Communicated on 15 May 2017

THIRD SECTION

Application no. 10252/10 Yuriy Borisovich BASOK against Russia lodged on 24 January 2010

STATEMENT OF FACTS

The applicant, Mr Yuriy Borisovich Basok , is a Russian national, who was born in 1969 and lives in Zarechnyy . He is represented before the Court by Mr Anton Leonidovich Burkov and Mr Vladimir Yakovlevich Kapustin, lawyers practising in Yekaterinburg.

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

A. Events on 8 January 2009 and related proceedings

On 8 January 2009, acting as a freelance journalist for an Internet news portal, the applicant was present at the venue of a public protest against an increase in the tax on foreign imported vehicles. Seeing Mr D., a senior official of the traffic police in charge of supervising the event, park his vehicle at a pedestrian crossing, the applicant or some other journalists present at the event venue made video recordings and took photographs of the vehicle.

Allegedly, Mr D., inter alia , slapped the applicant in the face, tried to strangle him, and damaged his photo camera. According to the applicant, this was seen by other officers and journalists. The matter received some media coverage.

It appears that on 23 January 2009 the applicant applied to bring a private criminal prosecution for battery and insulting behaviour against D., but this application was turned down since at the time a criminal investigation was already pending (see below).

On 27 January 2009 the authorities opened a criminal investigation against D. in respect of the offences of wilful damage to property and abuse of power by a public official (Article 167 and of the Criminal Code). The applicant was given victim status in the criminal case and also lodged civil claims against D. The case was submitted for trial before the Verkh-Isetskiy District Court of Yekaterinburg in October 2009. In December 2009 the prosecutor dropped the charges, stating that there was insufficient evidence. On 21 December 2009 the judge validated this decision, referring to Article 246 of the Code of Criminal Procedure, and discontinued the case for lack of corpus delicti . On 3 February 2010 the Sverdlovsk Regional Court upheld the judgment, noting that the dropping of charges inevitably resulted in a judicial decision to discontinue a criminal case.

The applicant again attempted to bring a private prosecution against D. for battery and insulting behaviour (under Articles 116 and 130 of the Criminal Code). On 27 January 2010 a justice of the peace refused to examine the case because D. had already been subject to criminal prosecution in respect of the same accusation ( обвинение ) relating to the same facts and a decision on it had been delivered on 21 December 2009. On 28 June 2010 the District Court upheld the decision of 27 January 2010. On an unspecified date, the Regional Court dismissed a cassation appeal lodged by the applicant.

The applicant lodged a constitutional complaint challenging Article 246 of the Code of Criminal Procedure. By decision no. 1711-O-O of 16 December 2010 the Constitutional Court of Russia declined to hear this complaint, noting that while a public prosecutor ’ s decision to drop charges did entail the discontinuation of a criminal case, it did not prevent the person concerned from lodging a separate civil claim later on and from securing the examination of such claim.

B. Events on 31 January 2009 and related proceedings

At 11.30 a.m. on 31 January 2009 the applicant and two others were stopped by the police and then taken to a police station while they were apparently on their way to take part in a public event in the form of a meeting ( митинг ) organised by the local branch of the Communist Party that was scheduled to start at 1 p.m. According to the applicant, it was explained to him that he had been stopped because his appearance matched the description of a suspect in an unspecified robbery.

The police searched the applicant and seized several leaflets from a batch (entitled “Trust yourself, not the authorities”, “The Government – to be dissolved”, and “A call to the police”) that the applicant had in his bag, as well as an edition of a newspaper, People ’ s Friend .

The applicant was released two and a half hours later, after the end of the public event. No arrest record or other record was compiled in relation to the robbery or any other offence.

The police submitted the leaflets to the anti-extremism unit of the Department of the Interior. The latter ordered a linguistic expert report, which concluded that the leaflets contained incitements to racial, religious, ethnic and other hatred. The report furthermore concluded that both the leaflet entitled “Trust yourself, not the authorities” and the newspaper contained calls to get ready for difficult times and thus fostered a “depressive attitude”, which in turn incited social enmity between different groups of the population. Overall, the material reflected the ideology promoted by the so-called National Bolshevik Party ( Национал ‑ большевистская партия ), a prohibited organisation.

On 27 February 2009 the authorities refused to initiate criminal proceedings in respect of charges of extremism because the above ‑ mentioned materials had not been disseminated.

In February 2009 the applicant instituted court proceedings, challenging his arrest. The applicant argued as follows:

- the real purpose of his being taken to the police station had been to prevent him from taking part in the demonstration and from distributing leaflets; at the police station he had not been interviewed in relation to any robbery and no related investigative measures had been carried out – instead, he had been “dealt with” by officers of the anti-extremism unit of the Department of the Interior;

- the police had not compiled a written record in respect of his deprivation of liberty.

The police submitted to the court a list containing descriptions of several dozen alleged robbers.

On 13 July 2009 the Kirovskiy District Court of Yekaterinburg delivered a judgment. Having given a long summary of the anti-extremist legislation and the authorities ’ actions in relation to the applicant ’ s leaflets, the court concluded that the applicant had been subject to the escort procedure ( доставление ) under Article 27.2 of the Code of Administrative Offences (“the CAO”) and that the use of this procedure had been lawful since the police had stated that the applicant had matched the description(s) of suspects issued in the course of pending robbery investigation(s). However, the court considered that the failure to compile an escort record had been unlawful. Lastly, the court summarily dismissed the remainder of the claims as unsubstantiated.

The applicant appealed, arguing, inter alia , that he had not been accused or suspected of any administrative offence; thus, it had been unlawful to use the escort procedure under the CAO since his taking to the police station could and did not pursue the statutory aim of compiling an administrative offence record; in any event, this finding contradicted the authorities ’ explanation regarding his resemblance to a robber.

On 20 October 2009 the Sverdlovsk Regional Court upheld the judgment, endorsing its reasoning.

The Kirovskiy district prosecutor ’ s office instituted court proceedings, seeking to have the leaflets declared to be extremist material. It appears that at least two court hearings were held in March 2010. The outcome of the case is unclear.

COMPLAINTS

Regarding the events of 8 January 2009, the applicant complains that the respondent State should be held liable for a violation of Article 10 of the Convention in relation to his mistreatment by an on-duty public official while he (that is to say the applicant) was gathering material intended to be used for news reporting. The applicant also complains that the damage caused to his camera amounted to a violation of Article 1 of Protocol No.1 to the Convention. Lastly, he argues that he was deprived of effective remedies in relation to the above violations in view of the biased and arbitrary decision to drop the charges and the courts ’ inability to oppose this decision, thereby rendering impossible criminal and civil liability on the part of the official responsible or the State.

Furthermore, the applicant complains under Article 5 of the Convention that on 31 January 2009 he was subjected to an unlawful and arbitrary deprivation of liberty with the sole purpose of preventing him from participating in the public event and from distributing leaflets; that the arbitrary findings reached by judicial review proceedings barred him from claiming compensation in relation to this deprivation of liberty.

QUESTIONS TO THE PARTIES

Regarding the events of 8 January 2009:

1.1. Has there been an interference with the applicant ’ s freedom of expression (in particular his right to receive and impart information and ideas) within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

1.2. Was there a violation of Article 1 of Protocol No.1 to the Convention in respect of the damage caused to the applicant ’ s property by an on-duty public official?

1.3. Did the applicant have at his disposal an effective domestic remedy for his above-mentioned complaints, as required by Article 13 of the Convention (compare Abakarova v. Russia , no. 16664/07 , § 104, 15 October 2015; and Denis Vasilyev v. Russia , no. 32704/04 , § 136, 17 December 2009)?

Regarding the events of 31 January 2009:

2.1. Was the applicant deprived of his liberty on 31 January 2009, in breach of Article 5 § 1 of the Convention? In particular, did that deprivation of liberty fall within any of the sub-paragraphs of this provision (compare Ostendorf v. Germany , no. 15598/08 , §§ 63-105, 7 March 2013) ? Was the applicant ’ s detention “in accordance with a procedure prescribed by law” or arbitrary? Was the applicant suspected of any administrative offence when taken to the police station on that date?

2.2. Did the applicant have an effective and enforceable right to compensation for his unlawful and arbitrary detention, as required by Article 5 § 5 of the Convention?