Communicated on 19 December 2013

FIRST SECTION

Application no. 76695/11 Sergey Stanislavovich UDALTSOV against Russia lodged on 14 December 2011

STATEMENT OF FACTS

The applicant, Mr Sergey Stanislavovich Udaltsov , is a Russian national, who was born in 1977 and lives in Moscow. He is represented before the Court by Ms V. Volkova , Mr N. Polozov and Ms K. Moskalenko , lawyer s practising 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 Russian political activist and leader of the Left Front.

1. Domestic proceedings

(a) Case no. 1

On 13 October 2011 peace justice B. convicted the applicant of an unspecified administrative offence and sentenced him to ten days of detention. Later on, judge K. of the Tverskoy District Court of Moscow upheld the conviction.

On 13 October 2011 the applicant was taken to an administrative detention facility and went on hunger strike. On 16 October 2011 he was admitted to a civil hospital. Being discharged on 19 October 2011, he left the hospital.

On 21 October 2011 the applicant was arrested at his home and taken to Moscow administrative detention facility no. 1, where he served the remainder of his earlier sentence of ten days of detention.

On 21 October 2011 the head officer of the detention facility charged the applicant with an offence under Article 20.25 of the Code of Administrative Offences (CAO), which punishes an unauthorised departure from an administrative detention facility. On the same day, the administrative offence file was submitted to the peace justice who examined it on 10 December 2011 (see “Case no. 3” below).

(b) Case no. 2

In the meantime, on 4 December 2011, the day of the Russian parliamentary elections, the applicant was arrested and conveyed to the Kitay-gorod police station. Apparently, he was accused of crossing a road in a non- authorised place.

The applicant was then taken before peace justice B. Allegedly, the applicant ’ s lawyer (whose name is not specified) was not admitted to the courthouse . The judge refused to adjourn and convicted the applicant of disobeying a lawful order by a public official. The applicant was sentenced to five days of administrative detention and was taken to the administrative detention facility. He went on hunger strike, depriving himself of both food and water.

On 5 December 2011 judge K. of the District Court upheld the judgment of the peace justice.

On 7 December 2011 the applicant was admitted to hospital. In the applicant ’ s submission, after his admission to hospital he was deemed “released” and thus should have been able to leave the hospital when he saw it appropriate. However, he was guarded by convoy officers and other officers in plain clothes. Allegedly, he could not communicate freely with his next of kin nor communicate confidentially with his counsel.

On 9 December 2011 the applicant ’ s term of detention expired and he expressed his wish to leave the hospital. Apparently, he intended to take part in a large public gathering on 10 December 2011. However, the hospital staff decided that the applicant should be admitted to the intensive care unit. So, the applicant was compelled to remain in the hospital. The applicant was also subjected to a psychiatric examination.

(c) Case no. 3

On 10 December 2011 the applicant was discharged from the hospital and was taken before peace justice Be . on the accusation of leaving the hospital without permission on 19 October 2011 (see “Case no. 1” above).

Allegedly, the court bailiff prevented the applicant ’ s lawyers from entering the courthouse. On the same evening, justice Be . convicted the applicant of leaving a detention facility without permission on 19 October 2011. The judge sentenced the applicant to fifteen days of administrative detention.

On the same day, the applicant was taken to the Zyuzinskiy District Court of Moscow for appeal proceedings. However, these proceedings were adjourned on account of the applicant ’ s state of health. The applicant was admitted to hospital. In the applicant ’ s submission, after his admission to hospital he was deemed “released” and thus should have been able to leave the hospital when he saw it appropriate. However, he was guarded by convoy officers and other officers in plain clothes. Allegedly, he could not communicate freely with his next of kin nor communicate confidentially with his counsel.

On 12 December 2011 the District Court, having noted the applicant ’ s absence and having heard his lawyer, upheld the judgment.

From 16 to 19 December 2011 the applicant was kept in a civil hospital.

The applicant ’ s term of detention was to expire on 25 December 2011. However, the applicant was not released. Instead, he was taken to a court in relation to another case (see below).

(d) Case no. 4

On 25 December 2011 the applicant was taken before peace justice B.

The applicant was accused of having resisted a lawful order by a police officer in the following circumstances. According to the authorities, several people had decided to hold on 24 October 2011 a static demonstration ( пикетирование ) in front of the Central Electoral Committee (CEC) in Moscow . This demonstration was aimed at protesting against violations of electoral rights. The Moscow authorities had suggested another venue. On 24 October 2011 the applicant, among others, had been in front of the CEC, calling passersby to join the demonstration. A police officer had told him not to obstruct the car traffic since the applicant (and others) had been in the middle of the road. The applicant had resisted.

According to the applicant, on 24 October 2011 he had been in front of the CEC for a solitary static demonstration ( одиночное пикетирование ) and had been arrested and taken, without any explanation, to a police station. Apparently, after some time in the police station the applicant was left free to leave. Between 24 October and 25 December 2011 no proceedings had been pending, as regards the applicant or judicial review of any administrative decision relating to the above static demonstration.

On 25 December 2011 peace justice B. convicted the applicant of disobeying a lawful order by a public official and sentenced him to ten days of administrative detention.

On 7 January 2012 the District Court held a hearing in order to examine the appeals lodged by the applicant ’ s lawyers. The judge afforded fifteen minutes to the applicant ’ s new lawyer, Ms Moskalenko , to study the file. On the same day, the District Court upheld the judgment of 25 December 2011.

On an unspecified date in January 2012 the applicant was released.

2. Hunger strike in December 2011

It follows from the documents submitted by the applicant that on several occasions between 4 and 19 December 2011 the applicant was examined by emergency doctors and was periodically taken to hospital. He underwent various medical tests and accepted drips to stave off complete dehydration . It transpires that, at least twice, he refused to continue in-patient treatment.

3. Proceedings before the Court

On 14 December 2011 Ms Volkova sent a fax to the Court, requesting application of Rule 39 of the Rules of Court in respect of the applicant. She also submitted by fax an application form on behalf of the applicant and authority forms in respect of herself and Mr Polozov .

On 19 December 2011 Ms Volkova sent another fax, enclosing supporting documents in relation to her earlier request under Rule 39.

In June 2012 the Court received a letter from Ms Moskalenko , enclosing an authority form signed by the applicant.

On 22 August 2012 the Court requested the applicant ’ s lead counsel ( Ms Volkova ) to submit the original paper version the application form and authority forms.

Receiving no reply, on 21 March 2013 the Court reiterated its request by registered mail.

In May 2013 the Court received a letter, enclosing paper versions of the authority forms. The original application forms were not submitted. The Section Registrar acknowledged receipt of this correspondence in a letter of 24 May 2013 stating as follows:

“The documents, which relate to the Court ’ s requests of 22 August 2012 and 21 March 2013 (copies enclosed) have been included in the file concerning the above application.

( ... ) Please note that the Court corresponds only with the applicant ’ s designated representatives ( ... ), according to the authority forms dated 14 December 2011.”

B. Relevant domestic law and practice

1. Code of Administrative Offences (CAO)

In exceptional circumstances relating to the needs for a proper and expedient examination of the 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 Constitutional Court considered that such arrest amounted 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 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 held that this measure of compulsion, which amounts to a temporary restriction of one ’ s freedom of movement, should be applied 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 considered that the relevant criteria relating to Article 5 of the Convention “were fully applicable” to the above measure of compulsion (Decision no. 149-O-O of 17 January 2012).

Article 20.25 of the CAO provides that an unauthorised departure from an administrative detention facility is punishable by administrative detention up to fifteen days.

2. Administrative detention

On 6 June 2000 the Ministry of the Interior adopted Internal Regulations for Administrative Detention Facilities. These Regulations provide that medical assistance should be provided to administrative detainees in civil hospitals (point 9). When a detainee requires urgent medical assistance, he should be “released from the administrative detention facility with the return of his possessions” and should be admitted to the civil hospital (point 8). The detainee should remain accompanied by convoy officers until the moment of his effective admission to the hospital or decision that he is no longer fit to be kept in the administrative detention facility (ibid). As soon as the detainee has recovered, he should be taken to the detention facility and serve (the remainder of) his term of detention (point 11).

On 2 October 2002 the Russian Government adopted an Instruction on Administrative Detention, which provides that the sentence of administrative detention under the CAO should be served in administrative detention facilities (paragraph 2 of the Instruction).

C. Other material

Recommendation no. R (98) 7 of the Council of Europe Committee of Ministers concerning the ethical and organisational aspects of health care in prison, reads as follows:

“...60. In the case of refusal of treatment, the doctor should request a written statement signed by the patient in the presence of a witness. The doctor should give the patient full information as to the likely benefits of medication, possible therapeutic alternatives, and warn him/her about risks associated with his/her refusal. It should be ensured that the patient has a full understanding of his/her situation. If there are difficulties of comprehension due to the language used by the patient, the services of an experienced interpreter must be sought.

61. The clinical assessment of a hunger striker should be carried out only with the express permission of the patient, unless he or she suffers from serious mental disorders which require the transfer to a psychiatric service.

62. Hunger strikers should be given an objective explanation of the harmful effects of their action upon their physical well-being, so that they understand the dangers of prolonged hunger striking.

63. If, in the opinion of the doctor, the hunger striker ’ s condition is becoming significantly worse, it is essential that the doctor report this fact to the appropriate authority and take action in accordance with national legislation (including professional standards)...”

See also, Nevmerzhitsky v. Ukraine , no. 54825/00, §§ 64-69 , ECHR 2005 ‑ II (extracts) .

COMPLAINTS

Referring to Articles 3, 5, 6, 10, 11, 13 and 18 of the Convention, the applicant alleges that since 2010 various measures taken in respect of him (arrests, retention in a hospital and detention on the basis of court decisions in administrative offence proceedings) disclosed bad faith on the part of the national authorities and, in practice, aimed at preventing him from taking part in public gatherings on 5, 10 and 24 December 2011, and, more generally, impeding his political activities at the time. The terms of detention were arbitrary since the courts convicting him did not establish the relevant facts properly; these proceedings were manifestly unfair.

Relying on the same provisions of the Convention, the applicant has also made a number of specific complaints, which may be summarised as follows:

The applicant argues that during his detention he was not provided with adequate medical assistance, which would be compatible with his decision to go on hunger strike.

The applicant also alleges that his detention in late October 2011 was unlawful; that his arrests on 24 October, 4, 10 and 25 December 2011 were arbitrary and unlawful; that his retention in the hospital on 9 and 10 December 2011 was also arbitrary and unlawful. The applicant also argues, with reference to his detention in October and December 2011, that his admission to hospital amounted to release and thus put an end to enforcement of the court decision(s) ordering his administrative detention for the administrative offence(s) and that he continued to be guarded by convoy officers in the hospital(s). Thus, he could not leave the hospital(s) in question and could not communicate confidentially with counsel and freely with his next of kin. In addition, the applicant argues that he was unlawfully detained following his wrongful conviction under Article 20.25 of the CAO.

Lastly, the applicant complains that his lawyers were prevented from entering the courthouse/courtroom on 4 and 10 December 2011; that the applicant was not taken to the appeal hearing on 12 December 2011; that Ms Moskalenko was not afforded enough time to study the file on 7 January 2012; that the applicant was convicted by judges who did not satisfy the requirements of independence and impartiality.

QUESTIONS TO THE PARTIES

1. Bearing in mind the applicant ’ s informed decision to go on hunger strike, were his continued detention and the medical care received by him (including practical arrangements, for instance transport between the detention facility and medical facilities on numerous occasions) in December 2011 and early January 2012 in conformity with the requirements of Article 3 of the Convention? Was there any specific protocol in place for various aspects of health care provided to detainees on hunger strikes?

2. Was the applicant ’ s detention on the basis of the court orders issued in the administrative offence proceedings in October and December 2011 compatible with Article 5 § 1 of the Convention? Reference is made, in particular, to the applicant ’ s allegations that as soon as he was admitted to hospital he was deemed “released” and should have been able to leave the hospital and should not have been re-detained as in October 2011; that the sentences of detention were arbitrary; and that the relevant proceedings were manifestly unfair.

In addition:

(a) Was there a violation of Article 5 § 1 of the Convention on account of the applicant ’ s arrests and conv e ying to the police station ( административн ые задержание и доставление ) on 24 October, 4, 10 and 25 December 2011? In particular, did the national authorities, including courts, establish any actual necessity or/and “exceptional circumstances” which were required for such deprivation of liberty to be in compliance with the Code of Administrative Offences , in particular its Articles 27.2 and 27.3?

(b) Was there a violation of Article 5 § 1 of the Convention on account of the applicant ’ s retention against his will in the hospital on 9 and 10 December 2011?

(c) Was the applicant ’ s detention from 10 to 25 December 2011 in breach of Article 5 § 1 of the Convention? Was the applicant ’ s sentence to administrative detention for leaving the hospital (“an administrative detention facility”) in October 2011 in compliance with the requirements of national law? Was the applicant ’ s conviction of 10 December 2011 for leaving the hospital in breach of Article 7 of the Convention , noting that the applicant was found guilty of an “administrative” offence under Russian law ?

3. Did the applicant ’ s absence from the appeal hearing on 12 December 2011 and the alleged limitations on legal assistance in these and other proceedings (see “Facts”) violate Article 5 § 4 of the Convention or its Article 6, assuming it was applicable in the administrative offence proceedings in question? Also, were the applicant ’ s cases examined by an impartial and independent tribunal, as required by the above provisions?

4. Do the relevant facts of the present case (including arrests and administrative offence proceedings), taken separately or cumulatively, disclose an interference with the applicant ’ s freedom of expression or freedom of peaceful assembly, within the meaning of Articles 10 § 1 and 11 § 1 of the Convention? If yes, was that interference prescribed by law and necessary in terms of Articles 10 § 2 and 11 § 2? Did it pursue any legitimate aim(s) mentioned in these Articles?

5. ( a ) Were the above mentioned restrictions applied for any purpose other than those for which they were prescribed? Has the applicant furnished the Court with an incontrovertible and direct proof in support of his allegations (see OAO Neftyanaya Kompaniya Yukos v. Russia , no. 14902/04 , § 663 , 20 September 2011 )?

(b) In particular, was the applicant ’ s liberty restricted for the purpose of undermining his rights to freedom of assembly and expression, in breach of Article 18 of the Convention (see Gusinskiy v. Russia , no. 70276/01, ECHR 2004 ‑ IV)?

6. Having regard to Article 38 of the Convention, the respondent Government are invited to submit a copy of the administrative offence files in respect of the applicant, including all relevant court decisions, for the period from October 2011 to January 2012.