Communicated on 7 September 2015

FIRST SECTION

Application no. 5865/07 Maksim Aleksandrovich BUTKEVICH against Russia lodged on 17 January 2007

STATEMENT OF FACTS

The applicant, Mr Maksim Aleksandrovich Butkevich , is a Ukrainian national, who was born in 1977 and lives in Kiev, Ukraine . He is represented before the Court by Mr D. Makarov , a lawyer practising in Voronezh, Russia.

A. The circumstances of the case

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

At the relevant time, the applicant worked as a professional journalist and was employed by a Ukrainian TV channel. In July 2006 he volunteered for a private media-group to cover the G8 Summit, that was held in the St Petersburg region. His particular area of interest and assignment was to follow and report on various protests against the policies of the G8 countries.

At 8.30 a.m. on 16 July 2006 the applicant followed a public gathering (a march) in St Petersburg. According to him, his actions were limited to observing the people and taking photographs, including at the moment when the police started to disperse the gathering and to arrest some of its participants.

Allegedly, one of the police officers spotted him taking pictures and ordered him to switch off the camera. According to the applicant, he complied and no further order was given to him.

Despite this, around 9 a.m. the applicant was taken to a police station.

The applicant presented his press-card of the International Federation of Journalists and explained his presence at the gathering venue.

Apparently, he also managed to contact a lawyer. However, in the applicant ’ s submission, this lawyer arrived in the police station at 9.15 a.m. but was allowed to see him only at 2 p.m.

Around this time, the applicant had access to the administrative offence record, which indicated that he had been arrested “for participation in the non-authorised march at Nevskiy Avenue, thus creating a risk of accident threatening his own and others ’ lives and limb”. The record also read as follows:

“The police officer approached [the applicant], introduced himself and asked [the applicant] to cease unlawful actions. Despite repeated and lawful orders to cease unlawful actions, [the applicant] refused. Despite repeated and lawful orders to get into the police vehicle, he also refused while grabbing the police clothes and shouting. Physical force had to be used against him to make him get into the vehicle.”

Several hours later, a new administrative offence record was compiled.

Around 8.30 p.m. the applicant was brought before a peace justice. The applicant ’ s lawyer argued that the second record was substantially different from the initial one but was unsuccessful in asking the judge to admit it to the file. The judge heard a witness, who stated that the applicant had not been taking part in the gathering and had not been disobeyed any order from the police. The court refused to hear the arresting officer and the one that compiled the administrative offence record.

The applicant was accused of disobedience to two orders from the police: ( i ) to cease his participation in the non-authorised march, and (ii) to get, “voluntarily”, into the police vehicle, as stated in the judgment of the peace justice.

On the same evening, the peace justice convicted the applicant under Article 19.3 of the Code of Administrative Offence (CAO) and sentenced him to three days of detention to be counted from 10 a.m. on the same day.

The court relied on ( i ) the (second) administrative offence record, complied by the authority initiating prosecution against the applicant, and (ii) the written statements made by the arresting officers prior to the trial.

The applicant was transferred to the police station for a night and then to the special detention facility to serve the sentence.

The applicant was visited by an official of the Ukrainian Consulate and signed several documents, authorising him to represent him on appeal.

On 18 July 2006 the Kuybyshevskiy District Court of St Petersburg heard the representative, upheld the conviction but reduced the sentence to two days ’ detention.

The applicant was released at 4 p.m. on the same day.

On unspecified date the applicant sought supervisory review of the judgments before the City Court. On 13 November 2006 the deputy President of the City Court upheld the conviction.

The applicant did not seek further review before the Supreme Court of Russia.

B. Relevant domestic law and practice

1. Journalists and public events

Section 6 of the Public Gatherings Act of 2004 defines participants in a public gathering as people who voluntarily take part in the gathering, and requires them to respect public safety. In 2014 the section was amended to specify that the journalists should be in possession of a document confirming their “competencies of a journalist”; each journalist should wear a clear distinctive sign, indicating that he or she represents a mass media.

The Mass Media Act of 1991 defines a journalist as a person, (1) who is employed by or has a contractual relationship with a registered mass media or who acts on their instructions, and (2) who edits, creates and collects information and data for a registered mass media (section 2). A journalist has a right to be present at locations of gatherings or during demonstrations and to carry out the photo- , audio- and video-recording there (section 47).

When on duty, a journalist must show his identity document and the documents confirming his journalist status (section 49).

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

The CAO 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 (Articles 27.1 and 27.2 of the CAO on administrative convoying ( административное доставление )). The Constitutional Court has held that this measure of compulsion, which amounts to a temporary restriction of a person ’ s freedom of movement, should be applied only when it is necessary and within short timeframes. 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 ( D ecision no. 149 ‑ O-O of 17 January 2012).

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. This term starts to run as soon as the person has been escorted to the police station in accordance with Article 27.2 of the Code (Article 25.5 of the Code). The Constitutional Court has ruled that such arrest amounts to “deprivation of liberty” as it is understood by the European Court of Human Rights within the meaning of Article 5 §1 (c) of the Convention (Ruling no. 9-P of 16 June 2009).

Under the Police Act (Federal Law no. 1036-I of 18 April 1991) the police were empowered to carry out administrative arrest .

3. Federal Code of Administrative Offences (CAO)

Article 1.5 of the CAO provides for the presumption of innocence. The 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).

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. While the above constitutional guarantees apply in cases examined (directly) by courts, they do not apply in cases examined by non-judicial authorities or officials (Decision no. 630-O of 23 April 2013 by 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 materials, to make representations, to adduce evidence, to lodge motions and challenges, and to have legal assistance. The Constitutional Court considered that the above guarantees enable 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).

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 inaction) under another Article of the CAO, concerning an offence of the type and provided that this reclassification does not worsen the situation of the defendant ( R uling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia, paragraph 20).

If the administrative offence record contains a wrong legal classification of the offence, a court is empowered to decide the case on the basis of the correct legal classification. In this situation, the factual description of the offence and the adduced evidence should be sufficient for giving a different legal classification ( R uling 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, prosecutors. In particular, Article 25.11 provided a public prosecutor with a power to institute administrative offence proceedings; to take part in the examination of the case, to adduce evidence, to lodge motions and to issue reports on matters arising during the examination of the case; to appeal against the decision taken in the case, irrespective of whether she 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 “participants” in the proceedings mentioned in Chapter 25 of the CAO. Thus they cannot lodge motions but can be called to a hearing in order “to provide clarifications” (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, to examine evidence, as well as to “carry out other necessary procedural measures aimed at verifying 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 ).

4. Code of Commercial Procedure

In certain circumstances, administrative offence cases should be examined by commercial courts following the procedure under the Code of Commercial Procedure.

Articles 8 sets out the principle of equality of arms for the parties to the proceedings. Article 9 sets out the principle of adversarial procedure before a commercial court: the persons participating in a case have a right to know about each other ’ s arguments before the hearing. Each participant has a right to submit evidence to the court and to the other party, a right to lodge motions, to present arguments. While ensuring independence, objectivity and impartiality, a commercial court manages the proceedings and assists the parties in exercising their rights. Article 65 of the Code provides that each party to the proceedings should prove the circumstances to which he or she refers to, as a basis for his or her claims.

When an administrative case was decided by a non ‑ judicial/administrative authority and then challenged before a court, Article 210 of the Code provides that the authority bears the burden of proving the circumstances underlying institution of proceedings against the defendant.

In administrative offence cases decided by a court, Article 205 provides that the burden to prove the circumstances, which served as the basis for compiling the administrative offence record, cannot be imposed on the defendant; a court may order, proprio motu , the administrative authority to submit evidence, which is necessary for examination of the case.

The authority, which compiled the administrative offence record, should prove the circumstances serving as the basis for the record (Ruling in case no. 307-АД15-1276 of 23 March 2015; R uling no. С 01-718/2014 of 12 August 2014 by the Intellectual Rights Tribunal; Ruling of 2 December 2009 by the Federal Commercial Court of the Central Circuit; Ruling of 11 July 2007 by the Federal Commercial Court of the Povolzhskiy Circuit; Ruling no. А 33-16202/02- С 3 а - Ф 02-1302/03- с 1 of 14 May 2003 by the Federal Commercial Court of the Eastern Siberian Circuit).

C. Other relevant material

The 2014 Report compiled by the Human Rights Ombudsman of the Russian Federation contains the following part relating to the CAO procedures:

“The legislative guarantees relating to the adversarial procedure in CAO cases have missing so far.

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 the absolute necessity to provide for adversarial proceedings, including in CAO cases. The adversarial procedure requires 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, it transpires from the CAO that a court hearing is 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 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 the public officials ’ reports while these officials act, de facto , the initiators of the proceedings and the 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 same information, which was provided by the same person who initiated the proceedings.

It transpires from the established judicial practice that the accusatory testimonies by public officials are treated as more trustworthy than exculpatory evidence, which is submitted by the defence. ...

An administrative offence record is assimilated to 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 the equality of arms and the adversarial procedure) to use in evidence the documents, which contain accusations and one ’ s assessment of evidence. In such situation, the opinion of one party is treated as evidence in the case.

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

The above lacuna in the legislation cause partial examinations of CAO cases ...

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, to provide assistance in collecting evidence and to assess the evidence adduced by the parties. The observance of the above conditions can secure an impartial examination of this type of cases ... ”

COMPLAINTS

The applicant complains under Article 5 of the Convention that there were no reasons for his arrest and no “exceptional circumstances”, which were required under Russian law for a lawful arrest; there was no lawful basis for his detention after 10 a.m. on 18 July 2006.

The applicant also alleges under Article 6 of the Convention that he did not receive a fair trial by an impartial tribunal, which would satisfy the requirements of the equality of arms and adversarial procedure. He refers, inter alia , to the absence of any prosecuting authority in the proceedings, the impossibility to examine the arresting officer and the insufficiency of “time and facilities” to prepare his defence.

Lastly, the applicant complains under Article 10 of the Convention that he was impeded in his exercise of his freedom to receive and impart information.

QUESTIONS TO THE PARTIES

1. 1. In view of their statutory purposes, did the applicant ’ s administrative convoying and administrative arrest ( административные доставление и задержание ) fall within the scope of:

- Article 5 § 1 (b) of the Convention, “in order to secure the fulfilment of any obligation prescribed by law”? If yes, what was this “obligation prescribed by law”? and/or

- Article 5 § 1 (c), in particular as being applied “for the purpose of bringing [the applicant] before the competent legal authority on reasonable suspicion of having committed an offence”? If yes, how does the above correlate with the purposes specified in Articles 27.1-27.3 of the CAO?

1.2. Was there a violation of Article 5 § 1 of the Convention on account of the arrest and detention on 16 July 2006 ( see, for comparison, Malofeyeva v. Russia, no. 36673/04 , § 140, 30 May 2013, and Navalnyy and Yashin v. Russia , no. 76204/11 , § 68, 4 December 2014) and on account of the belated release on 18 June 2006?

2. Having regard to the applicant ’ s specific allegations, d id he have a fair hearing in the determination of the charge against him, in accordance with Article 6 § 1 of the Convention? In particular:

- Was the administrative offence record, which was compiled by the public authority that had initiated the proceedings, treated as evidence in the administrative offence case? Did the applicant have an adequate opportunity to contest the evidence, including the record and the written statements by the arresting officers? If not was there a violation of Article 6 §§ 1 and 3 of the Convention?

- Were oral testimonies or written statements by the arresting officer(s) or other officials of the authority, which had initiated the CAO case, treated as “witness” evidence or evidence from the “victim” of the offence? Were these testimonies/statements given under oath (see, for comparison, Karpenko v. Russia , no. 5605/04 , § 66 , 13 March 2012 )?

- Were the court s in the applicant ’ s case impartial, as required by Article 6 § 1 of the Convention? Given the absence of any prosecuting authority, did the courts take on an active role, for instance by way of collecting evidence or other procedural actions taken by them proprio motu ? Was the principle of equality of arms respected?

3. Was there a violation of Article 10 of the Convention on account of the orders given to the applicant by the police, the deprivation of liberty and the sentence imposed on the applicant in the CAO case? Did the courts assess the lawfulness of the public gathering and the corresponding lawfulness of any specific police orders to the applicant?