THIRD SECTION

CASE OF SHENDAKOV AND OTHERS v. RUSSIA

(Applications nos. 6493/18 and 11 others –

see appended list)

JUDGMENT

STRASBOURG

9 February 2023

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

In the case of Shendakov and Others 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 19 January 2023,

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

PROCEDURE

2. The Russian Government (“the Government”) were given notice of the applications.

THE FACTS

4. On the different dates the applicants were taken to police stations as administrative suspects of offences related to public events. They were subsequently administratively convicted for participation in different public events in Moscow.

5. The applicants complained of the unlawful detention (deprivation of liberty). They also raised other complaints under the provisions of the Convention.

THE LAW

6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

7. The applicants complained that the administrative escorting and arrest procedures and their ensuing detention had been in contravention of Article 5 § 1 of the Convention.

8. The Court has previously examined complaints brought by persons arrested and detained in similar circumstances in Russia. Having examined the applicable domestic regulations, the Court established that, under the Russian law, the escorting to a police station and ensuing detention there for the purpose of preparing an administrative arrest record would be permissible only if such record could not be drawn up at the place where the alleged offence had been discovered. The law also required that such escorting and detention be an “exceptional case” and necessary for the prompt and proper examination of the alleged administrative case or to secure the enforcement of any penalty to be imposed (see, for example, Butkevich v. Russia , no. 5865/07, §§ 63-65, 13 February 2018, and Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 71, 15 November 2018), and that the use of the escort measure be properly documented (see Timishev v. Russia [Committee], no. 47598/08, § 21, 28 November 2017, and Kalyapin v. Russia , no. 6095/09, § 76, 23 July 2019). The authorities’ failure to comply with those requirements, in the Court’s view, led to it finding a violation of Article 5 § 1 of the Convention (see, in particular, Korneyeva v. Russia , no. 72051/17, §§ 34-36, 8 October 2019; Kalyapin , cited above, §§ 76-79; and Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications, § 35, 2 July 2019).

9. Having examined all the material submitted to it and having taken into account the issue of compliance with the six-month period under Article 35 § 1 of the Convention (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022, in which the Court addressed the COVID ‑ related extension of the period in question), the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.

10. It discerns nothing in the official records submitted for it to conclude that recourse to such procedures was justified, as required by Russian law. In particular, the applicants were taken to the police station as administrative suspects, whereas there was no evidence or assessment that it was impracticable, on the spot, to compile the offence records and to achieve the objectives set out in the Code of Administrative Offences (CAO), that is to establish the suspects’ identity ( Korneyeva , cited above, §§ 34-36). It concludes that the national authorities failed to comply with the applicable rules of domestic procedure and considers that the applicants’ escorting, arrest and detention were not “in accordance with a procedure prescribed by law”.

11. These complaints are therefore admissible and disclose a breach of Article 5 § 1 of the Convention.

12. The applicants submitted other complaints which also raised issues under the Convention, 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.

13. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well ‑ established case-law (see Karelin v. Russia , no. 926/08, §§ 69-84, 20 September 2016, concerning examination of criminal cases in the absence of a prosecuting party in the judicial proceedings governed by the CAO, Kasparov and Others v. Russia no. 21613/07, §§ 84-97, 3 October 2013, and Frumkin v. Russia , no. 74568/12, §§ 102-42, 5 January 2016, concerning disproportionate measures taken by the authorities against participants of public assemblies, and Yartsev v. Russia , no. 16683/17, §§ 28-38, 20 July 2021, related to the administrative conviction for waving banners with slogans that did not correspond to the declared aims of the public event).

14. In view of the above findings, the Court considers that there is no need to deal separately with the remaining complaints under Article 6 of the Convention concerning other aspects of the fairness of the proceedings and alleged restrictions on the right to examine witnesses, as well as with the complaint under Article 2 of Protocol No. 7 to the Convention about lack of suspensive effect of an appeal against the sentence of administrative detention.

15. The applicants in applications nos. 31453/20 and 36564/20 also raised complaints under other provisions of the Convention. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention. It follows that this part of the two applications must be rejected in accordance with Article 35 § 4 of the Convention.

16. 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.”

17. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Biryuchenko and Others v. Russia [Committee], no. 1253/04 and 2 others, § 96, 11 December 2014, and, as a recent example, Akhtyamov and Others v. Russia [Committee], no. 17105/18 and 8 others, §§ 15-16, 10 October 2022), the Court considers it reasonable to award the sums indicated in the appended table.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicants, within three months, the amounts 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 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 9 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Darian Pavli

Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 5 § 1 of the Convention

(unlawful detention (deprivation of liberty))

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Start date of unauthorised detention

End date of unauthorised detention

Specific defects others than those mentioned in the paragraph 10 of the present judgment

Other complaints under well ‑ established case-law

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

(in euros) [1]

6493/18

28/01/2017

and

31453/20

08/07/2020

Mikhail Anatolyevich SHENDAKOV

1965Memorial Human Rights Centre

Moscow

and

Gilmanov Mansur Idrisovich

Podolsk

1) 29/01/2017

at 2.10 p.m.

2) 22/06/2020

at 6.30 p.m.

3) 03/10/2020

at 4.50 p.m.

1) 29/01/2017

at 5.20 p.m.

2) 23/06/2020

at 12.30 p.m.

3) 05/10/2020 (unknown time)

Detention as an administrative suspect: no evidence / assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO, and beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Butkevich v. Russia , no. 5865/07, §§ 63-65, 13 February 2018; Tsvetkova and Others v. Russia , nos. 54381/08 and 5 others, §§ 121 ‑ 22, 10 April 2018).

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in the two sets of the administrative-offence proceedings, detailed below under Article 11.

Art. 10 (1) - restriction on the right to freedom of expression. Manifestation on 29/01/2017, Art. 20.2 § 5 of CAO, fine of RUB 10,000; Moscow City Court, 28/07/2017: The applicant waved a banner “Putin is the traitor of the Motherland and the enemy of the Russian people” that, as the courts held, did not correspond to the declared aims of the approved event (see Fáber v. Hungary , no. 40721/08, §§ 32 ‑ 59, 24 July 2012, and Yartsev v. Russia , no. 16683/17, §§ 28-38, 20 July 2021).

Art. 11 (2) - disproportionate measures against participants of public assemblies:

1) Political manifestation, on 22/06/2020, Art. 20.2 § 8 of CAO, 30 days of administrative detention, Moscow City Court, 30/06/2020.

2) Meeting with Members of Moscow Parliament concerning the issue of tree-felling, on 03/10/2020, Art. 20.1 § 1 of CAO, 7 days of administrative detention, Moscow City Court, 08/10/2020.

5,000

30217/20

13/07/2020

Yelizabetta KORSI

1996Memorial Human Rights Centre

Moscow

12/06/2019

at 2.40 p.m.

12/06/2019

at 7.15 p.m.

Detention as an administrative suspect: no evidence / assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO, and beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Butkevich v. Russia , no. 5865/07, §§ 63-65, 13 February 2018; Tsvetkova and Others v. Russia , nos. 54381/08 and 5 others, §§ 121 ‑ 22, 10 April 2018).

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Moscow City Court, 18/10/2019.

Art. 11 (2) - disproportionate measures against participants of public assemblies - Manifestation in support of I. Golunov, on 12/06/2019. Art. 20.2 § 6.1 of CAO, fine of RUB 10,000; Moscow City Court, 18/10/2019.

3,900

33804/20

31/07/2020

Daniil Mikhaylovich POSPELOV

1989Memorial Human Rights Centre

Moscow

12/06/2019

at 12.30 p.m.

12/06/2019

at 10.30 p.m.

No written record of the applicant’s detention (see Timishev v. Russia [Committee], no. 47598/08, § 21, 28 November 2017).

Detention as an administrative suspect: no evidence / assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO, and beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Butkevich , cited above, §§ 63-65; and Tsvetkova and Others , cited above, §§ 121-22).

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Moscow City Court, 06/11/2019.

Art. 11 (2) - disproportionate measures against participants of public assemblies - Manifestation in support of I. Golunov, on 12/06/2019.

Art. 20.2 § 6.1 of CAO, fine of RUB 10,000; Moscow City Court, 06/11/2019.

3,900

33818/20

31/07/2020

Andrey Andreyevich MELNIKOV

1991Memorial Human Rights Centre

Moscow

03/08/2019

at 5.00 p.m.

04/08/2019

at 5.00 a.m.

Detention as an administrative suspect: no evidence / assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO, and beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Butkevich , cited above, §§ 63-65; and Tsvetkova and Others , cited above, §§ 121-22).

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Moscow City Court, 06/11/2019.

Art. 11 (2) - disproportionate measures against participants of public assemblies - Manifestation for fair elections to Mosgorduma, on 03/08/2019. Art. 20.2 § 5 of CAO, fine of RUB 15,000, Moscow City Court, 06/11/2019.

3,900

35206/20

11/08/2020

Denis Vladimirovich LIPATOV

1994Memorial Human Rights Centre

Moscow

03/08/2019

at 6.55 p.m.

04/08/2019

at 01.00 a.m.

Detention as an administrative suspect: no evidence / assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO, and beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Butkevich , cited above, §§ 63-65; and Tsvetkova and Others , cited above, §§ 121-22).

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Moscow City Court, 20/11/2019.

Art. 11 (2) - disproportionate measures against participants of public assemblies - Manifestation for fair elections to Mosgorduma; on 03/08/2019; Art. 20.2 § 5 of CAO, fine of RUB 10,000, Moscow City Court, 20/11/2019.

3,900

36564/20

21/07/2020

Aleksandr Sergeyevich BOGACHEV

1987Memorial Human Rights Centre

Moscow

27/07/2019

at 01.10 p.m.

27/07/2019

at 7.35 p.m.

Detention as an administrative suspect: no evidence / assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO, and beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Butkevich , cited above, §§ 63-65; and Tsvetkova and Others , cited above, §§ 121-22).

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings -

fine of RUB 10,000, Moscow City Court, 22/10/2019.

3,900

36921/20

07/08/2020

Veronika Vladimirovna FAYNBERG

1997Memorial Human Rights Centre

Moscow

12/06/2019

at 2.45 p.m.

12/06/2019

at 6.30 p.m.

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings -

Moscow City Court, 08/11/2019.

Art. 11 (2) - disproportionate measures against participants of public assemblies - Manifestation in support of the I. Golunov, on 12/06/2019; Art. 20.2 § 6.1 of CAO, fine of RUB 10,000; Moscow City Court, 08/11/2019.

3,900

37597/20

18/08/2020

Stanislav Alekseyevich GAMYGIN

1996Memorial Human Rights Centre

Moscow

12/06/2019

at 2.00 p.m.

12/07/2020

at 23.00 p.m.

Detention as an administrative suspect: no evidence / assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO, and beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Butkevich , cited above, §§ 63-65; and Tsvetkova and Others , cited above, §§ 121-22).

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Moscow City Court, 26/02/2020.

Art. 11 (2) - disproportionate measures against participants of public assemblies - Manifestation in support of I. Golunov, on 12/06/2019; Art. 20.2 § 6.1 of CAO, fine of RUB 10,000; Moscow City Court, 26/02/2020.

3,900

40969/20

27/08/2020

Dmitriy Nikolayevich TSAREV

1986Levenberg Yeva Viktorovna

Moscow

27/07/2019

at 01.50 p.m.

28/07/2019

at midnight

No written record of the applicant’s detention (see Timishev , cited above, § 21).

Administrative offence record was drawn not during the applicant’s detention, but two days later.

Detention as an administrative suspect: no evidence / assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO, and beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Butkevich , cited above, §§ 63-65; and Tsvetkova and Others , cited above, §§ 121-22).

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Moscow City Court, 04/03/2020.

Art. 11 (2) - disproportionate measures against participants of public assemblies - Manifestation for fair elections to Mosgorduma, on 27/07/2019, Art. 20.2 § 5 of CAO. fine of RUB 10,000, Moscow City Court, 04/03/2020.

3,900

41214/20

30/08/2020

Nikolay Aleksandrovich SHERENOV

1993Levenberg Yeva Viktorovna

Moscow

27/07/2019

at 03.30 p.m.

27/07/2019

at 09.05 p.m.

No written record of the applicant’s detention (see Timishev , cited above, § 21).

Administrative offence record was drawn not during the applicant’s detention, but three days later.

Detention as an administrative suspect: no evidence / assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO, and beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Butkevich , cited above, §§ 63 ‑ 65; and Tsvetkova and Others , cited above, §§ 121-22).

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - Moscow City Court, 02/12/2019.

Art. 11 (2) - disproportionate measures against participants of public assemblies - Manifestation for fair elections to Mosgorduma, on 27/07/2019, Art. 20.2 § 5 of CAO. fine of RUB 15,000, Moscow City Court, 02/12/2019

3,900

44829/20

19/09/2020

Tatyana Viktorovna MOROZ

1957Gilmanov Mansur Idrisovich

Podolsk

20/08/2020

at 8.20 p.m.

21/08/2020 (unclear and time, apparently, until the first instance hearing on the applicant’s administrative case)

Detention as an administrative suspect: no evidence / assessment of “exceptional circumstances” under Art. 27.3 § 1 CAO, and beyond the three-hour statutory period (Art. 27.5(1)-(4) CAO) (see Butkevich , cited above, §§ 63-65; and Tsvetkova and Others , cited above, §§ 121-22).

Art. 6 (1) - lack of impartiality of tribunal in view of the absence of a prosecuting party in administrative offence proceedings - Moscow City Court, 25/08/2020.

Art. 11 (2) - disproportionate measures against participants of public assemblies - Manifestation against poisoning of A. Navalnyy, on 20/08/2020, administrative detention of 5 days, Art. 19.3 § 1 of CAO, Moscow City Court, 25/08/2020.

3,900

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