Communicated on 8 March 2021 Published on 29 March 2021

THIRD SECTION

Application no. 58439/16 M.P. against Russia lodged on 30 September 2016

STATEMENT OF FACTS

The applicant, Mr M.P. , is a Russian national, who was born in 1985 and lives in Krasnogorsk. He is represented before the Court by Mr S.I. Panchenko , a lawyer practising in Moscow, and Ms K.A. Moskalenko, lawyer of the Centre of Assistance to International Protection based in Moscow.

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

1 . The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in the judgments Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The applicant ’ s submissions on the circumstances directly relevant to the present case are set out below.

2 . The applicant is an activist and participant of protest actions against violation of freedom of peaceful assembly. He suffers from a serious neurological disease called Tourette ’ s Syndrome.

3 . On 6 May 2012 the applicant took part in the demonstration at Bolotnaya Square. He was arrested at the venue of the event and brought to the police station where he was accused of having disobeyed a lawful order of the police, an offence under Article 19.3 § 1 of the Code of Administrative Offences.

4 . On 20 July 2012 the Justice of the Peace of Court Circuit no. 100 of the Yakimanka District of Moscow found the applicant guilty as charged and sentenced him to a fine of 500 Russian roubles (about 13 euros at the time). The court held as follows:

“On 6 May 2012 at 6.40 p.m. [the applicant] ... participated in the demonstration at Bolotnaya Square together with approximately 250 other citizens ... [the applicant] chanted ... slogans “Down with Putin” and “Putin is a thief”, broke the police cordon and tried to head in the direction of Bolshoy Kamennyy Bridge ... [the applicant] did not react to multiple lawful demands of police officers to proceed to the police van for drawing up the administrative-offence record, pushed [the officers] away with his arms trying to create a turmoil amid citizens ...”

5 . It is unclear whether the applicant appealed against the above judgment.

6 . On 27 November 2015 the Basmannyy District Court of Moscow authorised a search of the applicant ’ s flat in Astrakhan. The court stated that during the operational-search activities the applicant was identified as an active participant in the acts of mass disorder at Bolotnaya Square on 6 May 2012. In particular, the applicant used violence against a police officer and pulled a protection helmet off his head. T here were therefore sufficient grounds to believe that the applicant ’ s clothes, which he had worn on 6 May 2012 at Bolotnaya Square, as well as other objects and documents which could attest his criminal activity could be located in the applicant ’ s flat.

7 . On 7 April 2016 the applicant ’ s flat was searched. During the search, the police seized a red sweatshirt; the applicant confirmed that he was wearing it on 6 May 2012 at Bolotnaya Square.

8 . On the same day the applicant was questioned as a witness. He confirmed that he had taken part in the demonstration at Bolotnaya Square on 6 May 2012 but denied his participation in any acts of mass disorder or committing acts of violence against police officers. Having familiarised himself with a video recording, the applicant confirmed that he had pulled a helmet off the head of a police officer, trying to distract the latter from other protestors who had been beaten by the police.

9 . On the same date charges were brought against the applicant under Articles 212 § 2 (participation in acts of mass disorder accompanied by violence and destruction of property) and 318 § 1 of the Criminal Code (use of violence against a public official). He was accused , in particular, of having pulled a protection helmet off a police officer ’ s head. Then the applicant was questioned again as an accused. He confessed that he had pulled the helmet off the head of a police officer but denied that he had squeezed the helmet, thereby causing pain to the officer.

10 . On 8 April 2016 the Basmannyy District Court of Moscow ordered the applicant ’ s pre-trial detention until 7 June 2016. It vaguely referred to the gravity of the charges and information about the applicant ’ s personality. The court dismissed the request from the applicant ’ s lawyers for an alternative preventive measure.

11 . During the hearing on 8 April 2016 the applicant ’ s lawyers requested for it to be held in camera to avoid disclosure of the applicant ’ s medical diagnoses and health data. They also requested his release from the metal cage. Both requests were dismissed by the court. Furthermore, upon the lawyers ’ request the court questioned the applicant ’ s mother who testified about his medical condition and confirmed the possibility of choosing house arrest as a preventive measure for the applicant.

12 . On 11 April 2016 the applicant ’ s lawyers lodged an appeal against the detention order. They pointed out that holding a public hearing had led to disclosure of the applicant ’ s intimate details and his health data. The lawyers insisted that the applicant ’ s medical condition prevented him from “absconding the investigation and trial”, as established by the court when placing him in pre-trial detention.

13 . On 18 May 2016 a commission of experts from the Psychiatric Hospital no. 1 of Moscow examined the applicant ’ s mental condition and his capacity to recognise the nature of his conduct and to control it. The commission studied his medical history and concluded that a profound forensic psychiatric examination was necessary.

14 . On 20 May 2016 the Moscow City Court upheld the applicant ’ s detention order of 8 April 2016.

15 . On 31 May 2016 the Basmannyy District Court examined a new application for an extension of the applicant ’ s pre-trial detention. The applicant ’ s lawyers presented a personal guarantee from a member of the State Duma in support of an undertaking by him to appear before the investigating authorities and the courts for the examination of his case. However, the court did not consider this guarantee. Referring to the gravity of the charges and absence of any health issues calling for release, it authorised a further extension of the applicant ’ s detention until 5 September 2016.

16 . On 1 June 2016 the applicant ’ s lawyers lodged an appeal against the extension of his detention. They pointed out that the applicant ’ s genetic disease required special treatment which could only be provided upon his release. They also complained that the Basmannyy District Court had dismissed their request that the hearing be held in camera in order to avoid the disclosure of the applicant ’ s health data.

17 . On 29 June 2016 the Moscow City Court upheld the decision of 31 May 2016.

18 . On 26 July 2016 a panel of psychiatrists from the Federal Medical Research Centre for Psychiatry and Addictology ( Федеральный медицинский исследовательский центр психиатрии и наркологии имени В.П. Сербского ) started a forensic psychiatric examination of the applicant. On 23 August 2016 the panel delivered the expert opinion no. 833 on the applicant ’ s mental health condition. They diagnosed him with personality disorder owing to combined illnesses and concluded that he needed involuntary treatment in a psychiatric facility.

19 . On 29 August 2016 the Basmannyy District Court granted another extension of the applicant ’ s detention until 7 January 2017. It reiterated the grounds given in the previous extension orders and stated that the circumstances justifying the detention order had not changed. The court once again dismissed the lawyers ’ request that the hearing be held in camera for the purposes of avoiding any disclosure of the applicant ’ s medical data.

20 . On 30 August 2016 the applicant ’ s lawyers appealed against the extension of his detention. They alleged , in particular, that the court ’ s refusal to hold the hearing in camera was unlawful and pointed out that the Moscow City Court had previously granted similar requests.

21 . On 21 September 2016 the Moscow City Court upheld the decision of 29 August 2016.

22 . On 31 October 2016 the Basmannyy District Court ordered the applicant ’ s transfer from the remand prison to the psychiatric facility, referring to the expert opinion of 23 August 2016. The applicant was to stay there until 7 January 2017.

23 . On 1 November 2016 the applicant ’ s lawyers lodged an appeal against the above decision. They complained , in particular, about the dismissal of their request for the hearing to be held in camera.

24 . On 30 November 2016 the Moscow City Court upheld the decision of 31 October 2016.

25 . On 28 December 2016 the Zamoskvoretskiy District Court ordered the extension of the applicant ’ s detention in the psychiatric facility until 14 June 2017.

26 . On 30 December 2016 the applicant ’ s lawyers lodged an appeal against the extension of his detention. They pointed out that the first ‑ instance court again dismissed their request for the hearing to be held in camera.

27 . On 13 February 2017 the Moscow City Court examined the above appeal and held that the decision on the extension of the applicant ’ s detention was lawful and well-reasoned. The court dismissed the request that the appeal hearing be held in camera.

28 . On 28 December 2016 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against the applicant, who was charged with participation in acts of mass disorder and committing acts of violence against police officers. The lawyers requested that the applicant be released from the metal cage in the courtroom, but to no avail.

29 . On 18 January 2017 the same court began the trial on the merits. On several occasions the lawyers requested that the hearing be held in camera with a view of avoiding the disclosure of the applicant ’ s health data. The court granted those requests.

30 . On 25 and 27 January 2017 the Zamoskvoretskiy District Court questioned fifteen police officers, the alleged victims of acts of mass disorder. They confirmed that participants of the demonstration at Bolotnaya Square had acted aggressively, had shouted slogans and had thrown various objects at the police.

31 . On 17 February 2017 Police Officer F., the alleged victim of the applicant ’ s assault, was examined as a witness. F. testified that the applicant had struck on each side of the helmet with his hands and then had torn it off his head.

32 . On 9 March 2017 Police Officer L. was examined as a witness. He confirmed that the applicant had abruptly torn the helmet off F. ’ s head.

33 . On 29 March 2017 the Zamoskvoretskiy District Court adopted a decision, which established all factual and objective elements of relevant events and found the applicant guilty as charged. It held , in particular, as follows:

“[The applicant] who suffered from a mental illness, which deprived him of the possibility to realise the actual nature of the acts committed or the danger they represent to society and to control these acts according to the expert ’ s opinion no. 833 of [23 August 2016], ... learnt about the authorised public event to be held on 6 May 2012 from 4 p.m. to 7.30 p.m. ... at Bolotnaya Square in Moscow ...

On 6 May 2012, at 5 p.m. at the latest ..., [the applicant] arrived at Bolotnaya Square in Moscow to take part in the above public event ...

Between 5 p.m. and 10 p.m. ... [the applicant] took part in the acts of mass disorder accompanied by violence against police officers and the destruction of property, defied lawful orders of the police and military and tried to break through the police cordon ...

Unidentified participants of acts of mass disorder threw chunks of tarmac, stones, sticks and other objects at the police ... which hit them on various parts of their body. ...

[The applicant] used violence against Police Officer [Mr F.] which did not endanger his life or health. In particular, [the applicant], acting with the aim of using violence, tried to prevent police officers from arresting aggressive participants. Standing behind [F.], he squeezed with force the base of the helmet ... that the latter was wearing, pulled it towards himself and tore it off [F. ’ s] head thereby causing pain to the latter.

Afterwards the participants of acts of mass disorder, including Mr. Ya . Belousov , administered several blows and kicks to [F. ’ s] unprotected head, body and limbs and threw various objects at him, causing him physical pain ... As a result of these actions [F.] sustained injuries in the form of bruising and abrasion of the soft tissues of the parietal region, bruising of the ... right forearm, abrasion on the ... right shin ... which were caused by at least three blows of the blunt hard object (or objects) and which ... did not endanger life or health and did not entail short-term health impairment or minor durable professional incapacitation ...

[The applicant] testified that he had not committed any unlawful acts in respect of the police... he did not deny taking the unfastened helmet off [F. ’ s] head with a view of distracting the latter ’ s attention ...

... on the basis of evidence examined during the trial the court ... finds [the applicant] guilty of having committed the crimes provided for by Articles 212 § 2 and 318 § 1 of the Criminal Code ...

According to the evidence presented during the trial, on 20 July 2012 [the applicant] was brought to administrative liability for having committed an offence under Article 19.3 § 1 of the Code of Administrative Offences, namely of having disobeyed a lawful order of the police officer to proceed to the police station ... which has no relation to [the applicant ’ s] participation in acts of mass disorder and using violence against [F.]. ...

According to the expert opinion no. 833 of [23 August 2016] [the applicant] suffers from personality disorder owing to combined illnesses. Such a disorder ... can amount to chronic mental illness which had deprived [the applicant] of the possibility to realise the actual nature of the acts committed by him or the danger they represent to society and to control these acts ... As [the applicant] ... can endanger himself and those around him ... he needs to undergo involuntary medical treatment in a psychiatric hospital ...

... the court agrees with the above expert opinion ... and on its basis concludes that [the applicant] is criminally insane ... The court considers that [the applicant] should be exempted from criminal liability for the commitment of crimes provided for by Articles 212 § 2 and 318 § 1 of the Criminal Code ...”

34 . The court relieved the applicant of criminal responsibility and ordered his involuntary treatment in a psychiatric facility of a specialised type. It also ordered that the applicant ’ s detention be terminated upon his placement in that facility.

35 . On 4 April 2017 the applicant ’ s lawyers lodged an appeal against the decision of 29 March 2017. Referring to the Court ’ s judgment in Frumkin (cited above), they claimed a violation of the applicant ’ s right to freedom of assembly by the authorities.

36 . On 22 June 2017 the Moscow City Court examined the above appeal. The court granted the lawyers ’ request and held the hearing in camera to avoid disclosure of the applicant ’ s medical data. It upheld the decision of 29 March 2017 as lawful and well-reasoned.

37 . Since 18 July 2017 the applicant had been undergoing involuntary treatment in Astrakhan Regional Psychiatric Hospital ( ГБУЗ Астраханской области “ Областная клиническая психиатрическая больница ” ).

38 . On 22 January 2018 the Kirovskiy District Court of Astrakhan examined the request of the head doctor of that hospital to change the involuntary treatment in a psychiatric facility to involuntary out ‑ patient supervision and treatment with the psychiatrist. The District Court granted that request, having regard to the improvement of the applicant ’ s mental condition. The measure was to be applied for six more months.

39 . From 6 February 2018 until unspecified date the applicant underwent involuntary out-patient treatment in Krasnogorsk Town Hospital no. 1 ( Красногорская городская больница № 1 ). On 27 November 2018 the panel of psychiatrists decided that the applicant could be relieved from that treatment. It appears that the request for its termination was submitted to the Kirovskiy District Court of Astrakhan on an unknown date. However, the result of its examination is unknown.

40 . The Criminal Code of the Russian Federation of 1997 provides as follows:

Article 97. Grounds for the application of compulsory measures of a medical nature

“1. Compulsory measures of a medical nature may be applied by a court to individuals:

(a) who, in a state of insanity, committed an offence described in [...] the ... present Code;

(b) who, after having committed a criminal offence, became mentally ill, making it impossible to sentence him and execute that sentence;

(c) who committed a criminal offence and who suffer from a mental illness, which does not [reach the level of insanity] ...

2. Compulsory measures of a medical nature shall only be applied to people [falling within the situations] listed in the first paragraph of the present Article in cases where the mental disorders are linked to the ability of those persons to cause substantial damage or to present a danger to themselves or other individuals. ...”

Article 99. Compulsory medical measures

“1. The court may impose the following compulsory medical measures:

a) out ‑ patient involuntary observation and treatment with the psychiatrist;

b) involuntary treatment at a psychiatric institution of a general type;

c) involuntary treatment at a psychiatric institution of a specialised type;

d) involuntary treatment at a psychiatric institution of a specialised type with intensified supervision. ...”

Article 212. Mass disorder

“1. The organisation of mass disorder accompanied by violence, riots, arson, destruction of property, use of firearms, explosives and explosive devices, as well as by armed resistance to a public official, shall be punishable by four to ten years ’ deprivation of liberty.

2. The participation in the types of mass disorder provided for by paragraph 1 of this Article shall be punishable by three to eight years ’ deprivation of liberty. ...”

Article 318. Use of violence against a public official

“1. The use of violence not endangering life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of up to 200,000 roubles or an equivalent of the convicted person ’ s wages for 18 months, or community works for up to five years, or up to five years ’ deprivation of liberty ...”

41 . The Code of Criminal Procedure of 2001 provides:

Article 241. Public nature of the trial

“1. Trials of criminal cases in all courts shall be public, with the exception of the cases indicated in the present Article.

2. Judicial proceedings in camera are admissible on the basis of a determination or a ruling of the court in the event that:

( i ) proceedings in the criminal case in open court may lead to disclosure of a State or any other secret protected by the federal law;

(ii) the criminal case being tried relates to a crime committed by a person who has not reached sixteen years of age;

(iii) the trial of criminal cases involving a crime against sexual inviolability or individual sexual freedom, or another crime where the trial may lead to disclosure of information about the intimate aspects of the life of the participants in the criminal proceedings or of humiliating information;

(iv) this is required in the interest of guaranteeing the safety of those taking part in the trial proceedings and that of their immediate family, relatives or persons close to them .

Where a court decides to hold a hearing in camera, it shall indicate the specific circumstances in support of that decision in its ruling on this point. ...”

Article 443. A court decision

“1. When a court finds it proven that a criminal offence was committed by that person in a state of insanity or that after having committed a criminal offence the person became mentally ill, making it impossible to sentence him and execute the sentence, the court shall take a decision in accordance with Articles 21 and 81 of the Criminal Code of the Russian Federation reli e ving that person from criminal responsibility or from serving the sentence and authorising the application of compulsory measures of a medical nature to him ...”

42 . The relevant provisions of the Code of Administrative Offences of 2001 read as follows:

Article 19.3 Refusal to obey a lawful order of a police officer ...

“Failure to obey a lawful order or demand of a police officer ... in connection with the performance of the officer ’ s official duties relating to maintaining public order and security, or impeding the officer ’ s performance of his or her official duties, shall be punishable by a fine of between 500 roubles and 1,000 roubles or by administrative detention for up to fifteen days.”

43 . For a summary of the relevant domestic law provisions governing pre-trial detention and for the practice of the domestic courts in that matter, see the case of Zherebin v. Russia (no. 51445/09, §§ 16-25, 24 March 2016).

44 . The relevant parts of Recommendation Rec( 2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorders of 22 September 2004 read as follows:

Article 13 – Confidentiality and record-keeping

“1. All personal data relating to a person with mental disorder should be considered to be confidential. Such data may only be collected, processed and communicated according to the rules relating to professional confidentiality and personal data protection.

2. Clear and comprehensive medical and, where appropriate, administrative records should be maintained for all persons with mental disorder placed or treated for such a disorder. The conditions governing access to that information should be clearly specified by law.”

45 . Principle 7 of the Recommendation R (97)5 of the Committee of Ministers to member States on the protection of medical data permits communication of medical data if they are relevant and either ( i ) the person himself or herself, or his/her legal representative or an authority, person or body provided for by law has given consent, or (ii) the communication is permitted by law and constitutes a necessary measure in a democratic society for the prevention of a real danger or the suppression of a criminal offence or the protection of the rights and freedoms of others.

46 . Recommendation CM/ Rec( 2019)2 of the Committee of Ministers to member States on the protection of health-related data contains some principles on communication of such data in the appendix. In particular, Principle 9 provides rules of communication of health-related data for purposes other than providing and administering health care. Health-related data may be communicated to recipients who are authorised by law to have access to the data and who are subject to the rules of confidentiality incumbent upon a health-care professional, or to equivalent rules of confidentiality, unless other appropriate safeguards are provided for by law.

COMPLAINTS

The applicant complains about a violation of his right to freedom of peaceful assembly on account of prosecution for administrative and criminal offences following his participation in the demonstration at Bolotnaya Square in Moscow on 6 May 2012. He further alleges that his pre-trial detention was not based on a “reasonable suspicion” that he had committed a criminal offence contrary to Article 5 § 1 of the Convention. Moreover, his detention on remand was not justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention. Furthermore, the proceedings in which the Moscow City Court examined his appeals against the decisions concerning his detention (38 days, 28 days, 22 days, 29 days, 44 days) were excessively long.

The applicant also alleges a violation of Article 3 of the Convention on account of his placement in a metal cage in the courtroom during the hearings on his pre-trial detention and the first-instance trial. He also complains about the breach of that provision on account of the court ’ s refusal to hold several hearings in camera and consequently his humiliating exposure to the public. Furthermore, the applicant in essence complains that the above refusal had led to the disclosure of his health-related data in the public hearing, in breach of Article 8 of the Convention.

Lastly, the applicant complains that he was tried and punished twice, in violation of the non bis in idem principle set out in Article 4 of Protocol No. 7 to the Convention. He alleges , in particular, that the administrative offence under Article 19.3 of the Code of Administrative Offences of which he was convicted on 20 July 2012 was criminal in nature and it was based on essentially the same facts as the criminal charges against him.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, on account of his confinement in a metal cage during the hearings at the Basmannyy District Court of Moscow and the Zamoskvoretskiy District Court of Moscow (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, §§ 53-76, ECHR 2014 (extracts))?

2. In the proceedings in which detention was imposed or extended (remand proceedings), did the courts satisfy themselves that there existed a “reasonable suspicion” against the applicant, as required by Article 5 § 1 (c) of the Convention? In particular, in the remand proceedings did the courts assess evidence showing the existence of such “reasonable suspicion” (see Khudoyorov v. Russia , no. 6847/02, § 180, 8 November 2005, and Shcheglyuk v. Russia , no. 7649/02, § 43, 14 December 2006)?

3. Has the applicant ’ s pre-trial detention been based on “relevant and sufficient” reasons and has it been compatible with the “reasonable time” requirement of Article 5 § 3 of the Convention (see Zherebin v. Russia , no. 51445/09, §§ 49-63, 24 March 2016, and Kovyazin and Others v. Russia , nos. 13008/13 and 2 others, §§ 75-94, 17 September 2015)?

4. Did the length of the proceedings before the Moscow City Court in the present case, by which the applicant sought to challenge the lawfulness of his pre-trial detention ordered on 8 April 2016 and extended on several occasions comply with the “speed” requirement of Article 5 § 4 of the Convention (see Idalov v. Russia [GC], no. 5826/03, §§ 154-58, 22 May 2012)?

5. Did the domestic courts ’ refusal to hold some hearings in camera constitute inhuman or degrading treatment of the applicant under Article 3 of the Convention?

Did the same refusal and consequently the disclosure of the applicant ’ s health-related data constitute an interference with his right to respect for private life within the meaning of Article 8 § 1 of the Convention (see Panteleyenko v. Ukraine , no. 11901/02, §§ 56-58, 29 June 2006)?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see, for example, Mockutė v. Lithuania , no. 66490/09 , §§ 101-06, 27 February 2018, and Surikov v. Ukraine , no. 42788/06, §§ 93-94, 26 January 2017)?

6. Has there been an interference with the applicant ’ s freedom of peaceful assembly within the meaning of Article 11 § 1 of the Convention?

If so, was that interference justified in terms of Article 11 § 2 (see Yaroslav Belousov v. Russia , nos. 2653/13 and 60980/14, §§ 166-83, 4 October 2016 )?

7. Has there been a violation of Article 4 of Protocol no. 7 (for general principles, see A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 117-34, 15 November 2016)? In particular:

(a) Should the proceedings leading to the adoption of the decision of 29 March 2017 be considered as trial for an offence within the meaning of Article 4 § 1 of Protocol No. 7? Should the applicant ’ s involuntary treatment in a psychiatric facility ordered by the above decision be considered as punishment for an offence (compare Antoine v. the United Kingdom ( dec. ), no. 62960/00, 13 May 2003; Vasenin v. Russia no. 48023/06, § 130, 21 June 2016; and Hodžić v. Croatia , no. 28932/14, §§ 36-54, 4 April 2019)?

(b) Should the appeal decision of 22 June 2017 by the Moscow City Court be considered as a final decision of acquittal or conviction in accordance with the law and penal procedure in Russia (for the relevant principles see Mihalache v. Romania [GC], no. 54012/10, §§ 96-98, 8 July 2019) ?

8. The Government are invited to provide an update on the progress of the applicant ’ s involuntary out-patient treatment , in particular, the results of the examination of the request for its termination lodged by the Krasnogorsk Town Hospital no. 1. They are also invited to provide the copies of the administrative case file and criminal case file as well as copies of the judicial decisions related to the applicant ’ s pre-trial detention.