Communicated on 27 April 2016

THIRD SECTION

Application no. 55325/15 Leonid Mikhaylovich RAZVOZZHAYEV against Russia lodged on 10 September 2015

STATEMENT OF FACTS

The applicant, Mr Leonid Mikhaylovich Razvozzhayev, is a Russian national who was born in 1973. He is represented before the Court by Mr D. Agranovskiy, a lawyer practising in Elektrostal.

The applicant is a political activist and a member of an opposition movement, “Levyy Front” and a close ally of Mr Udaltsov, the movement ’ s leader. In 2012 he took part in a political rally held on 6 May 2012 at Bolotnaya Square in Moscow. He is currently serving a prison sentence of four and a half years following his conviction for conspiracy to organise mass disorders during that rally.

A. The circumstances of the case

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

1. The public assembly of 6 May 2012

On 23 April 2012 five individuals, including Mr Udaltsov, gave notice to the mayor of Moscow of a public demonstration. They intended to hold a march and a meeting involving an estimated 5,000 participants on 6 May 2012 “to protest against abuse and fraud in the course of the elections to the State Duma and of the President of the Russian Federation, and to demand fair elections [and] respect for human rights, the rule of law and the international obligations of the Russian Federation”.

On 3 May 2012, following negotiations with the organisers of the demonstration, the Moscow Department of Regional Security approved the route from Kaluzhskaya Square to Bolotnaya Square, the meeting venue. The march was to begin at 4 p.m on 6 May 2012 and had to finish by 7.30 p.m. The estimated number of participants was indicated as 5,000.

At 8 p.m. on 4 May 2012 the first deputy head of the Moscow Department of Regional Security held a working meeting with the organisers of the Bolotnaya Square demonstration, at which they discussed security issues.

On 5 May 2012 the Moscow Department of Regional Security asked the Moscow city prosecutor ’ s office to issue a warning to the organisers against exceeding the notified number of participants and against erecting tents at the meeting venue, an intention that had allegedly been indicated by demonstration organisers who had attended the working meeting. The Moscow Department of Regional Security also referred to information found on the Internet indicating that the demonstrators would go to Manezhnaya Square after the meeting. On the same day the Tsentralnyy district prosecutor ’ s office issued the warning in question to two of the organisers.

It is not clear from the applicant ’ s submissions to what extent was involved in the organisation of the 6 May 2012 rally, but he was present throughout the events of that day.

At about 1.30 p.m. on 6 May 2012 the organisers were allowed into Bolotnaya Square to set up the stage and sound equipment. The police searched the vehicles delivering the equipment and seized three tents. They arrested several people for bringing the tents to the meeting venue.

At the beginning of the march, a police officer, A.M., met the organisers at Kaluzhskaya Square to clarify any outstanding organisational matters and to have them sign an undertaking to preserve public order during the demonstration. He specifically asked Mr Udaltsov to ensure that no tents were placed on Bolotnaya Square and that the participants comply with the limits in respect of the place and time allocated for the demonstration. The organisers gave their assurances in respect of those issues and signed the undertaking.

The march began at 4.30 p.m. at Kaluzhskaya Square. It passed along Yakimanka Street peacefully and without disruption. The turnout exceeded expectations, but there is no consensus as to the exact numbers. The official estimate was that there had been 8,000 participants, whereas the organisers considered that there had been about 25,000. The media reported different numbers, some significantly exceeding the above estimates.

At about 5 p.m. the march approached Bolotnaya Square. The leaders found that the layout of the space allocated for the meeting and the placement of the police cordon did not correspond to their expectations. The leaders of the march, including Mr Udaltsov, announced that they were going on a “sit-down strike” and sat on the ground. According to the official version, the protestors stopped because they intended to break the cordon and to incite disorder. The media reported that Mr Udaltsov had demanded that the protestors be given air time on Russia ’ s main television channels, that the presidential inauguration of Mr Putin be cancelled and that new elections be called. The police authorities reportedly replied that the strike was an attempt to incite mass disorder. The crowd around the sit ‑ down protest built up, and after some time it broke through the police cordon, leading to some clashes with the police. It follows from the domestic judgments that the applicant had lead some groups of activists to break the cordon, a finding which the applicant contested during the domestic proceedings and in his submissions before the Court. He claims to have remained strictly peaceful during these events.

At 6 p.m., at the request of police officer A.M., one of the organisers announced from the stage that the meeting was ended. The police ordered the participants to leave the venue and began dispersing them. Many protestors were arrested.

At 6.20 p.m., Mr Udaltsov climbed onto the stage to address the meeting. At this point, several police officers arrested Mr Udaltsov and took him away. There is no information whether the applicant was arrested on that day and for how long he remained at the sight of the rally.

The dispersal of the meeting continued for at least another hour until the venue was fully cleared of all protestors.

2. Criminal proceedings in the “mass disorder” case

On 6 May 2012 the first deputy head of the Moscow Department of Regional Security drew up a report summarising the security measures taken on that day in Moscow and stating that 656 protestors had been detained. The report stated that it was Mr Udaltsov, among others, who had provoked the standoff and the breaking of the police cordon and that he had called on the demonstrators to stay at the meeting venue to take part in an indefinite protest action.

On the same day the Investigative Committee of the Russian Federation opened a criminal investigation into the alleged mass disorder and violent acts against the police (offences under Articles 212 § 2 and 318 § 1 of the Criminal Code).

On 28 May 2012 an investigation was also launched into the criminal offence of organising mass disorder (offences under Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.

On 5 October 2012 the NTV television channel showed a film, Anatomy of Protest, Part Two , which featured Mr Udaltsov and his associates, the applicant and Mr L., plotting a foreign-backed coup and riots.

On 10 October 2012 the Investigative Committee questioned Mr Udaltsov on the basis of the allegations made in the film Anatomy of Protest, Part Two .

On 14 October 2012 the applicant left Moscow for Kiev, Ukraine.

On 16 October 2012 the applicant was charged with conspiracy to organise mass disorder in various Russian regions (Articles 30 § 1 and 212 § 1 of the Criminal Code).

On 21 October 2012 the applicant was brought before the Investigative Committee of the Russian Federation where he wrote a confession stating that he was guilty as charged. On the same day the Basmannyy District Court of Moscow ordered the applicant ’ s detention pending the criminal investigation.

On 25 April 2013 the Moscow City Court examined a case against Mr L. in accelerated proceedings because the defendant had earlier entered into a plea-bargaining agreement. It convicted him of organising mass disorder and imposed a suspended prison sentence of two and a half years.

On an unspecified date the investigator decided to bar the applicant ’ s legal counsel, Mr F . , from participating in the proceedings because he was to be examined as a witness. Subsequently the court disallowed Mr F . ’ s participation as a witness in this case (see below).

On 4 December 2013 the Prosecutor General ’ s Office issued an indictment against the applicant, which was submitted to the Moscow City Court for the trial. On 20 December 2013 the court listed the trial for 26 December 2013. On the latter date the court returned the case to the prosecutor ’ s office for rectification of a number of procedural flaws.

On 16 January 2014 the case was again submitted to the Moscow City Court.

On 6 February 2014 the Moscow City Court listed the trial for 18 February 2014. According to the applicant, from that date and until 24 July 2014 the trial took place in hearing room no. 635 at the Moscow City Court. During the hearings the applicant was confined in a glass cabin which was virtually soundproof. The glass partition which separated the defendant from his counsel and the rest of the hearing room made it impossible for him to talk with his lawyer other than through a microphone, rendering any such conversation audible to everyone present in the hearing room. The bench inside the cabin had no backrest, and there was no desk or other furniture.

The court hearings were held on four days per week. The time the applicant spent being escorted to and from the courthouse and at the court hearings left him less than eight hours of sleep per day. The applicant requested a less intensive hearing schedule, but the court refused to amend it.

During the trial the applicant asked to be able to call and examine a number of defence witnesses, but the request in respect of five of them was refused on the grounds that those people had earlier been present in the same proceedings, which the applicant disputed. His request to be permitted to examine ten defendants in related criminal cases was dismissed on the ground that they were interested parties.

On 12 and 13 March 2014, in the applicant ’ s criminal case, the Moscow City Court examined Mr L. as a witness.

On 18 March 2014 the Moscow City Court examined police officer A.M. as a witness. When cross-examined by the applicant ’ s counsel, he refused – on the grounds of confidentiality – to answer a number of questions. The court did not assess the grounds of confidentiality, but warned the applicant ’ s counsel not to ask questions that might raise such issues.

On 8 April 2014 witness M., an NTV television journalist, testified that the video and audio recordings used in the film Anatomy of Protest, Part Two had been given to him outside his house by an unknown person.

On 17 April 2014 the Moscow City Court examined the film Anatomy of Protest, Part Two as evidence.

On 13 May 2014 the court examined the video and audio recordings received by witness M. from the unidentified individual. The applicant ’ s objections to the admissibility of that material were dismissed.

On 20 May 2014 the court began to examine Mr F., the applicant ’ s former legal counsel, but decided that his testimony and earlier statements were inadmissible because of his previous involvement in the case as counsel.

On 18 June 2014 the judge presiding over the proceedings was appointed to the Supreme Court as a judge as of 6 August 2012. He continued to examine the applicant ’ s case.

On 30 June 2014 the Moscow City Court dismissed the applicant ’ s request to be allowed to call and examine the victims in his case as witnesses.

On 24 July 2014 the Moscow City Court found the applicant and Mr Udaltsov guilty of organising mass disorder on 6 May 2012. The judgment contained the following findings:

“ The organisation of mass disorder may take the form of incitement and controlling a crowd ’ s actions, directing it to act in breach of the law, [or] putting forward various demands to the representatives of the authorities. This activity may take different forms, in particular the planning and preparation of such actions; the selection of groups of people to provoke and fuel mass disorder; incitement to commit [such disorder] by filing petitions and creating slogans, making calls and appeals capable of electrifying the crowd and causing it to feel outraged; [and] influencing people ’ s attitudes by disseminating leaflets, employing the mass media, meetings and various forms of agitation to devise a plan for crowd activity that [channels] people ’ s moods [and] accumulated grievances [and directly steers] the crowd towards engaging in mass disorder.

... this offence is considered [to have been] committed as soon as at least one of the actions enumerated under Article 212 § 1 of the Criminal Code has been carried out ...

... the criminal offence of organisation of mass disorder is considered [to have been] committed when organisational activity has been carried out, and does not depend on the occurrence or non-occurrence of harmful consequences.

...

It is therefore fully proven that the mass disorder organised by [the defendants] ... led to the destabilisation of public order and peace in a public place during the conduct of a public event; put a large number of people in danger, including those who had come to fulfil their constitutional right to congregate in peaceful marches and meetings; [and] led to considerable psychological tension in the vicinity of Bolotnaya Square in Moscow, accompanied by violence against the police ... and the destruction of property ...”

The Moscow City Court sentenced the applicant and Mr Udaltsov to four and a half years ’ imprisonment.

On 18 March 2015 the Supreme Court of the Russian Federation upheld the judgment of 24 July 2014, having excluded one of the charges which formed the basis of the applicant ’ s conviction as time-barred. During the appeal hearing the applicant requested the court to change his measure of restraint to allow him to visit his seriously ill mother, who lived in Moscow, but the court refused this request.

On 8 April 2015 the applicant ’ s mother died. The applicant was refused leave from detention to attend her funeral.

On 22 May 2015 the applicant was transferred to a correctional colony in the Irkutsk Region to serve his sentence, but shortly thereafter he was transferred to another correctional colony in the Krasnoyarsk Region.

On 22 June 2015 the applicant applied to the Constitutional Court of the Russian Federation with a constitutional complaint. He challenged the provisions of the Code of Criminal Procedure which had allowed accelerated proceedings following Mr. L. ’ s plea-bargain, claiming that those proceedings had led to a violation of the rights of the defendant ’ s co ‑ accused tried separately, contrary to the constitutional guarantees of fair hearing.

On 16 July 2015 the Constitutional Court dismissed the applicant ’ s constitutional complaint.

On 25 January 2016 the Supreme Court of the Russian Federation refused to re-examine the applicant ’ s case in supervisory review proceedings.

B. Relevant domestic law

The Criminal Code of the Russian Federation provides as follows:

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 by armed resistance to a public official shall be punishable by four to ten years ’ deprivation of liberty.

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

3. The instigation of mass disorder provided for by paragraph 1 of this Article, or the instigation of participation in it, or the instigation of violence against citizens, shall be punishable by restriction of liberty for up to two years, or community work for up to two years, or deprivation of liberty for the same term.”

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 Russian roubles or the equivalent of the convicted person ’ s wages for 18 months, or community work for up to five years, or up to five years ’ deprivation of liberty ...”

COMPLAINTS

The applicant complains under Article 3 of the Convention about the excessively long pre-trial detention and the excessively intensive schedule of the court hearings. He submits that his health deteriorated during this period and that he was not afforded medical assistance. He also complains under the same provision that he has been sent to serve his prison term in very remote correctional facilities, which has hindered access to medical care and contacts with his family and lawyers.

Under Article 6 § 1 of the Convention the applicant complains that the criminal proceedings against him fell short of the guarantees of a fair hearing, with particular reference to the use of evidence given by witness L., who was convicted of the same offence in separate accelerated criminal proceedings. He also alleges a violation of the principles of adversarial proceedings and equality of arms. Furthermore, he complains that in view of the fact that the trial judge was appointed to another judicial post at the Supreme Court but continued to preside over the case, the court did not constitute an independent and impartial tribunal established by law.

He also alleges a violation of Article 6 § 3 (b) of the Convention, claiming that the intensive schedule of the court hearings left him insufficient time for sleep and no time to prepare for each following day ’ s hearing. Under the same provision he complains about his confinement in a glass cabin during the court hearing and points out the difficulties this installation caused in respect of his participation in the proceedings and his ability to communicate with his counsel.

He further alleges a violation of Article 6 § 3 (c) of the Convention on the grounds that his counsel, Mr F., was barred from participating in the proceedings.

Under Article 6 §§ 1 and 3 (d) of the Convention the applicant complains of a violation of his right to obtain the attendance and the examination of witnesses on his behalf under the same conditions as witnesses against him. He refers, in particular, to the court ’ s refusal to call and examine the victims and the defendants in related criminal cases, as well as its admitting certain witnesses on the grounds of their prior presence in the proceedings. He also cites the court ’ s refusal to admit Mr F. as a witness. Furthermore, he complains that he was not allowed to put certain questions to the police officers, in particular A.M., who were examined as witnesses.

Finally, he complains of a violation of his right to freedom of expression and the right to freedom of peaceful assembly. He alleges that he was held liable for the disorder at the site of the rally at Bolotnaya Square; in his view, that disorder was attributable to the authorities who disrupted the demonstration. He claims that the measures taken against him were unlawful, arbitrary and not necessary in a democratic society, contrary to Articles 10 and 11 of the Convention.

QUESTIONS TO THE PARTIES

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

(i) Given Mr L. ’ s prior conviction in related criminal proceedings involving plea bargaining and an accelerated procedure, was the use of his testimony in the criminal proceedings against the applicant compatible with the guarantees of Article 6 §§ 1 and 3 of the Convention?

(ii) Was the procedure in which the evidence was admitted compatible with the principles of adversarial proceedings and equality of arms?

(iii) Was the tribunal in the applicant ’ s case independent, impartial and established by law, as required by Article 6 § 1 of the Convention, given the appointment of the trial judge to another judicial office during the proceedings?

(iv) Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention, given the intensive schedule of the court hearings ?

(v) Could the applicant effectively participate in the court hearings and defend himself while being placed in a glass cabin? Was the use of this installation compatible with the guarantees of Article 6 §§ 1 and 3 (b) and (c) of the Convention?

(vi) Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention, given that his counsel, Mr F., was barred from participating in the proceedings ?

(vii) Was the applicant able to examine witnesses against him and to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention?

2. Having regard to the applicant ’ s allegations concerning his inability to visit his ill mother and to attend her funeral during his detention, has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention (see Lind v. Russia , no. 25664/05, §§ 92-99, 6 December 2007 )?

3. Given the remote location of the correctional facilities to which the applicant was transferred to serve his sentence, has there been a violation of the applicant ’ s right to respect for his private and family life, contrary to Article 8 of the Convention (see Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, §§ 822-34, 25 July 2013)?

4. Having regard to the circumstances in which the demonstration on Bolotnaya Square was terminated and dispersed on 6 May 2012, did the applicant ’ s arrest and his ensuing conviction in criminal proceedings constitute an interference with his freedom of expression, 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 of the Convention?

5. Did the same measures constitute 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 prescribed by law and necessary in terms of Article 11 § 2 of the Convention?