Communicated on 9 February 2016

THIRD SECTION

Application no. 76684/11 Filipp Arkadyevich KOSTENKO against Russia lodged on 12 December 2011

STATEMENT OF FACTS

The applicant, Mr Filipp Arkadyevich Kostenko , is a Russian national who was born in 1985 and lives in St Petersburg. He is represented before the Court by Mr S. Golubok , a lawyer practising in St Petersburg.

A. The circumstances of the case

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

On 4 December 2011 (a Sunday) elections to the State Duma were held.

On 6 December 2011 (a Tuesday) the applicant decided to take part in a public assembly on Nevskiy Prospekt in St Petersburg. It appears that some one hundred people gathered at the venue at around 7 p.m. in order to express their views about alleged large-scale fraud during the elections two days before. According to the applicant, the area had a very wide pavement and an area of “hundreds of square metres”; thus, there was no obstruction to traffic or passers-by.

It also appears that the event ’ s organisers did not comply with the prior notice requirement under section 7 of the Public Assemblies Act. Therefore, the event was considered by the authorities to be an unlawful assembly.

According to the authorities (see below), on 6 December 2011 the applicant took part in an unauthorised public meeting ( митинг ) and march ( шествие ). The police informed the participants (by loud-speaker) that the events were unauthorised, ordered them to disperse and warned them that failure to disperse would amount to disobedience to a lawful police order. The applicant remained at the venue and thereby committed the administrative offence of disobedience to a lawful police order, also breaching section 5 of the Public Assemblies Act (see “Relevant domestic law and practice” below).

According to the applicant ’ s submission, he was arrested at 6.45 p.m. on his way to the event, and did not hear any warnings or orders by the police to disperse. According to the applicant, the police officers did not identify themselves and did not explain the reasons for his arrest. The applicant was taken to police station no. 30.

The applicant spent the night at the police station.

On 7 December 2011 he was taken before a justice of the peace.

It appears that the applicant made an oral request to contact his lawyer or have him informed about the place and time of the court hearing. According to the applicant, the judge instructed him to make a written request, but he could not comply because he had been refused a pen and paper and had remained handcuffed.

The judgment by the justice of the peace mentions no requests or applications by the applicant during the hearing.

Closing the hearing, the judge found the applicant guilty and sentenced him to fifteen days ’ detention. The judge referred to pending criminal proceedings against the applicant and a previous prosecution for administrative offences. The court considered it established that the applicant had taken part in an unauthorised public meeting and march and that he had disobeyed the order to disperse.

The justice of the peace listed the following documents as evidence confirming the applicant ’ s guilt: the record of his arrest; the record of the administrative offence; a law-enforcement officer ’ s report; a certificate issued by the police department ’ s special surveillance unit; a certificate concerning previous proceedings against the applicant for administrative offences; and “other evidence submitted to the court”.

On 7 December 2011 the applicant started to serve his sentence, the same day that it had been imposed by the justice of the peace.

In the meantime, the applicant and his lawyer appealed to the Kuybyshevskiy District Court of St Petersburg, referring, inter alia , to the applicant ’ s right to exercise his freedom of peaceful assembly. He argued that the order to disperse had been unlawful and so disobedience to such an order had not constituted the corpus delicti of an offence under Article 19.3 of the Code of Administrative Offences (“the CAO”). The order could not have been lawful in the absence of any ongoing violations of public order or public safety and the authorities should have displayed a degree of tolerance, given that the applicant had been exercising his constitutional freedom of peaceful assembly. The applicant ’ s arrest and the particularly harsh sentence of fifteen days ’ detention had been clearly disproportionate in the circumstances of the case.

The applicant also lodged an application to discontinue proceedings owing to the lack of the elements of an administrative offence. He argued that under the Public Assemblies Act the requirement to stop the public assembly should have been addressed to the event ’ s organisers and, by implication, complied with by them. The applicant had not been among the event ’ s organisers. Thus, the police order had had no legal basis in the Act or other legislation in so far as the applicant had been concerned. He also submitted that no prior notice for the meeting could have been given since the event had been an urgent and spontaneous reaction to the very recent elections. The authorities should therefore have displayed a degree of tolerance towards such a gathering.

On 10 December 2011 the District Court held a hearing and examined the applicant and his lawyer. The appeal court refused to discontinue the case and upheld the first-instance judgment.

While upholding in substance the first-instance judgment, the appeal court reclassified the charge against the applicant, finding him guilty of breaching section 6 of the Public Assemblies Act instead of section 5.

The appeal court also excluded the evidence of the officer ’ s report, the certificate from the surveillance unit and the reference to “other evidence submitted to the court”. The appeal court also removed the reference to criminal proceedings.

The appeal court made the following findings concerning the applicant ’ s freedom of peaceful assembly:

“The event ’ s participants chose to gather close to building no. 35 on Nevskiy Prospekt , in the immediate vicinity of the entrances to the underground train station and at a time when passenger traffic was at its busiest. Given the aim of the event (the public expression of views on a socio-political topic, which implies the expression of discontent) and the number of participants, there was a real threat to passers-by ... The actions of the police were therefore lawful.”

The appeal court upheld the applicant ’ s sentence, noting his prosecution for administrative offences and that “the applicant had not drawn the necessary conclusions and had thereby demonstrated a clear pattern of unlawful conduct”.

B. Relevant domestic law and practice

1. Freedom of assembly and freedom of expression

The Constitution of Russia guarantees the right to freedom of peaceful assembly and the right to hold meetings, demonstrations, marches and pickets (Article 31); the freedom of thought and expression, as well as the freedom to freely seek, receive, transfer and spread information by any legal means (Article 29).

(a) Procedure for the conduct of public events

Federal Law no. FZ-54 of 19 June 2004 on Gatherings, Meetings, Demonstrations, Marches and Pickets (“the Public Assemblies Act”), defines a public event ( публичное мероприятие ) as an open, peaceful event accessible to all, organised on the initiative of Russian citizens, political parties, other public associations or religious associations. The aims of a public event are to express or develop opinions freely and to voice demands on issues related to political, economic, social or cultural life in the country, as well as issues related to foreign policy (section 2(1)).

A public event may be held in any convenient location, provided that it does not create a risk of building collapse or any other risks to the safety of the participants. The access of participants to certain locations may be banned or restricted in the circumstances specified by federal laws (section 8(1)). Public events in the immediate vicinity of a court are prohibited (section 8(2)).

No earlier than fifteen days and no later than ten days before the intended public assembly, its organisers must notify the competent regional or municipal authorities of the date, time, location or itinerary and purposes of the assembly, its type, the expected number of participants, and the names of the organisers. A notification in respect of a picket involving several people must be submitted no later than three days before the intended picket or, if the end of the time-limit falls on a Sunday or a public holiday, no later than four days before the in tended picket (section 7(1) and (3)). A notification of a public assembly is a document by which the competent authority is informed, in accordance with the procedure established by this Act, that an assembly will be held, so that the competent authority may take measures to ensure safety and public order during the assembly (section 2 (7)).

Upon receipt of such a notification, the competent regional or municipal authorities must, inter alia :

1) confirm receipt of the notification;

2) provide the organisers of the assembly, within three days of receiving the notification (or, in the case of a picket involving several people, if the notification is submitted less than five days before the intended picket, on the day of receipt of such notification), with reasoned suggestions for changing the location and/or time of the assembly, or for amending the purposes, type or other arrangements if they are incompatible with the requirements of the Act;

3) ensure, in cooperation with the organisers of the assembly and representatives of the competent law-enforcement agencies, the protection of public order and citizens ’ security, as well as the administration of emergency medical aid if necessary (section 12(1)).

The competent regional or municipal authority may refuse to allow a public assembly only if the person who has submitted the notification is not entitled to organise a public assembly or if it is prohibited to hold public assemblies at the location chosen by the organisers (section 12(3)).

No later than three days before the intended date of the assembly (this time-limit does not apply to pickets involving one person) the organisers of a public assembly must inform the authorities in writing whether or not they accept the authorities ’ suggestions for changing the location and/or time of the assembly (section 5(4)(2)). The event organiser cannot run the assembly, where a notification has not been lodged with the prescribed time-limit or where an agreement has not been reached within the negotiation procedure with the competent authority (section 5(5)).

Section 6(3)(1) of the Act provides that participants at an assembly are required to comply with all lawful orders from the event organiser or a designated executive or municipal official or a law-enforcement officer.

(b) Liability for violation of the rules on public assemblies

( i ) Termination of a public event

The organiser of a public event must put an end to it where the event ’ s participants have committed unlawful actions (section 5 of the Public Assemblies Act). A designated official of an executive authority or a municipal authority is empowered to take a decision to stop the public event (section 13 of the Act). A designated law-enforcement officer is empowered to bar access to the event where the maximum capacity of the venue has been exceeded; or to order the event organiser or its participants to comply with the rules for holding public events (section 14 of the Act).

Where the event ’ s participants have committed a violation of the regulations ( правопорядок ) while causing no threat to life or limb, the designated executive or municipal official may require the event organiser to remedy the violation (section 15). If that requirement is not complied with, the executive or municipal official may suspend the event pending the remedying of the violation. If the violation is not remedied, the event should be ended. The grounds for ending a public event are as follows: a real threat to life, limb or property; unlawful acts committed by the event participants and the organiser ’ s wilful violation of the regulations concerning the running of a public event (section 16).

The procedure for putting an end to a public event is as follows: the designated executive or municipal official orders the organiser to stop the event, providing the reasons for that decision; the official sets a time-limit for complying with the order; if the organiser does not comply, the official himself or herself announces the end of the event and affords time to disperse (section 17). Where the order to stop the event has not been complied with, the police should take the necessary measures to that end. Failure to comply with lawful orders of the police or disobedience (that is, resistance) on the part of the event participants entail liability under other provisions of Russian law.

(ii) Prosecution for an administrative offence

Article 3.1 of the CAO defines an administrative penalty as a measure of responsibility for an administrative offence, with the purpose of preventing new offences by the offender or others.

Before June 2012 a breach of the statutory procedure for organising a public assembly by its organiser was punishable by a fine of up to twenty minimum wages (Article 20.2 § 1 of the CAO), 2,000 Russian roubles (RUB). A breach of the statutory procedure for the running of a public assembly was punishable by a fine of up twenty minimum wages (for organisers) and up to ten minimum wages (RUB 1,000) for participants (Article 20.2 § 2 of the CAO).

Refusal to obey a police officer ’ s lawful order or request was at the time punishable by an administrative fine of between RUB 500 and RUB 1,000 or up to fifteen days ’ administrative detention (Article 19.3 of the CAO).

2. Other relevant provisions of law

A person can be absolved from prosecution for an administrative offence by way of receiving an oral warning only, in view of the low negative impact ( малозначительность ) of the offence (Article 2.9 of the CAO).

Non-payment of an administrative fine constitutes an administrative offence punishable by a doubled fine or up to fifteen days ’ administrative detention (Article 20.25 of the CAO).

3. Fairness and procedural guarantees in cases concerning administrative offences

Article 1.5 of the CAO provides for the presumption of innocence. An official or court dealing with the administrative-offence case should establish whether the person concerned is guilty or innocent (ruling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia).

Administrative cases should be examined at a public hearing, except in cases relating to State or other secrets protected by law or where it is necessary to protect the honour or reputation of the person or people participating in the proceedings (Article 24.3 of the CAO).

The Constitutional Court stated that Articles 118 § 2 and 123 § 3 of the Russian Constitution provided that equality of arms and adversarial procedure should apply in court proceedings, including under the CAO. Although the above constitutional guarantees applied in cases examined (directly) by the courts, they did not apply in cases examined by non ‑ judicial authorities or officials (decision no. 630-O of 23 April 2013 of the Russian Constitutional Court). However, the person concerned may seek judicial review of their decisions; such review proceedings should provide for equality of arms and adversarial procedure (ibid.).

Article 25.1 § 4 of the CAO provides that the person prosecuted under the CAO is entitled to study the case file material, make representations, adduce evidence, lodge applications and challenges, and have legal assistance. The Constitutional Court considered that the above guarantees enabled the person concerned to refute, in the course of court proceedings, the information contained in the case file, for instance in the offence record ( протокол об административном правонарушении ), thereby exercising his or her right to judicial protection based on the principle of adversarial procedure (decision no. 925-O-O of 17 June 2010).

In relation to the Code of Criminal Procedure, the Constitutional Court held that requiring or allowing a court to take over the functions normally attributed to a prosecuting authority contradicted Article 123 of the Constitution and impeded the independent and impartial administration of justice (see, among others, ruling no. 16-P of 2 July 2013).

Article 28.1 of the CAO provides that administrative offence proceedings are initiated by a competent public official, such as a police officer or a prosecutor.

While the administrative offence record must indicate the Article of the CAO corresponding to the charge, the right of final legal classification belongs to a court. If a court considers that the classification given in the administrative offence record was wrong, a court may reclassify the relevant actions (or omissions) under another Article of the CAO, concerning an offence of the appropriate type and provided that this reclassification does not worsen the situation of the defendant (ruling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia, paragraph 20).

If the administrative offence record contains an incorrect legal classification of the offence, a court is empowered to decide the case on the basis of the correct legal classification. In such a situation, a factual description of the offence with adduced evidence should be sufficient to provide a different legal classification (ruling no. 10 of 2 June 2004 by the Plenary Supreme Commercial Court of Russia, paragraph 8).

Chapter 25 of the C AO contains provisions regarding participants in administrative offence proceedings, namely the defendant, the victim, their representatives and counsel, witnesses, attesting witnesses, specialists and experts, translators and prosecutors. In particular, Article 25.11 provides a public prosecutor with the power to institute administrative offence proceedings; to take part in the examination of the case; to adduce evidence; to lodge applications and to issue reports on matters arising during the examination of the case; and to appeal against the decision taken in the case, irrespective of whether he had participated in the case.

The official who compiled the administrative offence record or the official/non-judicial authority who issued a decision in the case is not considered as a participant in the proceedings mentioned in Chapter 25 of the CAO, or as “participants who are empowered to carry out a prosecution” (decisions nos. 1311-O and 1312-O of 24 June 2014 by the Constitutional Court). Such officials carry out the collection of evidence (decision no. 2157-O of 25 September 2014 by the Constitutional Court). They cannot lodge applications, but can be called to a hearing in order “to provide clarification” (ruling no. 5 of 25 March 2005 by the Plenary Supreme Court of Russia).

Concerning the role of a judge in an administrative case, the Constitutional Court stated that to comply with the statutory requirement of a “full and objective” examination of the case, a judge has statutory powers to hear participants in the case and examine evidence. He can also “carry out other necessary procedural measures aimed at verifying the admissibility and authenticity of evidence, in particular by way of calling proprio motu a witness, including the official who compiled the administrative offence record or other related record”. This is aimed at further examining the available evidence (the record) rather than at collecting new evidence. The above power cannot be considered as incompatible with the judicial function and fully complies with the constitutional principle of adversarial procedure under the CAO (decision no. 1086-O of 6 July 2010; decision no. 884-O of 29 May 2012; decision no. 1817-O of 18 September 2014; and separate opinion by Judge Aranovskiy ; decision no. 763-O of 23 April 2015).

Article 30.6 of the CAO provides for an appeal against a first-instance judgment. The appeal court is required to examine the existing and new evidence in the case file, and to provide a full review of the case.

4. Escorting a person to a police station, arrest and other coercive or preventive measures

Under the current Police Act (Federal Law no. 3-FZ of 7 February 2011) the police are empowered to check an individual ’ s identity documents where there are reasons to suspect the person of a criminal offence or if his or her name is on a wanted persons list; where there is a reason for prosecuting him or her for an administrative offence; or where there are other grounds, prescribed by federal law, for arresting the person (section 13 of the Act). The police are also empowered to take the person to a police station in order to decide whether he or she should be arrested, if it cannot be done on the spot. The police are empowered to take fingerprints and photographs or make video recordings of an arrestee suspected of a criminal offence, or if it was not possible to properly identify the arrestee during the arrest (section 13 of the Act).

In exceptional circumstances relating to the need for a proper and expedient examination of an administrative case, the person concerned may be placed under administrative arrest ( административное задержание ) (Article 27.3 of the CAO). The arrestee should be informed of his rights and obligations; this notification should be mentioned in the arrest record. The duration of such administrative arrest must not normally exceed three hours. Administrative arrest for a longer period, not exceeding forty-eight hours, is permissible only for persons subject to administrative proceedings concerning an offence punishable by administrative detention or offences involving unlawful crossing of the Russian border. Pursuant to Article 27.5 of the CAO, the term for detention starts to run as soon as the person has been escorted to the police station in a manner in which is in accordance with Article 27.2 of the CAO. The Constitutional Court has ruled that such arrest amounts to “deprivation of liberty” as it is understood by the European Court, within the meaning of Article 5 § 1(c) of the Convention (Ruling no. 9-P of 16 June 2009).

The CAO also authorises the competent authorities to compel a person to follow the competent officer, for instance to a police station, for the purposes of compiling an administrative offence record when it cannot be done on the spot ( административное доставление ) (Articles 27.1 and 27.2 of the CAO). The Constitutional Court has held that this measure of compulsion, which amounts to temporary restriction of a person ’ s freedom of movement, should be applied only when it is necessary and for short periods. Referring to the notion of “deprivation of liberty” under Article 5 of the Convention, the Constitutional Court has ruled that the relevant criteria relating to Article 5 of the Convention are “fully applicable” to the measure (Decision no. 149-O-O of 17 January 2012).

C. Other relevant material

The 2014 Report compiled by the Human Rights Ombudsman of the Russian Federation contains the following section concerning proceedings under the CAO:

“Legislative guarantees relating to adversarial proceedings in CAO cases have until now been lacking.

The Russian Constitution safeguards the principle of equality of arms and the principle of adversarial procedure as the basis of adjudication, without any exception. This means it is absolutely necessary to provide for adversarial proceedings, including in CAO cases. Adversarial proceedings require that the institution of prosecution, the drafting of accusations and their presentation before a court should be carried out by the authorities or officials, as specified in the statute. However, the CAO indicates that a court hearing may be held without any public official who would be empowered in some way to present the administrative offence charge and to prove it. A prosecutor ’ s participation in the case is not mandatory.

As a rule, the participants in the proceedings are the judge, the defendant and his counsel. As a matter of fact, the defence is not opposed to a prosecuting party but to the court itself. This does not exclude the presence of some de facto functions of prosecution with the judge.

The overwhelming majority of CAO cases include examination, as evidence, of public officials ’ reports, while these officials act, de facto , as initiators of the proceedings and as accusers. Their written explanations and their oral testimonies in court are also treated as evidence. Thus, the “bulk of evidence” consists of copying all the information which was provided by the person who initiated the proceedings.

Established judicial practice indicates that accusatory testimonies by public officials are treated as more trustworthy than exculpatory evidence which is submitted by the defence ...

An administrative offence record has the same status as a bill of indictment and thus represents the opinion of one of the parties. The merits of this opinion should be established at a court hearing. It is against the right to a fair hearing (on the basis of equality of arms and adversarial procedure) to use in evidence documents which contain accusations and opinion on evidence. In such a situation, the opinion of one party is treated as evidence in the case.

Opinion on the defence ’ s testimonies is not treated as proper evidence. If the defendant is not in a position to adduce objective evidence proving his innocence, his explanations or testimonies by witnesses on his behalf are declared, as a rule, to be untruthful.

The above lacunae in the legislation render examinations of CAO cases partial ...

The contents of the complaints lodged with the Ombudsman confirm the existence of a systemic problem, which calls for additional legislative response. In our view, the burden of proving the offence cannot be on the official who compiled the administrative offence record. But it should be on the public official who has powers to put forward the accusation.

The judge should determine the scope of issues to be proven, provide assistance in collecting evidence, and assess the evidence adduced by the parties. Observance of the above conditions can secure an impartial examination of this type of case ...”

COMPLAINTS

The applicant complains under Article 11 of the Convention that the circumstances of the case, in particular the sentence of fifteen days ’ detention, amounted to a disproportionate interference with his freedom of peaceful assembly.

The applicant also alleges under Article 6 of the Convention that the administrative offence proceedings against him were unfair in that the appeal court reclassified the charge without affording the defence an opportunity to comment on the matter. Similarly, he complains that the appeal court ’ s arguments pertaining to the number of passengers close to the event venue were not raised or discussed at the hearing; that in the absence of a prosecuting party the courts combined the adjudicative and prosecuting functions; and that he was deprived of the opportunity to exercise his right to legal assistance before the justice of the peace.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in respect of the administrative offence charge against him, as required by Article 6 § 1 of the Convention? Also, as regards its paragraph 3(a)-(c):

- Was he afforded a reasonable opportunity to obtain attendance of the lawyer of his choosing at the hearing before the justice of the peace?

- Was there a violation of the impartiality requirement and/or the principle of adversarial procedure (or equality of arms) on account of the absence of a prosecuting party in the proceedings against the applicant and the active - statutory or actual - role of the court, for instance on account of the decision to reclassify the charge and the new arguments put forward by the appeal court in its decision?

- Was the applicant afforded an adequate opportunity to comment on the reclassification of the charge?

2.1. Did the circumstances of the case (the applicant ’ s arrest and sentence of fifteen days ’ detention) disclose an unlawful interference with the applicant ’ s freedom of peaceful assembly? In particular:

- Did the applicant have any obligation imposed on him under the Public Assemblies Act? Did he clearly fail to comply with such an obligation? Did he fail to comply with a specific and lawful order from the police? What was the order?

- Did Russian law make any provision or exception, for instance in relation to the prior notice requirement, in respect of urgent, spontaneous assemblies? If not, did the allegedly deficient legislative framework entail a violation of Article 11 of the Convention, noting the applicant ’ s argument that he intended to participate in an assembly of that type (see Éva Molnár v. Hungary , no. 10346/05, §§ 36-38, 7 October 2008)?

2.2. What legitimate aims, in terms of Article 11 § 2 of the Convention, were specifically pursued by the applicant ’ s arrest and sentence to detention?

2.3. Were they necessary and proportionate in the circumstances of the case? In particular:

- Did the courts properly establish the relevant factual and legal issues, such as those concerning the applicant ’ s intended or actual participation in the assembly; its “unauthorised” nature; the substance, sequence and lawfulness of the orders from the police; and the passenger traffic close to the venue area?

- Did the courts carry out a proper proportionality analysis concerning the applicant ’ s exercise of his freedom of peaceful assembly?

3. Having regard to Article 38 of the Convention, the respondent Government are requested to submit a copy of the administrative offence file in respect of the applicant.