THIRD SECTION

CASE OF ZILBERG v. RUSSIA

(Application no. 16156/19)

JUDGMENT

STRASBOURG

15 December 2022

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

In the case of Zilberg v. Russia,

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

Darian Pavli, President , Ioannis Ktistakis, Andreas Zünd , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar ,

Having deliberated in private on 24 November 2022,

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

PROCEDURE

1. The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 13 March 2019.

2. The applicant was represented by Mr N.V. Olenichev, a lawyer practising in St Petersburg.

3. The Russian Government (“the Government”) were given notice of the application.

THE FACTS

4. The applicant’s details and information relevant to the application are set out in the appended table.

5. The applicant complained of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings. He also raised other complaints under the provisions of the Convention and Protocol No. 7.

THE LAW

6. The applicant complained under Article 6 § 1 of the Convention principally of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in the administrative-offence proceedings.

7. The relevant principles of the Court’s case-law concerning the requirement of impartiality under Article 6 § 1 of the Convention can be found in the leading case of Karelin v. Russia (no. 926/08, §§ 51-57, 20 September 2016, with further references). In that case the Court assessed the national rules of administrative procedure and concluded that the statutory requirements allowing for the national judicial authorities to consider an administrative offence case which falls within the ambit of Article 6 of the Convention under its criminal limb, in the absence of a prosecuting authority, was incompatible with the principle of objective impartiality set out in Article 6 of the Convention.

8. 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 on the admissibility and merits of this complaint.

9 . This complaint is therefore admissible and discloses a breach of Article 6 § 1 of the Convention.

10. The applicant submitted other complaints which also raised issues under the Convention and Protocol No. 7, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Frumkin v. Russia , no. 74568/12, §§ 81-142, 5 January 2016, concerning disproportionate measures taken by the authorities against organisers and participants of public assemblies; Tsvetkova and Others v. Russia , nos. 54381/08 and 5 others, §§ 178-91, 10 April 2018, regarding the lack of a suspensive effect of an appeal and immediate execution of a sentence of administrative detention; and Korneyeva v. Russia , no. 72051/17 , § 34, 8 October 2019, as regards unlawful arrest and detention pending administrative proceedings.

11. As regards the remaining complaints under Article 6 of the Convention about unfairness of proceedings, submitted by the applicant, the Court, having reached the conclusion about the lack of impartiality of the tribunal under Article 6 of the Convention (see paragraph 9 above), does not consider it necessary to examine them separately.

12. 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.”

13. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Kuratov and Others v. Russia [Committee], nos. 24377/15 and 2 others, 22 October 2019), the Court considers it reasonable to award the sum indicated in the appended table.

14. The Court further 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 amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Darian Pavli

Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention

(lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings)

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Penalty

Date of final domestic decision

Name of court

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant

(in euros) [1]

16156/19

13/03/2019

Yakov Leonidovich ZILBERG

1996Olenichev Maksim Vladimirovich

St Petersburg

5 days of administrative arrest

St Petersburg City Court

13/09/2018

Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - arrest and detention on 09/09/2018 in excess of 3 hours for the sole purpose of drawing up a record of the administrative offence

Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - 5 days of administrative arrest for participation in a manifestation on 09/09/2018, penalty under Article 20.2 § 6.1 of CAO, final decision of the St Petersburg City Court on 13/09/2018

Prot. 7 Art. 2 – lack of suspensive effect of appeal. The sentence of administrative detention imposed on the applicant by the court of first instance was executed immediately on 10/09/2018, on account of the lack of suspensive effect of an appeal under the CAO (see Tsvetkova and Others v. Russia , nos. 54381/08 and 5 others, §§ 179-191, 10 April 2018; Martynyuk v. Russia , no. 13764/15, §§ 38-42, 8 October 2019)

3,900

[1] Plus any tax that may be chargeable to the applicant.