Communicated on 2 February 2021 Published on 22 February 2021

THIRD SECTION

Applications nos. 662 1 0/16 and 662 2 0/16 Yevgeniy Aleksandrovich PROSHIN against Russia and Yan Nikolayevich KATELEVSKIY against Russia , both lodged on 10 November 2016

STATEMENT OF FACTS

1 . The applicants are two Russian nationals, Mr Yevgeniy Aleksandrovich Proshin and Mr Yan Nikolayevich Katelevskiy , who were born in 198 2 and 198 1 and live in the Moscow Region and Moscow , respectively. They are represented before the Court by Mr D. Gaynutdinov , a lawyer admitted to practise in Russia.

2 . The facts of the cases, as submitted by the applicants, may be summarised as follows.

3 . Mr Proshin is a journalist with the online magazine Russian FM Project ( www.433175.ru ).

4 . Mr Katelevskiy is a civil-society activist and YouTube vlogger who has been campaigning against attempts by State organisations and businesses to stake claim to urban public space for private purposes, such as staff parking.

5 . On 26 April 2016 Mr Katelevskiy and municipal councillor M. reported to the police an allegedly illegal use of a plot of land adjacent to the court building and the prosecutor ’ s office which was converted into a parking area with restricted access.

6 . On 27 April 2016 they were invited to give a statement to police district office no. 1 in the Ramenskoye municipal district of the Moscow Region. During the interview, the investigator told Mr Katelevskiy to follow him, without further explanation. He took him out of the building to the rear of the police station and left him there. Mr Katelevskiy found himself in a parking lot where police officers parked their private cars. Access to the area was restricted by means of an arm barrier gate. Mr Katelevskiy verified that the area was listed as municipal land for public use and started filming the surroundings to file another similar complaint.

7 . At about 8 p.m. two men, one in police uniform and the other in plain clothes, attacked Mr Katelevskiy. Without introducing themselves, they told him repeatedly that he should stop filming because he was in a “special-regime area” ( режимный объект ). The men pushed him back into the building and took away his camera and smartphone. The man in plain clothes removed and damaged the memory card to destroy the recording.

8 . At 8.45 p.m. the police drew up a report on an administrative offence of disobeying lawful police orders (Article 19.3(1) of the Code of Administrative Offences). According to the report, by disobeying the demand to stop filming the police station, Mr Katelevskiy prevented the police from carrying out their duties and interfered with the operation of the police station. At 10.20 p.m. Mr Katelevskiy was released. His smartphone, video camera and the damaged memory card were returned to him.

9 . At about 1.30 p.m. on 28 April 2016 Mr Proshin and his cameraman came together with Mr Katelevskiy to the parking lot in the rear of the police station to film an interview about the circumstances of his arrest. Several officers ran out of the building, took them inside the police station and charged them with disobeying lawful police orders. According to the charge sheet, they were filming in a restricted-access area and did not comply with the demand to stop filming. Mr Katelevskiy and Mr Proshin asked for a lawyer but their request was turned down. Officers seized Mr Katelevskiy ’ s smartphone and headphones and joined them to the file. He told them that the phone was in recording mode but they paid no attention to his comment.

10 . At 8 p.m. Mr Katelevskiy was escorted to the Ramenskoye Town Court for an immediate hearing before Judge G. He reiterated his request for a lawyer which the judge declined on the grounds that the participation of a lawyer was not mandatory in administrative proceedings. The judge also excluded members of the public, including Mr Katelevskiy ’ s wife, from the hearing room, claiming there was not enough place for them. The proceedings were conducted only in the presence of police officers and court employees.

11 . Mr Katelevskiy protested his innocence, claiming that he was not filming and that his arrest was groundless. Two police officers gave witness evidence and told the court that the police station was a “special-regime area” which could only be filmed with the consent of the station chief. Mr Katelevskiy and others had been unruly, had not reacted to their rebukes, and disrupted the operation of the police station. Responding to Mr Katelevskiy ’ s question, the officers were unable to cite a legal act which would have restricted the filming on the police premises. They told the court that the applicable regulation was classified.

12 . On the same day the judge of the Town Court found Mr Katelevskiy guilty as charged. By reference to the report on the offence and the testimony of two officers, she held that he had disobeyed the orders of the police. The report on the removal of a memory card was deemed sufficient evidence that he had been filming in a restricted area. Mr Katelevskiy was sentenced to twelve days ’ detention, enforceable immediately.

13 . At 4 p.m. on the following day, 29 April 2016, the Ramenskoye Town Court examined the charges against Mr Proshin . The trial was held in the absence of his lawyer; members of the public were excluded from the courtroom. The police relied on a classified order by the Ministry of the Interior, no. 11dsp of 11 January 2013, which required the written consent of the station chief to take photographs or make audio and video recordings in the police station. Citing its classification “for the service use only”, the judge declined to make the order available to the defence or join it to the case file. The judge relied on the testimony of police officers to establish that Mr Proshin and the others had disrupted the operation of the police station by “being present at the entrance of the building” and by making unauthorised video recordings. As to Mr Proshin ’ s argument that he was not filming but rather showing the events to his editor on his smartphone, the judge stated that it failed to convince her because it “conflicted with the functional purpose of that device which was designed for making video recordings from a distance”. Mr Proshin was sentenced to three days ’ detention, enforceable immediately.

14 . On 10 May 2016, after Mr Katelevskiy had served the twelve-day prison sentence, Judge G. of the Ramenskoye Town Court heard the charges concerning the first filming incident on 27 April 2016 (see paragraph 8 above). The judge rejected his request to adjourn the hearing until his lawyer returned from a brief absence abroad. The hearing was held behind closed doors. The court found Mr Katelevskiy guilty, relying on the police report on an administrative offence, his receipt for personal belongings, and witness evidence from two police officers who claimed that Mr Katelevskiy had ignored their demands to stop filming, talked back, screamed and used obscene speech. The court sentenced Mr Katelevskiy to ten days ’ detention.

15 . Counsel for the applicants submitted appeals, complaining that the trials had been held behind closed doors and without legal assistance. The case file did not contain any proof, such as video files or photographs, that anyone had been filming. As urban public space, the parking lot was not marked as police premises and no restrictions to filming there applied. The police officers ’ demand to stop filming had had no legal basis. Therefore, no offence had been committed.

16 . On 20 May 2016 Mr Katelevskiy was released, after having served two consecutive prison sentences.

17 . On 31 May 2016 the Moscow Regional Court rejected all the appeals in a summary fashion. It refused to consider evidence showing that the parking lot of the police station had been organised on municipal land of public use. It did not establish a breach of the right to legal assistance on the grounds that the applicants had been informed of their rights, including the right not to incriminate themselves.

18 . On 25 July 2016 the press published a transcript of the exchanges between the police officers and Judge G. of the Ramenskoye Town Court. They were recorded on Mr Katelevskiy ’ s smartphone which remained in recoding mode while the police had put it into the case folder and took to the court (see paragraph 9 above).

19 . The first part of the exchanges took place inside the police station where the officers argued with Mr Katelevskiy whether or not any Russian laws prohibited him from filming in the parking lot.

20 . The second part of the exchanges apparently occurred in the Town Court inside the office of Judge G. She was heard discussing the case with the acting head of the police station and an unidentified police officer. The judge suggested that the police witnesses should say that Mr Katelevskiy had been filming not just outside but also inside the building and pointed to flaws in the police reports. A court bailiff stepped into her office to ask if Mr Katelevskiy ’ s supporters should be allowed to the hearing room. Judge G. told him not to let them in and not to give any explanation.

21 . Back to her office after the hearing, Judge G. was heard talking on the phone to the acting head of the police station. She told him that it was a “hard case” because there were no independent witnesses to Mr Katelevskiy ’ s conduct. She admitted being unable to find any legal norm categorising a police station as a “special-regime area”. She could not rely on the order by the Ministry of the Interior because it was classified.

22 . After the judgment was drafted and delivered, a police officer was heard entering Judge G. ’ s office and asking for the original defective record to be returned to him. She berated him for taking Mr Katelevskiy ’ s personal items to her office. His phone had been “buzzing”, they should have turned it off. Judge G. called again the acting head of the police station to tell him that the case file had been “poorly prepared, no witnesses, nothing, not even an examination carried out”. Had the police removed the flash card and examined its contents, they would have had “at least one video recording”.

23 . The applicants filed a complaint with the Investigations Committee and joined a copy of the transcript. They did not receive any response. The media reported that in September 2016 some police officers were disciplined and given a reprimand.

24 . For the text of Article 19.3 and the provisions of the Code of Administrative Offences relating to the escorting and administrative detention of suspects, see Frumkin v. Russia , no. 74568/12, § 79, 5 January 2016.

COMPLAINTS

25 . The applicants complain under Article 5 § 1 of the Convention that (a) Mr Katelevskiy ’ s detention at the police station from 8 p.m. to 10.20 p.m. on 27 April 2016 and from 1.40 p.m. to 8 p.m. on 28 April 2016 and Mr Proshin ’ s overnight detention from 1.40 p.m. on 28 April to 4 p.m. on 29 April 2016 was not recorded and that (b) the deprivation of liberty to which they were sentenced by judges who exercised their authority in manifest opposition to the Convention guarantees was arbitrary (they refer to Menesheva v. Russia , no. 59261/00, § 92, ECHR 2006 ‑ III). They also complain under Article 5 § 4 that the Moscow Regional Court had considered the appeals against the conviction only after they had served the full sentence.

26 . The applicants complain under Article 6 of the Convention that they did not have access to legal assistance and that the trials were held behind closed doors. Mr Katelevskiy also complains that Judge G. coached the police witnesses to make false declarations that he was filming inside the station and discussed the particulars of his case with the acting head of the police station.

27 . The applicants complain under Article 10 of the Convention that the interference with their freedom of expression was based on a classified unpublished order of the Ministry of the Interior and that it did not pursue any legitimate aim. They were reporting on a matter of public interest, the parking lot in the rear of the police station was public space to which no restrictions applied, and they did not cause any nuisance or disruption. The custodial sentences were disproportionate to whatever aim which was pursued.

QUESTIONS TO THE PARTIES

1. Has there been a breach of Article 5 § 1 in respect of both applicants? In particular,

(a) Was Mr Katelevskiy ’ s detention at the police station from 8 p.m. to 10.20 p.m. on 27 April 2016 and from 1.40 p.m. to 8 p.m on 28 April 2016 and Mr Proshin ’ s detention from 1.40 p.m. on 28 April 2016 to 4 p.m. on 29 April 2016 properly recorded and effected “in accordance with a procedure prescribed by law” (see Kasparov v. Russia , no. 53659/07, § 55, 11 October 2016, and Frumkin v. Russia , no. 74568/12, § 150, 5 January 2016)?

(b) Was the deprivation of liberty to which they were sentenced tainted with arbitrariness on account of an alleged lack of impartiality of the trial court (see, mutatis mutandis , Menesheva v. Russia , no. 59261/00, § 92, ECHR 2006 ‑ III, and Kakabadze and Others v. Georgia , no. 1484/07, § 77, 2 October 2012)?

2. As regards the alleged violations of Article 6 §§ 1 and 3 (c) of the Convention –

(a) Did the applicants have access to legal assistance when the reports on administrative offences were being drawn up and their cases tried in court (see Mikhaylova v. Russia , no. 46998/08, §§ 76-102, 19 November 2015)?

(b) Was the exclusion of members of the public from the applicants ’ trials compatible with the requirements of a public hearing and transparency of the proceedings (see Zagorodnikov v. Russia , no. 66941/01, §§ 18-27, 7 June 2007)?

(с) Did the evidence produced by the applicants in respect of conduct of Judge G. give rise to legitimate fears that she lacked impartiality, whether from the point of view of the external observer (“objective test”) or as a matter of her personal conviction (“subjective test”) (see Micallef v. Malta [GC], no. 17056/06, §§ 93-98, ECHR 2009, and Vardanyan and Nanushyan v. Armenia , no. 8001/07, §§ 74-76 and 82, 27 October 2016)? The Government are requested to submit the findings of an inquiry if such was instituted in connection with the audio recording.

3. Has there been a violation of Article 10 of the Convention in respect of both applicants? In particular, did the ban on unauthorised filming in the police premises have an accessible and foreseeable legal basis? Was the applicants ’ conviction necessary in a democratic society? Did the courts give relevant and sufficient reasons in finding the applicants guilty of an administrative offence and for imposing a custodial sentence, in the circumstances of the case?

4. Was it compatible with Article 2 of Protocol No. 7 that the custodial sentence had been fully served before the appeal hearing could take place (see Shvydka v. Ukraine , no. 17888/12 , §§ 46-55, 30 October 2014, and Tsvetkova and Others v. Russia , nos. 54381/08 and 5 others , §§ 181-91, 10 April 2018 ) ?