THIRD SECTION

DECISION

Application no. 48564/11 Aleksandr Vladimirovich YUFRYAKOV against Russia

The European Court of Human Rights (Third Section), sitting on 15 March 2022 as a Committee composed of:

Darian Pavli, President, Peeter Roosma, Mikhail Lobov, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 48564/11) against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 June 2011 by a Russian national, Mr Aleksandr Vladimirovich Yufryakov, who was born in 1958 and lives in Arkhangelsk (“the applicant”) who was represented by Mr I.Yu. Telyatyev, a lawyer practising in Arkhangelsk;

the decision to give notice of the application to the Russian Government (“the Government”), represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and lately by his successor in that office, Mr M. Vinogradov;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1 . On 15 March 2010 the local committee of the Communist Party (“the committee”) notified the Arkhangelsk administration of its intention to hold a public gathering in Lenin Square on 28 March 2010 to protest against the rising cost of communal services. The administration refused to authorise this gathering because another public event had already been planned in that square on the same date. Despite the refusal, the committee made a general call to join the gathering. The authorities, being aware of this upcoming event which was to take place simultaneously with the authorised one, deployed one hundred and twenty police officers on the spot. Moreover, one hundred and fifty police reserve officers were ready to intervene in case of need.

2 . On 28 March 2010 the committee held the public meeting with about nine hundred and fifty participants. According to the Government, the police was dispersed around the square but no police officers were present at the stage area near the Lenin monument. The applicant, a co-chair of the Northern branch of the democratic political movement Solidarnost, joined the gathering together with other protestors. They carried the movement’s flags and banners. Near the stage area of the meeting the applicant was attacked by three plain clothed individuals who forcefully took away his banner and two flags and destroyed them.

3 . The applicant filed a complaint with the police asking to identify and prosecute the perpetrators. He claimed that a police officer had been present within three meters of the scuffle but had not intervened. The police conducted an inquiry into the incident during which they questioned seven witnesses upon the applicant’s request. Five eyewitnesses confirmed the fact of the attack on the applicant but testified nothing about the presence of the police officer on the spot. On 18 April 2010 the head of the Arkhangelsk police department refused to open criminal proceedings into the incident owing to lack of evidence that a crime had been committed. On appeal, the district court found this decision unlawful and ordered an additional inquiry. The investigator thereupon questioned the event organisers from the Communist Party who confirmed the fact of the attack on the applicant but did not identify any of the alleged perpetrators on the photos. On 30 October 2010 the investigator refused to open criminal proceedings into destruction of the applicant’s property, namely flags and a banner, on the same grounds. The decision stated that the persons who had committed an administrative offence under Article 7.17 of the Code of Administrative Offences (wilful damage or destruction of property which did not result in significant damage) had not been identified. The domestic courts upheld this decision.

4. The applicant complained about the authorities’ failure to comply with positive obligations under Articles 10 and 11 of the Convention on account of the attack on him by private individuals during a public gathering and the lack of investigation therein. He further complained under Article 13 of the Convention about the absence of an effective domestic remedy for a violation of the right to freedom of expression and assembly.

THE COURT’S ASSESSMENT

5. The Court will examine the applicant’s complaint from the standpoint of the State’s positive obligations flowing from Article 11 of the Convention. While the authorities have a duty to take appropriate measures with regard to lawful demonstrations in order to ensure their peaceful conduct and the safety of all citizens, they cannot guarantee this absolutely and have a wide discretion in the choice of the means to be used. In this area the obligation they enter into under Article 11 of the Convention is an obligation as to measures to be taken and not as to results to be achieved (see Kudrevičius and Others v. Lithuania ([GC], no. 37553/05, § 159, ECHR 2015, and the cases cited therein).

6. In the present case the authorities, being aware of the event planned on 28 March 2010, dispatched considerable number of police officers to the Lenin Square (see paragraph 1 above). Nothing suggests that this number was insufficient to facilitate two simultaneous events, namely the authorised gathering and the protest organised by the committee (see, mutatis mutandis , Ouranio Toxo and Others v. Greece , no. 74989/01, § 43, ECHR 2005 ‑ X (extracts)). Moreover, in case of need, the authorities could deploy additional police force to prevent escalation of conflict (see paragraph 1 above). It cannot be said therefore that the State failed in its duty to ensure police presence in order to enable the two events proceed peacefully (see, mutatis mutandis , Öllinger v. Austria , no. 76900/01, § 48, ECHR 2006 ‑ IX).

7. The Court has to determine next whether there is an arguable claim that the police failed to intervene into the attack on the applicant by unidentified persons. The applicant insisted on the presence of a police officer in proximity of the scuffle and his failure to intervene (see paragraph 3 above). The Government contended that the police had been dispersed around the Lenin Square while the scuffle had happened near the stage area (see paragraph 2 above). The Court notes the testimonies of the eyewitnesses questioned upon the applicant’s request, none of whom testified about the presence of the police officer near the scuffle (see paragraph 3 above). The Court does not have at its disposal any element capable of casting doubt upon these statements (see, for similar reasoning, Protopapa v. Turkey , no. 16084/90, § 110, 24 February 2009). In the absence of any evidence capable of corroborating the applicant’s allegations, it cannot be said that the police officer observed the incident but failed to intervene (see, by contrast, Promo Lex and Others v. the Republic of Moldova , no. 42757/09, § 24, 24 February 2015).

8. As to the authorities’ duty to investigate the circumstances of the incident, the Court observes that they conducted several preliminary inquiries into it. They questioned a number of eyewitnesses upon the applicant’s request, other witnesses and event organisers (see paragraph 3 above). The investigators refused to open a criminal case into the destruction of the applicant’s flags and banner because they found that no criminal offence punishable under the Russian Criminal Code had been committed, the events falling rather under the definition of an administrative offence (see paragraph 3 above). Taking into account the nature of the offense against the applicant, it can be said that the authorities took the necessary steps to effectively investigate the circumstances of the incident (see, by contrast, Özgür Gündem v. Turkey , no. 23144/93, § 45, ECHR 2000 ‑ III, in respect of failure to take steps to investigate and, where necessary, provide protection against unlawful acts involving violence). The fact that the authorities did not identify the perpetrators does not affect this finding as this is an obligation of means, not one of result (see, mutatis mutandis , Fáber v. Hungary , no. 40721/08, § 39, 24 July 2012).

9. In the light of the above findings, the Court concludes that the applicant’s complaint under Article 11 of the Convention is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

10. The applicant further complained about the lack of an effective remedy for a violation of the right to freedom of expression and assembly. In the absence of an arguable claim of a violation of the applicant’s rights, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention (see Maurice v. France [GC], no. 11810/03, § 106, ECHR 2005 ‑ IX, and, mutatis mutandis , Lendvay v. Hungary (dec.), no. 60989/12, 28 November 2017).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 April 2022.

Olga Chernishova Darian Pavli Deputy Registrar President