Communicated on 9 July 2019

THIRD SECTION

Application no. 22156/19 Veronika Nikolayevna NOVOZHENOVA against Russia lodged on 15 April 2019

STATEMENT OF FACTS

The applicant, Ms Veronika Nikolayevna Novozhenova , is a Russian national, who was born in 1999 and lives in Murmansk. She is represented before the Court by Mr O. Beznisko , a lawyer practising in Moscow.

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

The applicant is member of the so-called Endless Protest civic movement in Moscow. On 6 October 2018 certain members of that movement held spontaneous demonstrations and were arrested and taken to the Tverskoy police station later in the evening.

The applicant learnt about the arrest and, around 11.40 p.m., tried to enter the police station but the door was locked. Thereafter the applicant and nine other people remained on the pedestrian sidewalk next to the police station, shouting slogans and protesting against the arrests of their friends and claiming their release. According to the applicant, all demonstrators behaved peacefully and did nothing to impede access into the police station; they only started to hold each other ’ s hands in a “human chain” when the police started to arrest them (see below).

At 10 p.m. the applicant was arrested in relation to an offence under Article 19.3 § 1 of the Code of Administrative Offences (CAO). The applicant remained deprived of liberty until and during the trial on 8 October 2018 (see below).

On 8 October 2018 judge Z. in the Presnenskiy District Court of Moscow convicted the applicant for impeding the police officers ’ access to the police station (when escorting an arrestee) during her protest action on 6 October 2018. In the court ’ s view, this amounted to impediment to the exercise of official duties by a public official ( воспрепятствование исполнению служебных обязанностей ), which is punishable under Article 19.3 § 1 of the CAO. The court sentenced the applicant to ten days of administrative detention. She started to serve the sentence on the same evening.

On 8 October 2018 a police officer compiled an offence record accusing the applicant of an offence under Article 20.2 § 6.1 of the CAO for impeding access to the police station during the protest action on 6 October 2018. The applicant learnt about this on 16 October 2018 (see below).

At 11.55 p.m. on 16 October 2018 the applicant was released and arrested again in relation to the accusation under Article 20.2 § 6.1 of the CAO.

The applicant was taken to the police station. On 17 October 2018 judge Z. convicted the applicant for impending access to the police station during her protest action on 6 October 2018 and sentenced her to twelve days of administrative detention.

On 18 October 2018 the Moscow City Court upheld the judgment of 8 October 2018.

The applicant appealed against the judgment of 17 October 2018 indicating that the continuation of the proceedings in that second case constituted a violation of the ne bis in idem principle.

On 22 October 2016 the City Court upheld the judgment of 17 October 2018. The appeal court made the following findings:

(a) The offence (presumably, meaning the offence under Article 20.2 § 6.1 of the CAO) being punishable by detention, “in view of the specific circumstances it [had been] impossible to compile an offence record on the spot where the offence had been discovered”; recourse to the escort and arrest procedures had been lawful;

(b) There was no grounds for discontinuing the prosecution under Article 20.2 § 6.1 because the earlier conviction under Article 19.3 of the CAO concerned a different protected object while Article 20.2 was lex specialis vis-à-vis Article 19.3 of the CAO.

Article 19.3 § 1 of the CAO provides that the following conduct is punishable with a fine of from RUB 500 to 1,000 or administrative detention for up to fifteen days: ( i ) non-compliance with a lawful order or request made by a police officer, a military officer, a detention facility officer or a National Guard officer, in connection with the exercise of his or her duties relating to securing public order and public safety; (ii) impediment to the exercise of official duties by a public official ( воспрепятствование исполнению служебных обязанностей ).

Article 20.2 § 6.1 of the CAO punishes with a fine or up to fifteen day ’ s administrative detention the following actions: participation in a non ‑ approved public event where such participation has impeded the functioning of: vital objects ( объекты жизнеобеспечения ), transport or social infrastructure, communications; movement of pedestrians or vehicles; access to residential premises or buildings relating to transport or social infrastructure.

Pursuant to Article 4.1 § 5 of the CAO, no one must be found administratively liable twice for the “same administrative offence”. Under Article 24.5 § 1 proceedings under the CAO should not be initiated or, if initiated, should be discontinued where there is no corpus delicti (subparagraph 2) or where there is a decision to impose a sentence or to discontinue the proceedings on account of the very same fact of unlawful actions by the same person, in so far as the offence is proscribed by the very same Article(s) of the CAO (subparagraph 7).

Where there are several records of administrative offences in respect of the same person, each record is submitted to a court to be examined separately. A court issues a separate judgment in respect of each related offence (Article 4.4 § 1 of the CAO and Ruling No. 5 of 24 March 2005 by the Plenary Supreme Court of Russia (paragraph 4(8)). Where one (in )action on the part of the defendant concerns several offences under different Articles of the CAO and which fall within the jurisdiction of the same court, an administrative sentence is imposed with reference to the strictest statutory penalty. Where there are grounds for imposing a sentence in accordance with the rule set out in Article 4.4 § 2, the cases should be joined and examined in one set of proceedings resulting in a single judgment (paragraph 4(9) of the Ruling).

Article 20.2 § 5 of the CAO provides that the following conduct is punishable with a fine of from RUB 10,000 to RUB 20,000 or up to forty hours of community work: violation by a participant in a public event of the established procedure for a public event. As specified in paragraph 33 of Ruling No. 28 of 26 June 2018 by the Plenary Supreme Court of Russia, the above-mentioned violation requires the court to establish that the demonstrator did not comply with (or violated) one of the obligations (or prohibitions) incumbent on demonstrators under section 6(3) and (4) of the Public Events Act. For instance, one such obligation requires compliance with all legal orders made by the police, military officers or National Guard officers. The Plenary Supreme Court indicated that a demonstrator ’ s non ‑ compliance with such orders or resistance to those officers in the exercise of their official duties in the course of a public event falls within the ambit of an offence under Article 20.2 § 5 of the CAO. “In this specific context” this provision is lex specialis vis-à-vis Article 19.3 § 1 of the CAO.

Applying the above interpretation in a review decision issued under Article 30.12 of the CAO on 29 June 2018 in case no. 78-AD18-5, a judge of the Supreme Court of Russia stated:

“[The defendant] was prosecuted on the grounds that as a participant in a non ‑ notified public event, she had not complied with lawful orders of a police officer requiring her to cease her participation in that public event ... In the present case [Article 20.2 § 5 of the CAO] is lex specialis vis-à-vis Article 19.3 § 1 of the CAO ... Thus, the [defendant ’ s] conduct does not constitute corpus delicti under that provision ... At the same time, it is not possible in the present case to reclassify the defendant ’ s actions for the following reasons ... Reclassification from one Article of the CAO to another is possible when the type of object protected by those provisions ( единый родовой объект посягательства ) is the same and where a new sentence would not worsen the position of the defendant ... Articles 19.3 and 20.2 are contained in different Chapters of the CAO ... and protect different types of objects ... Article 20.2 § 5 provides for a stricter sentence than Article 19.3 § 1 ... Pursuant to Article 4.1 § 5 of the CAO, no one should be found liable more than once for the same administrative offence ...”

COMPLAINTS

Referring to Article 4 § 1 of Protocol No. 7 to the Convention, the applicant complains about the continued prosecution under Article 20.2 § 6.1 of the CAO after the appeal decision on the charge under Articles 19.3 § 1.

The applicant also raises issues under Article 5 § 1, 6, 10 and 11 of the Convention.

QUESTIONS TO THE PARTIES

1. Was there a violation of Article 4 § 1 of Protocol No. 7 to the Convention on account of the continued prosecution under Article 20.2 § 6.1 of the CAO after the appeal decision on the charge under Articles 19.3 § 1? In particular, what is the scope of the lex specialis and ne bis in idem principles under the CAO? Are they similar to the ne bis in idem principle under the Court ’ s case-law under Article 4 § 1 of Protocol No. 7? Does Russian law require a judge in a second CAO case to discontinue it on account of the final judgment in another case relating to the prosecution for the same facts or facts that are substantially the same or overlap to a significant extent? Is this course of action available where the first final proceedings concern Article 19.3 of the CAO (compare with of Ruling No. 28 of 26 June 2018 by the Plenary Supreme Court of Russia paragraph 33)?

Having regard to the Court ’ s established case-law in similar cases:

2. Was there a violation of Article 5 § 1 of the Convention on account of the applicant ’ s administrative escorting and arrest ( административные доставление и задержание ) from 16 to 17 October 2018? In particular, was any alleged impossibility to compile the offence record under Article 20.2 § 6.1 of the CAO on the spot on 6 October 2018 a proper statutory justification for applying the escort procedure ten days later, that is on 16 October 2018? Did the national authorities provide any reasoning as regards the statutory requirement of “exceptional circumstances” for then applying the arrest procedure, in particular given that the offence record had already been compiled on 8 October 2018?

3. Were there violations of Article 6 §§ 1 and 3 (d) of the Convention on account of the lack of a prosecuting party at the trial hearings in the CAO cases and the refusals to examine witnesses against the applicant or on behalf of the defence?

4. Were there violations of Articles 10 and 11 of the Convention on account of the applicant ’ s administrative escorting and arrest ( административные доставление и задержание ) from 6 to 8 and then from 16 to 17 October 2018 and her prosecution for administrative offences? In particular:

- Did the Russian courts assess whether the nuisance caused by the applicant (and hers fellow protestors) had caused disruption to ordinary life exceeding minor disturbance that follows from normal exercise of the right of peaceful assembly in a public place (compare Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 143, 15 November 2018)? In particular, was it convincingly established that the applicant ’ s conduct around midnight at the sidewalk next to the police station had impeded movement of pedestrians or vehicles, or the functioning of any “vital objects”?

- Was it practicable to lodge in advance a prior notification about a “public event” arising from a spontaneous reaction to circumstances that happened in the evening of 6 October 2018? Did Russian law accommodate the situation of a genuine spontaneous protest (see Navalnyy , cited above, §§ 140-42, and Lashmankin and Others v. Russia , nos. 57818/09 and 14 others, §§ 451-56 and 473, 7 February 2017)?