T. The Court also notes that there were no witnesses of the applicant handling the barriers and that he denied his involvement in that act, although he submitted that other protestors had indeed used them to protect themselves from the use of force by the police. The domestic courts did not examine to what extent the barriers could have been used, by the applicant or anyone else, to stay out of the scuffle.

78. The applicant's overall conduct therefore, although involving a certain degree of violence, was sporadic in nature and did not attain the degree of aggression which the Court has found in other cases to amount to violence calling for resolute measures, in particular the subsequent sentencing of protestors to lengthy prison terms (see, by contrast, Primov and Others v. Russia, no. 17391/06, §§ 156-63, 12 June 2014, and Osmani and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001). Given the applicant's minor role in the assembly and the fact he had an incidental involvement in the clashes, the Court does not consider that the risks referred to by the Government - potential civil unrest, political instability and a threat to public order - had any personal relation to him. While the Court does not endorse the applicant's violent behaviour and reiterates that the State authorities enjoy a wider margin of appreciation in sanctioning such actions (see Gülcü, cited above, § 116, and Taranenko, cited above, §§ 81-97), it considers that the reasons advanced by the Government could not justify a three-year prison sentence for participation in acts of mass disorder under Article 212 of the Criminal Code. The Court considers that there was no "pressing social need" to give him a sentence of that duration, in addition to sentencing him for the use of violence in the confrontation with the police officer.

79. It must be stressed, moreover, that the applicant's criminal conviction, and especially the severity of his sentence, must have had the effect of discouraging him and other opposition supporters, and the public at large, from attending demonstrations and, more generally, from participating in open political debate. The chilling effect of the sanction imposed on him was further amplified by the large-scale proceedings in the case, which attracted widespread media coverage.

80. In view of the severity of the sanction imposed on the applicant, the Court concludes that his criminal conviction was a measure that was disproportionate to the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others, and that it was therefore not necessary in a democratic society.

81. There has accordingly been a violation of Article 11 of the Convention.

VI. ALLEGED VIOLATIONS OF ARTICLES 6 AND 18 OF THE CONVENTION

82. The applicant alleged that he had not been given a fair hearing in the criminal proceedings, in breach of Article 6 of the Convention. He submitted that the courts had disregarded the arguments about and evidence of excessive use of force by the police and had convicted him solely on the basis of police officers' statements. The applicant further complained under Article 18 of the Convention that the security measures at the demonstration and his ensuing prosecution for criminal offences had been acts of reprisal for his expressing views critical of the authorities. Moreover, it had pursued the aim of discouraging public events led by opposition activists. Articles 6 and 18 of the Convention, in so far as relevant, provide as follows:

Article 6

"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

Article 18

"The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."

83. In their submissions under this head the parties reiterated their arguments as regards the alleged interference with the right to freedom of expression and freedom of assembly.

84. The Court notes that these complaints are linked to the complaints examined above under Article 11 of the Convention and must therefore likewise be declared admissible.

85. The Court has already held that the applicant's criminal conviction was not necessary in a democratic society, that the domestic courts did not establish the particular circumstances leading to the onset of the clashes between the protestors and the police, and did not look into the applicant's arguments about excessive use of force by the police (see paragraphs 77-78 above). It has also held that that had had the effect of preventing or discouraging him and others from participating in protest rallies and actively engaging in opposition politics (see paragraph 79 above). The Court has already found a violation of Article 11 of the Convention in that regard.

86. Having regard to those findings, the Court considers that it is not necessary to examine whether there has been a violation of Article 6 of the Convention or of Article 18 in conjunction with Article 11.

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

87. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

88. The applicant claimed 130,000 euros (EUR) in respect of non-�pecuniary damage.

89. The Government contested the claim as excessive.

90. The Court observes that it has found violations of Articles 3, 5 and 11 of the Convention in respect of the applicant. In those circumstances, the Court considers that the applicant's suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it awards the applicant EUR 12,500 in respect of non-�pecuniary damage.

91. Furthermore, the Court observes that although the applicant has already been released after serving his sentence, he might still face negative consequences resulting from his disproportionately severe criminal conviction. The obligation to comply with the present judgment would thus require the adoption of other measures in addition to the payment of the just satisfaction awarded by the Court, which is only designed to make reparation for such consequences of a violation that cannot otherwise be remedied (see Savriddin Dzhurayev v. Russia, no. 71386/10, § 252, ECHR 2013 (extracts). It will be thus for the respondent State to take appropriate measures to redress the effects of any past or future damage to the applicant as a result of his disproportionate sentencing, which the Court has found to be in breach of the Convention (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). In that context, the Court reiterates that while the respondent State in principle remains free to choose the means by which it will comply with this obligation, it is for the Committee of Ministers to assess whether those means are compatible with the conclusions set out in the Court's judgment and consistent with the approach adopted by the Convention organs in similar cases (see, for example, Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-�I, and the Resolution of the Committee of Ministers ResDH(2010)63 of 3 June 2010 on the execution of the judgment in Odabaşı and Koçak v. Turkey, no. 50959/99, 21 February 2006).

B. Costs and expenses

92. The applicant also claimed EUR 300 for the costs and expenses incurred before the Court.

93. The Government contested the applicant's claims for costs and expenses on the grounds that they were not based on a legal services agreement with his lawyer Ms Khrunova under which he would be obliged to pay the sums claimed.

94. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court observes that Ms Khrunova submitted written observations on the applicant's behalf as regards the alleged violations of Articles 3, 6, 10, 11 and 18 of the Convention, and that those complaints have been declared admissible. Regard being had to the documents in its possession and the above-mentioned criteria, the Court considers it reasonable to grant the claim and to award the applicant EUR 300 in respect of costs and expenses for the proceedings before the Court.

C. Default interest

95. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints raised under Article 3 of the Convention concerning the conditions of transfer and the placement in glass cabins in the courtrooms, and under Articles 5, 6, 10, 11 and 18 of the Convention admissible and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 3 of the Convention in respect of the conditions of transfer to and from court;

4. Holds that there has been a violation of Article 3 of the Convention on account of the confinement in a glass cabin in hearing room no. 338 at the Moscow City Court;

5. Holds that there has been no violation of Article 3 of the Convention on account of the confinement in a glass cabin in hearing room no. 635 at the Moscow City Court;

6. Holds that there has been a violation of Article 5 § 3 of the Convention;

7. Holds that there has been a violation of Article 11 of the Convention;

8. Holds that there is no need to examine the complaints under Articles 6 and 18 of the Convention;

9. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 300 (three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

10. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 30 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.

H.J.
F.A.

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You are here: BAILII >> Databases >> European Court of Human Rights >> POLIKHOVICH v. RUSSIA - 62630/13 (Judgment : Article 3 - Prohibition of torture : Third Section) [2018] ECHR 109 (30 January 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/109.html Cite as: ECLI:CE:ECHR:2018:0130JUD006263013, [2018] ECHR 109, CE:ECHR:2018:0130JUD006263013