Information Note on the Court’s case-law 200

October 2016

Yaroslav Belousov v. Russia - 2653/13 and 60980/14

Judgment 4.10.2016 [Section III]

Article 3

Degrading treatment

Confinement of defendant in glass cabin during criminal trial: violation, no violation

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Impact of confinement in glass cabin on the exercise of an accused’s right to participate eff ectively in proceedings: violation

Article 11

Article 11-1

Freedom of peaceful assembly

Conviction and sentence of protester for participation in mass disorder: violation

Facts – The applicant was arrested during the dispersal of a political rally in Bolotnaya Square in Moscow in May 2012 and charged with public-order offences. During the first two months of hearings, the applicant and nine other accused were confined in a very cramped glass cabin. The hearings were subsequently held in a different courtroom equipped with two glass cabins allowing the applicant and other accused more space. In his applications to the European Court the applicant complained, inter alia , that this confinement amounted to degrading treatment and impaired his effective participation in the trial. He further alleged a violation of his right to peaceful assembly.

Law

Article 3: The means chosen for ensuring courtroom order and security must not involve measures of restraint which by virtue of their level of severity or by their very nature would bring them within the scope of Article 3 of the Convention. In particular, confinement in a metal cage was contrary to Article 3 of the Convention, having regards to its objectively degrading nature (see Svinarenko and Slyadnev v. Russia [GC], 32541/08 and 43441/08, 17 July 2014, Information Note 176 ).

Although glass cabins did not have the harsh appearance of metal cages and the placement of defendants behind glass partitions or in glass cabins did not in itself involve an element of humiliation sufficient to reach the mi nimum level of severity, as was the case with metal cages, that level might be attained if the circumstances of their confinement, taken as a whole, would cause them distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.

During the first two months of hearings the applicant had been held with nine other defendants in a glass cabin measuring 5.4 square metres, a setting that left virtually no space between them. He had had to endure the court hearing in thos e conditions for several hours three days a week during that time. The case was high-profile and the trial had been closely followed by national and international mass media, so the applicant had been permanently exposed to the public at large in that cram ped setting. Those elements were sufficient for the Court to conclude that the conditions during the first two months amounted to degrading treatment in breach of Article 3. However, as regards the hearings in the second courtroom, the Court observed that the two-cabin arrangement in that courtroom allowed the applicant at least 1.2 sq. m. of personal space, thus avoiding the inconvenience and humiliation of extreme overcrowding. The alleged hindrance that the installations caused to the applicant’s partici pation in the proceedings and his communication with legal counsel could be considered as elements contributing to the applicant’s anxiety and distress but taken alone were not sufficient to pass the threshold of Article 3.

Conclusion : violation as regard s the first courtroom (unanimously).

Conclusion : no violation as regards the second courtroom (unanimously).

Article 6 § 1 in conjunction with Article 6 § 3 (b) and (c): Having found a violation of Article 3 in relation to the first hearing room where the applicant had been confined in an overcrowded glass cabin, the Court would find it difficult to reconcile the degrading treatment of the defendant during the judicial proceedings with the notion of fair hearing. It followed that for the first two months o f the trial the court hearings in the applicant’s case were conducted in breach of Article 6 of the Convention.

In the second hearing room the problem of overcrowding had been resolved but the alleged impediments to the applicant’s participation in the pr oceedings and to his legal assistance had remained. An accused’s right to communicate with his lawyer without the risk of being overheard by a third party was one of the basic requirements of a fair trial in a democratic society. The Court was mindful of t he security issues a criminal court hearing may involve. However, given the importance attached to the rights of defence, any measures restricting the defendant’s participation in the proceedings or imposing limitations on his or her interaction with lawye rs should only be imposed in so far as is necessary and should be proportionate to the risks in a specific case. The applicant had been separated from the rest of the hearing room by glass, a physical barrier which to some extent reduced his direct involve ment in the hearing. This arrangement made it impossible for him to have confidential exchanges with his legal counsel, to whom he could only speak through a microphone and in close proximity to the police guards. The use of the security installation was n ot warranted by any specific risks or courtroom order issues but had been a matter of routine. The trial court had had no discretion to order the applicant’s placement outside the cabin and did not seem to recognise the impact of the courtroom arrangements on the applicant’s defence rights. Nor had it taken any measures to compensate for these limitations. Such circumstances had prevailed for the whole duration of the first-instance hearing, and could not but have adversely affected the fairness of the proc eedings as a whole. The applicant’s right to participate effectively in the proceedings and to receive practical and effective legal assistance had been restricted, and those restrictions had been neither necessary nor proportionate.

Conclusion : violation (unanimously).

Article 11: The assembly at Bolotnaya Square fell within the scope of Article 11. The applicant’s prosecution and criminal conviction for participation in mass disorder had constituted an interference with the exercise of his freedom of ass embly, which interference was prescribed by law and pursued the legitimate aims of preventing disorder and crime and protecting the rights and freedoms of others.

As to whether the applicant’s conviction was necessary in a democratic society the applicant had been sentenced to two years and three months’ imprisonment for attending an authorised public assembly, chanting anti-government slogans, and throwing an unidentified small round object which hit a police officer on the shoulder, causing him pain. The Court accepted that there may have been a number of individuals in the crowd who contributed to the onset of clashes between the protesters and the police. However, in the applicant’s case it was crucial that he had not been found to be among those respon sible for the initial acts of aggression; he had thrown the yellow object at the height of the clashes, when the police were already arresting the protesters. Given the applicant’s minor role in the assembly and his only marginal involvement in the clashes , the Court did not consider that the risks referred to by the Government – potential civil unrest, political instability and threat to public order – had had any personal relation to the applicant. Those reasons could not therefore justify the applicant’s sentence of two years and three months’ imprisonment and there had been no pressing social need to sentence the applicant to such a term. The applicant’s criminal conviction, and especially the severity of his sentence, could not but have had the effect o f discouraging him and other opposition supporters, as well as the public at large, from attending demonstrations and, more generally, from participating in open political debate. The severity of the sanction was grossly disproportionate to the legitimate aims pursued. The applicant’s conviction had not been necessary in a democratic society.

Conclusion : violation (unanimously).

The Court also concluded, unanimously, that there had been no violation of Article 3 of the Convention in respect of the condition s of detention on remand or as regards the alleged failure to provide the applicant with adequate medical assistance; that there had been a violation of Article 3 in respect of the conditions of transfer to and from the courthouse and that there had been a violation of Article 5 § 3.

Article 41: EUR 12,500 in respect of non-pecuniary damage; the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested.

© Council of Europe/European Court of Human Rights This su mmary by the Registry does not bind the Court.

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