THIRD SECTION

CASE OF SARSEMBAYEV v. RUSSIA

( Application no. 25238/08 )

JUDGMENT

STRASBOURG

1 September 2020

This judgment is final but it may be subject to editorial revision.

In the case of Sarsembayev v. Russia ,

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

Helen Keller, President, María Elósegui, Ana Maria Guerra Martins, judges, and Olga Chernishova , Deputy Section Registrar ,

Having regard to:

the application 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 Yerkezhan Toleshevich Sarsembayev (“the applicant”), on 27 March 2008;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the applicant ’ s forcible arrest, the lack of an effective investigation and the lack of an effective remedy and the complaint concerning the right to freedom of peaceful assembly, and to declare the remainder of the application inadmissible;

the parties ’ observations;

Having deliberated in private on 30 June 2020 ,

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

INTRODUCTION

The application concerns the applicant ’ s forcible arrest, the lack of an effective investigation into his complaint and his conviction for holding a static demonstration in the vicinity of a court building.

THE FACTS

1 . The applicant was born in 1968 and lives in Kazan. He was represented by Mr I.N. Sholokhov, a lawyer practising in Kazan.

2 . The Government were represented by Mr G. Matyushkin, Representative of the Russian Government before the European Court of Human Rights, and then by Mr M. Galperin, his successor in that office.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 10 October 2007 the applicant notified the Kazan Town Hall of the intention of a group of dormitory residents to organise a static demonstration (“picket”, пикетирование ) to defend their housing rights, between 9 a.m. and 11.30 a.m. on 18 October 2007, at Svoboda Square near the building of the Cabinet of Ministers of the Republic of Tatarstan, with around thirty people expected to attend.

5 . On 12 October 2007 the Town Hall refused to approve the demonstration at the proposed location , stating that heavy road traffic and a car park for government vehicles would put the participants ’ security in danger. They proposed that the demonstration be held inside the park at Svoboda Square or on the other side of Svoboda Square opposite a theatre.

6 . On an unspecified date the applicant notified the authorities that he disagreed with the proposal to change the location of the demonstration.

7 . Between 9 a.m. and 11.30 a.m. on 18 October 2007 the demonstration was held on the pavement close to Svoboda Square and the building of the Cabinet of Ministers opposite the Constitutional Court of the Republic of Tatarstan.

8 . At 3.45 p.m. the applicant was forcibly arrested at a bus stop, taken to the Yapeyeva police department in the Vakhitovskiy District of Kazan, charged with administrative offences under Article 20.2 § 2 (on account of holding the demonstration in the vicinity of the Constitutional Court of the Republic of Tatarstan) and Article 19.3 § 1 of the Code of Administrative Offences (“the CAO”) (on account of his “physical resistance” to police officers during his arrest), then released and taken to hospital.

9 . On 20 October 2007 the applicant lodged a criminal complaint about the use of force by the police. In accordance with Article 24 § 1 (2) of the Code of Criminal Procedure (lack of the constituent elements of a crime), the Kazan investigative committee at the prosecutor ’ s office of the Republic of Tatarstan refused to institute criminal proceedings against the police officers, concluding that the use of force had been lawful and not excessive. Its last refusal on 2 April 2008 was upheld by the domestic courts: first, the Vakhitovskiy District Court ’ s judgment of 8 April 2008 was upheld by the Supreme Court of the Republic of Tatarstan in a judgment of 29 April 2008 following appeals lodged by the applicant and the assistant prosecutor of Kazan; and then the Supreme Court of the Russian Federation rejected a request by the applicant for supervisory review of the above-mentioned judgments in a decision of 18 August 2008 .

10 . On 12 November 2007 the Justice of the Peace of the 4th Court Circuit of the Vakhitovskiy District of Kazan convicted the applicant of breaching the established procedure for conducting public assemblies (Article 20.2 § 2 of the CAO), on the grounds that the applicant had held the demonstration opposite the Constitutional Court of the Republic of Tatarstan, which was prohibited by law. The applicant was sentenced to a fine of 1,000 roubles (RUB).

11 . On 16 November 2007 the Justice of the Peace of the 5th Court Circuit of the Vakhitovskiy District of Kazan convicted the applicant of disobeying a lawful order of the police (Article 19.3 § 1 of the CAO) and sentenced him to a fine of RUB 800.

12 . The applicant appealed and on 23 and 30 November 2007 the Vakhitovskiy District Court of Kazan upheld the judgments of 12 and 16 November 2007 respectively.

13 . On 11 January 2008 the Supreme Court of the Republic of Tatarstan granted the applicant ’ s subsequent request for supervisory review of the judgments in the proceedings which had ended with his conviction under Article 19.3 § 1 of the CAO. It held that the record of the applicant ’ s administrative offence had not contained specific reasons for his arrest, that those reasons had not been established in the course of the administrative proceedings, and that the record of the applicant ’ s administrative arrest had not been in the case file; thus there had been no lawful grounds for arresting him. It stressed that an administrative arrest was a measure of restraint which could be applied only in the exceptional circumstances provided for by law and that those circumstances had not been present in the applicant ’ s case. Therefore, there were no grounds for finding the applicant guilty of committing the administrative offence of disobeying a lawful order of the police under Article 19.3 § 1 of the CAO. The Supreme Court quashed the judgments of 16 and 30 November 2007 and discontinued the relevant administrative proceedings against the applicant.

14 . The applicant lodged a civil claim in respect of non-pecuniary damage. On 26 June 2008 the Novo-Savinovskiy District Court of Kazan, relying on the judgment of the Supreme Court of the Republic of Tatarstan of 11 January 2008, established that in forcibly arresting the applicant, escorting him to the police station and bringing administrative proceedings against him under Article 19.3 § 1 of the CAO, the police officers from the Kazan Town Police Department had acted unlawfully, in the absence of legitimate grounds for “escorting” to a police station or an administrative arrest, and without drawing up any records. The applicant had had his passport and driving licence with him and there was nothing to indicate that it had been impossible to draw up a record of the administrative offence under Article 20.2 § 2 of the CAO on the spot. As a result of the use of force by the police the applicant had sustained injuries, which had subsequently been confirmed by medical certificates, notably contusion to the soft tissue of the right hand and a haematoma, contusion to the soft tissue of the chest and in the area of the right shoulder and right knee joint, bruises and abrasions to the neck, and haemorrhage in the area of the upper lip.

15 . Relying on the Constitutional Court ’ s judgment no. 1-P of 25 January 2001 and decision no. 440-O of 4 December 2003, the court held that Article 1070 § 1 of the Civil Code, which provided for the State ’ s strict liability in certain cases, also applied to situations like the applicant ’ s in which harm had resulted from other equivalent measures of restraint such as escorting and administrative arrest, the latter being equivalent to the measure of administrative detention expressly included in Article 1070 § 1 because the duration of the administrative detention included the duration of the administrative arrest by virtue of Article 32.8 of the CAO.

16 . It awarded the applicant RUB 10,000 in respect of the non ‑ pecuniary damage sustained by him as a result of the police officers ’ unlawful actions, to be paid by the Ministry of Finance of the Russian Federation.

17 . On 31 July 2008 the Supreme Court of the Republic of Tatarstan upheld the District Court ’ s judgment on appeal lodged by the respondent.

RELEVANT LEGAL FRAMEWORK

18 . For a summary of domestic law concerning the conduct of public events, liability for breaches committed during such events, and administrative escorting and arrest, see Lashmankin and Others v. Russia , nos. 57818/09 and 14 others, §§ 216-42, 298-300 and 308-10, 7 February 2017.

THE LAW

19 . The applicant complained about the use of force by the police officers and the lack of an effective investigation into his complaint. 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.”

20 . The Government argued that, in view of the Novo-Savinskiy District Court ’ s judgment of 26 June 2008, in application of which the applicant had been awarded compensation, he was no longer a victim of the alleged violation.

21 . The applicant disagreed, stating that the compensation had related to the unlawful administrative proceedings against him, leaving open the alleged violation of the Convention. Furthermore, no effective investigation had been carried out into his complaint.

22 . The Court reiterates that it falls, firstly, to the national authorities to redress any violation of the Convention. In cases of wilful ill-treatment by State agents, a breach of Article 3 cannot be remedied only by an award of compensation to the victim because, if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see Gäfgen v. Germany [GC], no. 22978/05, § 119, ECHR 2010). Therefore, in such cases two measures are indispensable to provide sufficient redress. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible. Secondly, an award of compensation to the applicant is required where appropriate or, at least, the possibility of seeking and obtaining compensation for the damage which the applicant sustained as a result of the ill-treatment (ibid., § 116, and Razzakov v. Russia , no. 57519/09, § 50, 5 February 2015 ).

23 . The question of whether the applicant may still claim to be the victim of a violation of Article 3 of the Convention in respect of his alleged ill ‑ treatment by the police is closely linked to the merits of his complaints under that provision. The Court therefore decides to join this matter to the merits.

24 . The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

25 . The applicant argued that he had not posed any threat and had not committed any actions during the static demonstration, such as a breach of public order, which could have justified the use of force by the police. In his submission, the actions of the police officers, who had attacked him after the demonstration and at a different location, had amounted to retribution for his active civic position.

26 . The Government stated that the use of force by the police against the applicant, who had resisted arrest, had been necessary and proportionate. They also submitted that the pre-investigation inquiry into the applicant ’ s complaint had constituted an effective investigation, which had been independent, thorough and expeditious, and that the investigating authorities had undertaken all reasonable measures before concluding that the applicant ’ s allegations had been unsubstantiated.

27 . The Court reiterates that in respect of a person who is deprived of his liberty, or, more generally, is confronted with law ‑ enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see Bouyid v. Belgium [GC], no. 23380/09, §§ 88 and 100, ECHR 2015). In respect of recourse to physical force during an arrest, Article 3 does not prohibit the use of force for effecting a lawful arrest (see Annenkov and Others v. Russia , no. 31475/10 , § 79, 25 July 2017). However, such force may be used only if indispensable and must not be excessive (see Ivan Vasilev v. Bulgaria , no. 48130/99, § 63, 12 April 2007). The burden of proving that this was the case rests on the Government (see Rehbock v. Slovenia , no. 29462/95, § 72, ECHR 2000 ‑ XII, and Boris Kostadinov v. Bulgaria , no. 61701/11 , § 53, 21 January 2016).

28 . In the present case the police used force not for the purposes of dispersing the demonstration but for arresting the applicant and taking him to the police station several hours after the end of the demonstration. The Court observes that it was established by the domestic courts in the administrative and civil proceedings that the police had forcibly arrested the applicant and taken him to the police station unlawfully, in the absence of any legitimate grounds for subjecting him to such measures as “escorting” to a police station or administrative arrest. The administrative proceedings against him for disobeying a lawful order of the police were discontinued. The Court further observes that as a result of the use of force by the police, the applicant sustained injuries (see paragraph 15 above).

29 . In such circumstances the Court concludes that the use of force during the applicant ’ s unlawful arrest was unjustified and amounted to his inhuman and degrading treatment.

30 . The Court notes next that the applicant ’ s criminal complaint was dismissed by the investigating authorities following the pre-investigation inquiry, the first stage in the procedure for examining criminal complaints. The Court has held, however, that the mere carrying out of a pre-investigation inquiry, not followed by a preliminary investigation, is insufficient for the authorities to comply with the requirements of an effective investigation into credible allegations of ill ‑ treatment by the police under Article 3 of the Convention (see Lyapin v. Russia , no. 46956/09, § 136, 24 July 2014, and, more recently, Samesov v. Russia , no. 57269/14, § 51, 20 November 2018). The Court sees no reason to reach a different conclusion in the present case. The authorities responded to the applicant ’ s promptly lodged credible allegations of treatment proscribed by Article 3 by carrying out a pre-investigation inquiry and refusing to institute criminal proceedings and carry out a fully fledged investigation, thereby failing in their obligation to carry out an effective investigation.

31 . In the absence of an effective investigation the applicant can still claim to be the victim of a violation of Article 3 in respect of his inhuman and degrading treatment. The Government ’ s objection concerning the applicant ’ s victim status must therefore be dismissed.

32 . There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs.

33 . The applicant complained that his administrative arrest and subsequent detention had been unlawful. He relied on Article 5 § 1 of the Convention, which 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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

Admissibility

34 . The Government submitted that the applicant had lost his victim status in view of the judgment of the Novo-Savinovskiy District Court of Kazan of 26 June 2008. The applicant disagreed, stating that the compensation had related to the unlawful administrative proceedings against him.

35 . As the Court has already reiterated above, it falls first to the national authorities to redress any alleged violation of the Convention. It observes that the complaint now before it was examined in the domestic administrative and civil proceedings and that the applicant was awarded compensation for the damage which he had sustained as a result of, inter alia , his unlawful deprivation of liberty (see paragraphs 13-17 above). The Court will therefore examine whether, for the purposes of Article 34 of the Convention, the applicant can still claim to be a “victim” of the alleged violation of his rights secured by Article 5 § 1 of the Convention. In this connection, it reiterates that an applicant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for, a breach of the Convention (see, for example, Sergey Vasilyev v. Russia , no. 33023/07, § 45, 17 October 2013).

36 . The Supreme Court of the Republic of Tatarstan and the Novo ‑ Savinovskiy District Court of Kazan found in their judgments of 11 January 2008 and 26 June 2008, respectively, that the applicant had been unlawfully deprived of his liberty by police officers on 18 October 2007 (see paragraphs 13-14 above). The national authorities can therefore be said to have acknowledged a violation of the applicant ’ s rights under Article 5 § 1 of the Convention.

37 . The Novo-Savinovskiy District Court awarded the applicant 10,000 roubles for the damage which he had sustained as a result of, inter alia , his unlawful detention. On 31 July 2008 the Supreme Court of the Republic of Tatarstan upheld the District Court ’ s judgment following the examination of the appeals lodged by the respondent authorities. No appeal was lodged against the District Court ’ s judgment by the applicant (see paragraph 17 above). It can therefore be presumed that he was satisfied with the amount of compensation awarded by the District Court. In these circumstances, there are no grounds for the Court to verify whether the sum awarded was reasonable in comparison with awards made by the Court in similar cases (see Kopylov v. Russia , no. 3933/04, § 144, 29 July 2010). It follows that the compensation in the particular circumstances of the present case amounted to appropriate and sufficient redress for the alleged violation of Article 5 § 1 (see Razzakov , cited above, § 72).

38 . In view of the foregoing the applicant can no longer claim to be the victim of a violation of Article 5 § 1. This complaint is therefore inadmissible and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

39 . The applicant complained of the restrictions imposed by the authorities on the location of the static demonstration and his prosecution for an administrative offence under Article 20.2 § 2 of the Code of Administrative Offences. He relied on Article 11 of the Convention, which reads as follows:

“ 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.”

40 . In so far as the Government can be understood to be arguing that the applicant had lost his victim status in connection with his Article 11 complaint on account of the judgment of the Novo-Savinovskiy District Court of Kazan of 26 June 2008, the Court notes that the judgment did not concern the applicant ’ s prosecution for breaching the established order for conducting public assemblies under Article 20.2 § 2 of the Code of Administrative Offences. It did not therefore affect his victim status in respect of the alleged violation of Article 11 of the Convention.

41 . The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

42 . The applicant stated that the authorities had not provided any evidence to show that the demonstration had not been peaceful or had caused any inconvenience to other people, or that its participants had committed any illegal acts. Holding the event at the chosen location had been important because of its significance to the general public. The authorities had displayed zero tolerance to the peaceful public event.

43 . The Government submitted that it had been open to the applicant to carry out the demonstration lawfully, albeit at a more appropriate location, without posing a threat to public order, the rights and interests of third parties and the participants ’ security. The authorities had therefore acted in compliance with Article 11 § 2. Furthermore, the demonstration had not been dispersed and had taken place at the location chosen by the applicant.

44 . The Court observes that in the present case the competent authorities refused to approve the location of the public event planned by the applicant, and proposed alternative locations. The applicant, considering that the authorities ’ proposals did not answer the purpose of the demonstration, decided to hold it as initially planned. Afterwards, he was arrested and convicted, inter alia , of an administrative offence under Article 20.2 § 2 of the Code of Administrative Offences. The Court thus concludes that there has been an interference with the applicant ’ s right to freedom of peaceful assembly (see Lashmankin and Others v. Russia , nos. 57818/09 and 14 others, § § 407-08, 7 February 2017).

45 . The applicant ’ s conviction under Article 20.2 § 2 of the Code of Administrative Offences on account of holding the demonstration opposite the Constitutional Court of the Republic of Tatarstan had its basis in the statutory ban on holding public events in the vicinity of court buildings. The Court has already held that such a general ban is so broadly drawn that it cannot be accepted as compatible with Article 11 § 2 (ibid., §§ 431-42).

46 . The foregoing considerations are sufficient to enable the Court to conclude that the applicant ’ s conviction, by relying solely on the ban, without any consideration of the specific circumstances of the case, cannot be regarded as necessary within the meaning of Article 11 § 2 of the Convention.

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

48 . The applicant complained that he had had no effective domestic remedy in relation to his ill-treatment by the police, as the authorities had failed to carry out an effective investigation into his complaints. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

49 . The Government contested that argument.

50 . The Court notes that this complaint is linked to the issue raised under the procedural aspect of Article 3 of the Convention and must therefore likewise be declared admissible.

51 . Having regard to the finding of a violation of Article 3 under its procedural aspect on account of the respondent State ’ s failure to carry out an effective investigation, the Court considers that it is not necessary to examine this complaint separately under Article 13.

52 . 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.”

53 . The applicant claimed 40,000 euros (EUR) in respect of non ‑ pecuniary damage.

54 . The Government made no comments.

55 . Having regard to the violations found under Articles 3 and 11 of the Convention and taking into account the amount of the compensation awarded in the domestic proceedings, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

56 . The applicant also claimed EUR 500 for the legal costs incurred before the Court, notably for the preparation of his observations in reply to those by the Government.

57 . The Government stated that in the absence of information concerning the time spent on the legal work the claim was unsubstantiated.

58 . Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the sum claimed covering costs under all heads for the proceedings before the Court, plus any tax that may be chargeable to the applicant.

59 . 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,

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five 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;

Done in English, and notified in writing on 1 September 2020 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Helen Keller Deputy Registrar President