THIRD SECTION

DECISION

Application no. 29442/18 Sergey Yuryevich TIUNOV against Russia

The European Court of Human Rights (Third Section), sitting on 15 January 2019 as a Chamber composed of:

Vincent A. De Gaetano, President, Helen Keller, Dmitry Dedov, Alena Poláčková , Georgios A. Serghides , Jolien Schukking , María Elósegui , judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 29 May 2018,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Sergey Yuryevich Tiunov , is a Russian national, who was born in 1968 and lives in Yekaterinburg.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. Yekaterinburg town administration dismissed a Mr B. ’ s notification for a protest rally against Mr Navalnyy ’ s detention because notification for another rally to support Catalonia ’ s independence, at the same venue, had already been lodged. Both rallies were held as planned on 7 October 2017. The applicant participated in the first one.

4. On 10 October 2017 the police came to the applicant ’ s home and escorted him to the police station. Officer Y. compiled an offence record under Article 20.2 § 5 of the Code of Administrative Offences (CAO) because the applicant had taken part in an unlawful rally, in breach of the Public Events Act (PEA). The applicant spent the night in the police station and was released on 11 October 2017.

5. On 18 October 2017 the Lenininskiy District Court of Yekaterinburg held a hearing at which it heard officer Y. and the applicant. On the same day, the District Court convicted the applicant under Article 20.2 § 5 of the CAO and sentenced him to thirty hours of community work. The court relied on the offence record as a piece of adverse evidence confirming the defendant ’ s guilt. The court held as follows:

“As regards the sentencing, the court takes into account the nature of the offence, the defendant ’ s personality, his household and financial situation. The court accepts as mitigating circumstances the defendant ’ s partial admission of guilt and the fact that it was his first offence. There are no aggravating circumstances. Therefore, the court finds it necessary to apply a heavier sentence among those in Article 20.2 § 5 of the CAO, namely community work.”

6. On 6 December 2017 the Sverdlovsk Regional Court upheld the judgment.

7. The applicant did not serve the sentence of community work.

8 . In separate proceedings, a bailiff accused him of an offence under Article 20.25 of the CAO, which punishes non-compliance with a sentence imposed in a CAO case. By judgment of 10 April 2018 a justice of the peace convicted the applicant and sentenced him to three days of detention. The court relied on the offence record as a piece of adverse evidence confirming the defendant ’ s guilt. The applicant appealed. He argued, inter alia , that the sentence of community work was not in line with the position of the Constitutional Court and contradicted the International Labour Organisation (“ILO”) Conventions. On 18 April 2018 the Ordzhenikidzevskiy District Court of Yekaterinburg heard the bailiff and the applicant, and upheld the judgment. The appeal court stated that the judgment of 18 October 2017 and the sentence imposed by it had been subject to appeal review in that set of proceedings, and could not be challenged in this new proceedings relating to a new charge and facts.

B. Relevant domestic law and practice

1. Legislation on public events

9. For a summary of the applicable legislation, see Lashmankin and Others v. Russia , nos. 57818/09 and 14 others, §§ 216-300, 7 February 2017.

10. In addition, in its ruling no. 28 of 26 June 2018 the Plenary Supreme Court of Russia made the following findings relating to the context of offences concerning the regulations on public events:

(a) A right to freedom of peaceful assembly is protected under Article 31 of the Constitution and may be restricted by a federal law for the protection of the health, rights or legitimate interests of other people, the constitutional regime, morals, the national security, with regard to the principles of legal equality and proportionality of the acceptable restrictions of the above ‑ mentioned right (section 1 of the ruling). A sentence imposed in connection with the regulations on public events must be proportionate, just and correspond to the specific circumstances of a given case (section 38 of the ruling). A sentence of community work should be reasoned (section 38; see also paragraph 12 below).

(b) A public event as planned is deemed as approved, including for the purpose of an accusation for an offence under the CAO, where following receipt of an organiser ’ s notification for that event the competent public authority had not communicated – within three days – to the organiser any reasoned proposal for another venue or timing of the event, and the organiser has not evaded receipt of such proposal (section 10 of the ruling). Such proposal must be reasoned and must contain specific information confirming that it was clearly impossible, with due regard to the need for protecting compelling and actual public interests, to hold the event in the planned venue and/or with the planned timing (section 12 of the ruling).The proposal must contain a specific alternative venue or timing, which are suitable for reaching the legitimate goals of the event and which correspond to its social and political message (section 13 of the ruling; see also section 2.2 of ruling no. 4-P of 14 February 2013 by the Constitutional Court).

2. Penalty of community work

11. In February 2012 community work complemented the array of penalties under the federal Code of Administrative Offences and was prescribed as a penalty for offences relating to public assemblies (Articles 20.2 and 20.2.2 of the CAO). Subsequently, this penalty was extended to other offences, for instance:

- since June 2012, offences relating to blocking transport infrastructure (Article 20.18 of the CAO);

- since 2013, offences arising from the violation of the legislation relating to freedom of religion and on religious organisations (Article 5.26 § 2 of the CAO);

- since 2016, offences arising from non-payment of child support allowances or allowances to elderly parents (Article 5.35.1 of the CAO); relating to battery (Article 6.1.1 of the CAO), and petty theft (Article 7.27 of the CAO).

12 . In ruling no. 4-P of 14 February 2013 the Constitutional Court of Russia assessed certain aspects of the Russian legislation relating to public assemblies such as the Public Events Act and the CAO. The Constitutional Court held as follows:

(a) Article 20.2 of the CAO, as amended and in force since 2012, punished violations of the procedure relating to organising and running a public rally. This provision was designed by way of reference to other legislation. Thus, when assessing whether it was sufficiently precise, regard should be had to the position of the CAO within the relevant regulatory framework and other regulations setting out rules for one ’ s conduct or liability. Therefore, it is pertinent to rely on the provisions of the PEA.

(b) When deciding to extend the array of statutory penalties for administrative offences, it was incumbent on the federal legislator to avoid regulation that would diminish the fundamental rights and freedoms as protected by the Constitution. Taking this principle into consideration, the penalty of community work (in so far as it prescribes a person ’ s labour free of charge in the interest of the community) should be compatible with Article 37 of the Constitution protecting the constitutional freedom of labour and prohibiting forced labour , which is also indicated in Article 4 § 2 of the European Convention on fundamental rights and freedoms. In particular, under Article 4 § 3 of that Convention read with Article 5 all labour carried out by a person in lawful detention or released on probation cannot be considered as a breach of the prohibition of forced or compulsory labour . The above exception is not directly linked to the compulsion in respect of criminal suspects or defendants. Thus, as confirmed by the European Court ( Stummer v. Austria [GC], no. 37452/02, ECHR 2011), its scope of application should be determined with reference to the definition of compulsory (forced) labour contained in the documents of the International Labour Organisation . As indicated by the European Court, the Convention being a living instrument to be read “in the light of the notions currently prevailing in democratic States”. The imposition of some of labour as a penalty of a legally reprehensible conduct should be assessed in the light of Article 2 § 2 (c) of the ILO Convention no. 29 of 1930 (paragraph 17 above). As indicated in the 2007 ILO review (paragraphs 48 and 125) relating to that Convention and also the ILO Convention no. 105 of 1957, ( i ) Article 4 § 2 of the European Convention does not prohibit labour within the prison context or labour arising from a penalty imposed on a person, namely as a penalty for an offence such as penalty of community work. (ii) Such penalty should meet certain criteria: it should be a measure of punishment for an offence and be imposed by a court.

(c) The introduction of the penalty of community work in the CAO corresponds to the balance of private and public interests, and constitutes the State ’ s reaction to an offence in a way that does not interfere with a person ’ s pecuniary rights and does not entail (by contrast to administrative detention) deprivation of liberty. At the same time, this penalty does not constitute an unacceptable way of requiring forced labour . Thus, the penalty of community work is constitutional.

(d) However, taking note of Article 1 of the ILO Convention no. 105 of 1957 (paragraph 18 below) and that presently [in 2012 and 2013] the penalty of community work for offences was prescribed for offences relating to public assemblies, the Constitutional Court accepted that this penalty could be perceived as a means to oppress dissent, including political dissent, given that community work was a penalty for merely violating the procedure for public events, in particular where the violation of that procedure was a formalistic one and did not result in any health damage, any damage to property or any other similar circumstances. On that account, the relevant provisions of the law are not compatible with the Constitution.

(e) The above findings do not mean that it was never possible to impose the penalty of community work, including for offences relating to the violation of the procedure for public events. However, this penalty is only prescribed – in the current legislative framework – for offences relating to public events, this penalty may be ascribed a negative meaning in so far as inevitably it is perceived as a punishment for political activities. Thus, the relevant provisions of the law are not compatible with the Constitution. The Constitutional Court required the federal legislator to amend the legislation, and indicated that until such amendment the penalty of community work could only be imposed where the offence resulted in health damage, property damage or other similar consequences.

13 . As indicated in ruling no. 4-P of 14 February 2013, it was immediately and directly applicable.

14 . Pursuant to section 6 of the Federal Constitutional Law No. 1-FKZ of 21 July 1994, the legal acts ( решения ) issued by the Constitutional Court of Russia are binding on, inter alia , all legislative, executive and judicial bodies.

3. Administrative escorting and administrative arrest

15. For a summary of the applicable legislation, see Tsvetkova and Others v. Russia , nos. 54381/08 and 5 others , §§ 60-75, 10 April 2018, and Butkevich v. Russia , no. 5865/07 , §§ 33-36, 13 February 2018.

16. In addition, in its ruling no. 28 of 26 June 2018 the Plenary Supreme Court of Russia made the following findings in the context of offences concerning public events (section 40):

(a) The procedure of administrative escorting may be applied for the statutory purpose of compiling an offence record (here, under Article 20.2 of the CAO) and should be carried as promptly as possible.

(b) The procedure of administrative arrest may be applied in exceptional situations. This procedure may be applied in view of the person ’ s conduct showing that he or she may resume the unlawful activities; a reasonable suspicion that this person may evade court summons; where this person has no specific place of residence; where it is necessary to carry out measures requiring this person ’ s personal participation; fixation of evidence that is necessary for a thorough, full and objective examination of the case concerning an administrative charge.

(c) Each of those procedures may be applied where it is otherwise impossible to uncover the offence, to establish a perpetrator ’ s identity or to ensure a timely and correct examination of the case or execution of the penalty.

(d) At the preliminary stage of the trial a trial court must ascertain compliance with the procedure for compiling escorting and/or arrest record ( section 40 of ruling no. 28 of 26 June 2018 by the Plenary Supreme Court of Russia).

(e) Actions or inaction relating to the procedures of administrative escorting or arrest may be challenged by way of a court action under Chapter 22 of the Code of Administrative Procedure.

C. Other relevant material

17 . Article 2 § 2 (c) of the International Labour Organisation Convention (ILO) No. 29 of 1930 reads as follows:

“2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include ... (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; ...”

18 . Article 1 of the ILO Convention No. 105 of 1957 reads as follows:

“Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour ... (a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system; ...”

COMPLAINTS

19. The applicant complained

( i ) under Article 4 of the Convention that the penalty of community work imposed on him in relation to an administrative offence amounted to forced or compulsory labour ;

(ii) under Article 5 § 1 of the Convention that no written record of his deprivation of liberty from 10 to 11 April 2018 had been compiled, in breach of Article 27.4 of the CAO;

(iii) referring to Article 13 of the Convention, that in the absence of any prosecuting party the trial and appeal judges had presented the charges and adverse evidence in his CAO cases, and there had therefore been a violation of the impartiality requirement (to be examined under Article 6 § 1 of the Convention);

(iv) under Articles 10 and 11 of the Convention in relation to his deprivation of liberty on 10 and 11 April 2018 and the sentences of community work and administrative detention; the authorities ’ failure to approve the event or suggest another venue and/or timing.

The applicant also referred to issues under Articles 3, 6 § 3 (d), 7 of the Convention and Article 4 of Protocol No. 7 to the Convention.

THE LAW

A. Articles 4, 5 § 1, 6 § 1, 7, 10 and 11 of the Convention

20. The Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaints under Articles 4, 5 § 1, 6 § 1 (impartiality requirement), 7, 10 and 11 of the Convention and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. The remainder of the application

21. The Court has examined the remainder of the application as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to adjourn the examination of the applicant ’ s complaint s under Articles 4, 5 § 1, 6 § 1, 7, 10 and 11 of the Convention ;

Declares inadmissible the remainder of the application.

Done in English and notified in writing on 7 February 2019 .

Stephen Phillips Vincent A. De Gaetano Registrar President