Communicated on 14 May 2018

THIRD SECTION

Application no. 76249/17 Nikolay Sergeyevich ZBOROSHENKO against Russia lodged on 5 December 2009

STATEMENT OF FACTS

The applicant, Mr Nikolay Sergeyevich Zboroshenko , is a Russian national, who was born in 1980 and lives in Moscow.

A. The circumstances of the case

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

The applicant is a human rights activist. On 24 August 2008 at 12.15 p.m. he took part in a stationary demonstration (picket) at the Red Square in Moscow. This public event was aimed at drawing attention to the situation with human rights in Russia and reminding of a picket which had been held 40 years ago after the entry of the Soviet troops in Czechoslovakia.

Shortly after the beginning of the event it was terminated by the police. The applicant was arrested and escorted to the police station where he spent three hours. The police officers compiled an administrative offence record in his respect stating that the applicant had participated in a group public event held without prior notification of the au thorities, in breach of Article 20.2 § 2 of the Code of Administrative Offences.

On 22 October 2008 the justice of the peace of the 369th court district of the Tverskoy District of Moscow found the applicant guilty of breach of Article 20.2 § 2 of the Code of Administrative Offences and sentenced him to a fine of 500 Russian roubles, (about 14 euros at the time). The justice of the peace relied on the statements of police officer M., who had participated in the termination of the picket at the Red Square on 24 August 2008. He stated that the applicant had taken part in that public event and that he had a banner reading “For your and our freedom! ”.

On 19 November 2008 the Tverskoy District Court of Moscow upheld the judgment.

In separate proceedings, on 17 December 2008 the Tverskoy District Court of Moscow dismissed the applicant ’ s claim lodged under Chapter 25 of the Code of Civil Procedure. The applicant sought to establish the unlawfulness of the police officers ’ acts, namely the dispersal of the picket on 24 August 2008 and the arrest of its participants. The District Court relied on the findings made in the administrative proceedings against the applicant and considered that the police had acted lawfully because the picket had been held without prior notification. The applicant received this judgment by mail on 4 March 2009.

The applicant appealed against the judgment of 17 December 2008 to the Moscow City Court. The examination of his appeal was scheduled for 9 July 2009. On 30 June 2009 the applicant lodged a request for adjournment of the case owing to his absence on the scheduled date in Moscow.

On 29 August 2009 the applicant received a postal notice that his request of 30 June 2009 had been dispatched to the Moscow City Court only on 10 July 2009. The appeal against the judgment of 17 December 2008 was examined in his absence and dismissed.

On 26 October 2009 the applicant received the full text of the Moscow City Court ’ s decision at the r egistry of the court.

B. Relevant domestic law and practice

For a summary of domestic law and practice concerning regulations relating to the conduct of public events, liability for breaches committed in their course, administrative escorting and arrest, and civil proceedings, see Lashmankin and Others, nos. 57818/09 and 14 others , §§ 216-312, 7 February 2017.

Until 15 September 2015 the procedure for examining complaints about decisions, acts or missions of State and municipal authorities and officials was governed by Chapter 25 of the Code of Civil Procedure, and the Judicial Review Act (Law no. 4866-1 of 27 April 1993 on judicial review of decisions and acts violating citizens ’ rights and freedoms ) .

In particular, Chapter 25 of the Code provided that a citizen might lodge a complaint before a court about an act or decision by any State or municipal authority or official if he considered that the act or decision had violated his rights and freedoms (Article 254). The complaint might concern any decision, act or omission which had violated the citizen ’ s rights or freedoms, had impeded the exercise of rights or freedoms, or had imposed a duty or liability on him (Article 255). The complaint had to be lodged with a court of general jurisdiction within three months of the date on which the complainant had learnt of the breach of his rights (Article 256).

COMPLAINTS

1 . The applicant alleges a violation of Article 5 § 1 of the Convention on account of his administrative arrest at the venue of the public event and escorting to the police station. He further complains that the administrative proceedings against him were conducted with numerous procedural shortcomings in breach of Article 6 of the Convention: ( i ) the court which examined his administrative case was not ‘ independent and impartial ’ owing to the lack of a prosecuting party; (ii) the domestic courts relied exclusively on evidence submitted by the police officers; (iii) the Moscow City Court examined the applicant ’ s appeal in his absence; (iv) the applicant was not afforded an opportunity to question a police officer whose report was taken into account by the domestic courts when finding the applicant guilty.

2 . The applicant also complains under Article 11 of the Convention that the termination of his participation in a peaceful public event was not necessary in a democratic society. He further submits that civil proceedings concerning the alleged unlawfulness of the police officers ’ acts did not constitute an effective remedy in terms of Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Having regard to the applicant ’ s specific allegations in respect of his escorting to the police station and the administrative arrest, was the applicant ’ s deprivation of liberty compatible with the requirements of Article 5 § 1 of the Convention? In particular:

(a) What were the legal grounds for the applicant ’ s arrest and escorting to the police station?

(b) Did the applicant ’ s deprivation of liberty pursue any aim enumerated in Article 5 § 1 of the Convention?

2. Having regard to the applicant ’ s specific allegations in respect of the administrative proceedings, did he receive a fair hearing by an independent and impartial tribunal in accordance with Article 6 §§ 1 and 3 (c) and (d) of the Convention? The Government are invited to answer, in particular, the following questions:

(a) Did the lack of a prosecuting party entail violations of the principles of the equality of arms, adversarial procedure and impartiality under Article 6 § 1 of the Convention (see Karelin v. Russia , no. 926/08 , §§ 58-85, 20 September 2016)?

(b) Did the procedure in which the evidence was admitted and examined comply with the principles of adversarial proceedings and equality of arms, as required by Article 6 § 1 of the Convention (see Kasparov and Others v. Russia , no. 21613/07 , § 56-67, 3 October 2013) ?

(c) Did the applicant ’ s absence from the appeal hearing before the Moscow City Court violate his right to an adversarial trial and the right to defend himself in person or through legal assistance under Article 6 §§ 1 and 3 (c) of the Convention?

(d) Was the applicant able to examine witnesses against him as required by Article 6 § 3 (d) of the Convention?

3. Has there been an interference with the applicant ’ s right to freedom of peaceful assembly? If so, was that interference prescribed by law and “necessary in a democratic society” within the meaning of Article 11 § 2 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 5 and 11, as required by Article 13 of the Convention? In particular, can civil proceedings concerning the alleged unlawfulness of the police officers ’ acts be considered an effective remedy, within the meaning of that provision? If not, has the applicant complied with the six-month rule?