CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 décembre 2016

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font-size:10pt }           THIRD SECTION           CASE OF KASPAROV AND OTHERS v. RUSSIA (No. 2)   (Application no. 51988/07)               JUDGMENT         STRASBOURG   13 December 2016     FINAL   29/05/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kasparov and Others v. Russia (no. 2), The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Luis López Guerra, President,   Helena Jäderblom,   Helen Keller,   Dmitry Dedov,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 15 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 51988/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Russian nationals (“the applicants”), on 27   November 2007. Their personal details are set out in the Appendix. 2.     The first and second applicants were represented by Ms   K.   Moskalenko and Ms   O.   Mikhaylova, lawyers practising in Strasbourg and Moscow respectively. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3.     The applicants complained that their arrest at a demonstration and subsequent detention had violated their rights to freedom of peaceful assembly, freedom of expression and liberty. They also alleged that the related administrative proceedings before the domestic courts had fallen short of the guarantees of a fair hearing. 4.     On 14 November 2011 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The first applicant is a former World Chess Champion. He and the other six applicants are political activists. 6.     The facts of the case, as submitted by the parties, may be summarised as follows. 7.     On 24 November 2007 a group of opposition politicians organised protests rallies in several Russian cities, including Moscow. They were part of a public campaign “[f]or the consolidation of democratic forces in order to defend the Constitution and the legal order” initiated before the Presidential elections in March 2008. 8.     On that day the applicants attended a gathering on Academician Sakharov Prospekt, which had been organised by the second applicant and approved by the authorities. According to the applicants, at 3 p.m., at the end of the gathering, they started walking to the location of another authorised gathering which took place on Chistoprudnyy Boulevard between 2 p.m. and 4 p.m. The Government alleged that some 1,500 people took part in the procession, a figure contested by the applicants as grossly overestimated. It appears that on their way, which ran past Myasnitskaya Street, the applicants also intended to take a petition to the Central Electoral Committee. However, their route was blocked by the riot police and they were arrested, with excessive force allegedly being used against them. 9.     At 3.45 p.m. the first and second applicants were taken to the Basmannyy District police station. A duty officer drew up an administrative offence statement ( протокол об административном правонарушении ) in respect of each of them on the basis of reports ( рапорт ) by police officers M. and U. The applicants were charged with breaching the established procedure for conducting public events and disobeying lawful police orders, offences under Articles 20.2 § 2 and 19.3 of the Code of Administrative Offences ( протокол об административном задержании ). Their administrative detention was ordered with reference to Article 27.3 of the Code. The first applicant was detained until 6.20 p.m. that evening, and the second applicant until an unspecified time on 26 November 2007. 10.     Immediately after his release from detention the first applicant appeared before the Justice of the Peace of Circuit no. 382 of the Krasnoselskiy District of Moscow. According to the first applicant, members of the public who wanted to attend the hearing of his case were prevented from entering the court, which had been cordoned off by the riot police. He claimed that even his lawyers had experienced difficulties getting into court. He applied for the hearing to be adjourned until 26   November 2007 to allow him time to study the case file with his lawyer and prepare his defence. The hearing was adjourned, but only until 7.15   p.m. that evening. 11.     The first applicant applied for six witnesses to be called and examined. These included four police officers and two eyewitnesses waiting outside the courthouse. He also requested that certain video and photographic material be admitted as evidence. 12.     The Justice of the Peace examined police officers M. and U., who stated that after the public gathering the first applicant had participated in an unauthorised march down Myasnitskaya Street towards Chistoprudnyy Boulevard and had chanted “Down with Putin!”. The first applicant pleaded not guilty and disputed the police officers’ testimony and police reports. He testified that he had been arrested while walking alongside other people from one authorised gathering to another. When he had seen that the path had been blocked by the police he had turned back as ordered, but as he had walked away he had been arrested. He insisted that there had been no other way of complying with the police’s order to disperse than to turn back. He denied that there had been an organised march, or that he had called out to anyone to follow him. 13.     On the same day the Justice of the Peace found the first applicant guilty of both charges, establishing that he had marched among some 1,500   people in what had constituted an unauthorised public event. She based her findings on M. and U.’s witness statements and written reports, the administrative offence statements in respect of two charges and the report on the administrative arrest. She dismissed the applicant’s testimony as false, finding that it contradicted the police officers’ testimony and reports, and that the latter were trustworthy because they had “no vested interest”. She sentenced the first applicant to five days’ administrative detention, noting that he had a previous conviction for a similar administrative offence. 14.     On 26 November 2007 the same Justice of the Peace considered the administrative charges against the second applicant. He applied for six witnesses to be called and examined, including five police officers and one defence witness. The Justice of the Peace examined only police officer U., who gave essentially the same testimony as in the first applicant’s case. The second applicant pleaded not guilty and alleged that he had been arrested while walking from the authorised meeting to the metro station. As in the first applicant’s case, the Justice of the Peace based her findings on U.’s witness statements and the written police reports. She dismissed the second applicant’s testimony on the same grounds as in that case. She found him guilty of both charges and sentenced him to five days’ administrative detention. 15.     On the same day the Meshchanskiy District Court of Moscow examined and dismissed appeals lodged by the first and second applicant. 16.     The applicants served their sentences in detention centres for administrative offenders ( спецприемник ). 17.     The other applicants were arrested in the same circumstances and were also convicted of administrative offences. II.     RELEVANT DOMESTIC LAW 18.     For a summary of the relevant domestic law, see Kasparov and Others v. Russia (no. 21613/07, § 35, 3 October 2013), and Navalnyy and Yashin v. Russia (no. 76204/11, §§ 43-44, 4 December 2014). THE LAW I.     COMPATIBILITY RATIONE PERSONAE OF THE APPLICATION IN RESPECT OF THE THIRD, FOURTH, FIFTH, SIXTH AND SEVENTH APPLICANTS 19.     In their observations the Government questioned the representatives’ authority to represent the remaining applicants, only the first and second applicants having submitted powers of attorney authorising Ms Moskalenko and Ms   Mikhaylova to represent them in the proceedings before the Court. 20.     It is to be noted that the applicants lodged their application through their representatives, Ms Moskalenko and Ms Mikhaylova, and have never been directly in contact with the Court. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim(s) within the meaning of Article 34 of the Convention on whose behalf they purport to act. In the present case, the file contains no documents which indicate that the third, fourth, fifth, sixth and seventh applicants wished Ms Moskalenko and Ms Mikhaylova to lodge an application with the Court on their behalf. In the domestic proceedings they were represented by Ms P., who has neither been in contact with the Court nor delegated authority to Ms Moskalenko or Ms Mikhaylova. 21.     Consequently, in the circumstances of the case, the application in so far as lodged in respect of the third, fourth, fifth, sixth and seventh applicants must be rejected as incompatible ratione personae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 (see Post v.   the Netherlands (dec.), no. 21727/08, 20 January 2009; K.M. and Others v.   Russia (dec.), no. 46086/07, §§ 29-30, 29 April 2010; Erişen and Others v.   Turkey , no. 7067/06, §§ 29-30, 3 April 2012; and Lambert and Others v.   France [GC], no. 46043/14, § 91, ECHR 2015 (extracts)). II.     ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION 22.     The applicants complained that their arrest following a demonstration on 24 November 2007 and conviction for administrative offences had violated their rights to freedom of expression and freedom of peaceful assembly, guaranteed by Articles 10 and 11 of the Convention, which read: Article 10 of the Convention (freedom of expression) “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 11 of the Convention (freedom of assembly and association) “1.     Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.     No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A.     Admissibility 23.     The Court notes that this part of application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 24.     The applicants argued that the authorities had interfered with their rights to freedom of peaceful assembly and freedom of expression in two ways. Firstly, their arrest on 24 November 2007 had allegedly prevented them from attending the gathering on Chistoprudnyy Boulevard, an event which had been authorised by the Moscow authorities. Secondly, their arrest and conviction for administrative offences had been a form of retribution for them expressing their political views at the opposition rally earlier on that day. They both contended that they had not planned a march after the gathering on Academician Sakharov Prospekt, and that they had been walking towards the next gathering when the riot police had obstructed their path and arrested them without giving them an opportunity to disperse. They complained that the courts had dismissed their evidence as false when they had refused to call and examine other witnesses or, as in the first applicant’s case, admit video recordings. 25.     The Government considered that there had been no breach of Articles 10 § 2 or 11 § 2 of the Convention in the present case. They claimed that the applicants had attempted to conduct an unauthorised public march down Myasnitskaya Street, and that the police had lawfully demanded that they disperse, but they had continued marching and chanting political slogans. They had therefore had to be stopped and arrested. They considered that the penalty imposed on the applicants had been proportionate, given the flagrancy of the illegal conduct and the fact that they were repeat offenders. 2.     The Court’s assessment (a)     The scope of the applicants’ complaints 26.     The Court will examine this complaint under Article 11 of the Convention, interpreted in the light of Article 10 of the Convention, regard being had to its established case-law (see, among other authorities, Ezelin v.   France , 26 April 1991, § 35, Series A no. 202, and Kasparov and Others , cited above, §§ 82-83). (b)     Whether there was interference with the exercise of the freedom of peaceful assembly 27.     The Court considers in that connection that irrespective of whether the applicants were heading to a lawful public gathering, as they alleged, or were already in the process of conducting an unauthorised rally, as the Government claimed, their dispersal and arrest constituted an interference with their right of peaceful assembly, as did the ensuing administrative charges brought against them. The Court observes, moreover, that in the present case the Government did not dispute that there had been an interference with the right to peaceful assembly. (c)     Whether the interference was justified 28.     The Court observes that the measures taken against the applicants, in particular the interception of their march, or perceived march, their arrest, pre-trial detention and the administrative charges, were based on the finding that they had held an unauthorised demonstration and had not complied with the police’s orders to end it. 29 .     The Court would accept that even if the applicants had not intended to hold a march, the appearance of a large group of protestors walking in a cluster could reasonably be perceived as one (see Navalnyy and Yashin , cited above, § 56). It reiterates that an unlawful situation, such as the staging of a demonstration without prior authorisation, does not necessarily justify an interference with a person’s right to freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 150, ECHR 2015, and the cases cited therein). In particular, where demonstrators do not engage in acts of violence the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (see Oya Ataman v. Turkey , no. 74552/01, § 42, ECHR 2006 ‑ XIV; Bukta and Others v. Hungary , no. 25691/04, § 34, ECHR 2007 ‑ III; Fáber v. Hungary , no. 40721/08, § 49, 24 July 2012; Berladir and Others v. Russia , no. 34202/06, § 38, 10 July 2012; Malofeyeva v. Russia , no. 36673/04, §§ 136-37, 30 May 2013; and Kasparov and Others , cited above, § 91). Whether such a demonstration is objectionable and what, if any, measures it calls for on the part of the police should primarily depend on the seriousness of the nuisance it was causing (see Navalnyy and Yashin , cited above, § 62). 30.     The present case is identical to several other Russian cases in which the Court found violations of Article 11 of the Convention because of the police stopping and arresting protestors for the sole reason that their demonstration as such had not been authorised, the formal unlawfulness of the demonstration being the main justification for the administrative charges (see Malofeyeva , §§   136 ‑ 39; Kasparov and Others , §   95; and Navalnyy and Yashin , § 65, all cited above). 31.     As in those cases, the procession in the present case was undeniably peaceful, and so was the applicants’ conduct. However, the applicants’ march was dispersed and the applicants were arrested and sentenced to five days’ administrative detention without any assessment of the disturbance they had caused, merely because they had marched without authorisation and had allegedly ignored the police’s orders to stop. The Court finds no reason to distinguish the present case from those cited above, or to depart from its findings made therein. Even assuming that the applicants’ arrest and administrative sentence complied with domestic law and pursued one of the legitimate aims enumerated in Article 11 § 2 of the Convention – presumably, prevention of disorder – the Government have failed to demonstrate that there existed a “pressing social need” to interrupt the procession, arrest the applicants and, in particular, sentence them to a term of imprisonment, albeit a short one. 32 .     Moreover, the measures also had serious potential to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate. The chilling effect of the sanctions was further amplified by the fact that they targeted the first applicant, a well-known public figure, whose deprivation of liberty was bound to attract wide media coverage. 33.     There has accordingly been a violation of Article 11 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 34.     The applicants complained that their arrest had been arbitrary and unlawful. The second applicant also complained that his arrest and pre-trial detention pending the administrative proceedings from 24 to 26 November 2007 had not been justified. Article 5 § 1 of the Convention provides: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)     the lawful detention of a person after conviction by a competent court; (b)     the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d)     the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e)     he lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f)     the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A.     Admissibility 35.     The Court notes that this part of application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 36.     The Government alleged that the applicants had disobeyed the police officers’ orders to stop the unauthorised march, and that it had been necessary to arrest them to put an end to their unlawful conduct and to take them to the police station so that an administrative offence report could be drawn up. Overall, they considered that the applicant’s deprivation of liberty had complied with domestic law and that all the requisite formalities, such as the issuing of a lawful detention order, had been fulfilled. They argued that the first applicant’s pre-trial detention had not exceeded three hours, and that the second applicant’s detention had been within the statutory time ‑ limit of forty ‑ eight hours. 37.     The applicants maintained that it had not been necessary to arrest them in order to draw up the police report, and that after that had been done at the police station there had been no reason to remand them in custody pending the hearing before the Justice of the Peace. 2.     The Court’s assessment 38.     The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive factor. The Court must also be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent individuals from being deprived of their liberty in an arbitrary fashion. Furthermore, the list of exceptions to the right to liberty secured in Article 5 § 1 of the Convention is an exhaustive one, and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his liberty (see Giulia Manzoni v. Italy , 1   July 1997, § 25, Reports of Judgments and Decisions 1997 ‑ IV). 39.     In the present case, the applicants were first escorted to the police station in accordance with Article 27.2 of the Code of Administrative Offences. The Court has found above that the applicants’ procession could reasonably be perceived as a demonstration (see paragraph 29 above), possibly in breach of the domestic requirements for holding a public event. The police therefore had formal grounds for charging the applicants with an administrative offence under Article 20.2 of the Code of Administrative Offences. The Court also accepts that the situation might not have allowed the relevant documents to be drawn up on the spot, given the number of protestors and the scale of agitation there. It concludes that the escorting procedure had the purpose of bringing the applicants before the competent legal authority on suspicion of having committed an administrative offence and that it complied with Article 5 § 1 (c) of the Convention. 40.     Once at the police station, the applicants’ detention was ordered in accordance with Article 27.3 of the Code of Administrative Offences. The Court notes that the duration of administrative detention should not as a general rule exceed three hours. This time-limit was complied with in respect of the first applicant, who appeared before the Justice of the Peace at 6.20 p.m. By contrast, as regards the second applicant, neither the Government nor any other domestic authorities provided any justification for his forty-eight-hour detention as required by Article 27.3 of the Code, namely that it was an “exceptional case” or was “necessary for the prompt and proper examination of the administrative case and to secure the enforcement of any penalty to be imposed”. In the absence of any explicit reasons given by the authorities for detaining him for more than three hours, the Court considers that his detention was unlawful (see, for similar reasoning, Frumkin v. Russia , no. 74568/12, §   150, ECHR 2016 (extracts)). 41.     In view of the foregoing, the Court finds no violation of Article   5 §   1 of the Convention as regards the first applicant, but finds a violation of Article   5   §   1 of the Convention as regards the second applicant on account of his detention from 24 to 26 November 2007. IV.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 42.     The applicants complained of a violation of the right to a fair and public hearing in the administrative proceedings against them. They relied on Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention. The relevant parts provide: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (b)     to have adequate time and facilities for the preparation of his defence; (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...” A.     Admissibility 43.     The parties agreed that Article 6 of the Convention was applicable to the proceedings in question. The Court has previously held that the offence set out in Article   19.3 of the Code of the Administrative Offences should be classified as “criminal” for the purposes of the Convention (see Malofeyeva , cited above, §§ 99-101; Nemtsov v. Russia , no. 1774/11 , § 83, 31 July 2014; and Navalnyy and Yashin , cited above, § 78), as should the offence under Article 20.2 of the Code (see Kasparov and Others , cited above, §§ 37-45; Mikhaylova v. Russia , no. 46998/08, §§ 57-69, 19 November 2015; and Frumkin , cited above, §§ 154-56). The Court sees no reason to reach a different conclusion in the present case and considers that the proceedings fall to be examined under the criminal limb of Article 6 of the Convention. 44.     The Court also considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It should therefore be declared admissible. B.     Merits 1.     The parties’ submissions 45.     The Government maintained that the proceedings in the applicants’ administrative cases had complied with Article 6 of the Convention. They argued that each applicant had been given a fair opportunity to state his case and have the police officers cross-examined. The Government claimed that the hearings had been open to the public, that the applicants had been given sufficient time to prepare their defence and that they were being assisted by lawyers of their choice. 46.     The applicants contended that they had not been given a fair hearing. They complained that the court had refused to call and examine the witnesses they had requested and, in the first applicant’s case, had refused to accept the video recordings of their arrest as evidence. Furthermore, the court had not respected the principle of equality of arms in that it had rejected the testimony of the applicants as false while giving weight to that of the two police officers. In addition, the applicants complained that the hearing in the first applicant’s case had not been open to the public, that their right to mount a defence had been violated and that they had not been given adequate time to prepare their defence. 2.     The Court’s assessment 47.     The Court observes that the circumstances of the applicants’ confrontation with the riot police were disputed by the parties to the administrative proceedings. In particular, the applicants contested that the procession had caused a disturbance, and denied that they had had an opportunity to disperse before being arrested. However, the courts in those proceedings decided to base their judgment exclusively on the version of events put forward by the police and refused to accept additional evidence such as video recordings, or to call other witnesses, in the absence of any obstacles to doing so. 48.     The Court has already examined a number of applications against Russia concerning administrative proceedings against people charged with breaching rules of conduct of public events or with failing to obey police orders to disperse. It found that in those proceedings the Justices of the Peace had accepted the submissions of the police readily and unequivocally and had denied the applicants any possibility of adducing any proof to the contrary. It held that in the dispute over the key facts underlying the charges where the only witnesses for the prosecution were the police officers who had played an active role in the contested events, it was indispensable for the courts to use every reasonable opportunity to verify their incriminating statements (see Kasparov and Others , § 64; Navalnyy and Yashin , § 83; and Frumkin , §   165, all cited above). Failure to do so ran contrary to the fundamental principles of criminal law, namely in dubio pro reo (see Frumkin , §   166, and the cases cited therein). 49.     The Court notes that the applicants’ proceedings were conducted in a virtually identical manner, that is, without them being given any opportunity to adduce evidence in support of their version of events. Moreover, the courts did not require the police to justify the interference with the applicants’ right to freedom of assembly, which included a reasonable opportunity to disperse when such an order is given (ibid.). 50.     The foregoing considerations are sufficient to enable the Court to conclude that the administrative proceedings against the applicants, taken as a whole, were conducted in violation of their right to a fair hearing. 51.     In view of these findings, the Court does not consider it necessary to address the remainder of the applicants’ complaints under Article 6 §§ 1 and 3   (b), (c) and (d) of the Convention. V.     ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION 52.     The applicants complained that their arrest and detention on administrative charges had pursued the aim of undermining their rights to freedom of assembly and freedom of expression, and had been for political revenge. They complained of a violation of Article 18 of the Convention, which reads: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 53.     In their submissions under this head the parties reiterated their arguments as regards the alleged interference with the right to freedom of assembly, the reasons for the applicants’ deprivation of liberty and the guarantees of a fair hearing in the administrative proceedings. 54.     The Court notes that this complaint is linked to the complaints examined above under Articles 5 and 11 of the Convention and must therefore likewise be declared admissible. 55.     The Court has found above that the applicants’ arrest and administrative detention had the effect of preventing and discouraging them and others from participating in protest rallies and actively engaging in opposition politics (see paragraph 32 above), and has found a violation of Articles 5 and 11 of the Convention. In view of this, the Court considers that it is not necessary to examine whether, in the present case, there has been a violation of Article 18 of the Convention. VI.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 56.     Lastly, the applicants complained under Article 3 of the Convention that the riot police had used excessive force against them, and that the conditions of their detention and prison transfer had been poor. They also referred to Articles 7 and 14 of the Convention. 57.     The first applicant’s complaint concerning the conditions of his prison transfer was formulated for the first time in his observations, on 20   June 2012. The Court notes that this complaint was lodged out of time as it does not comply with the six-month rule. Accordingly, it must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. The applicants’ other complaints under Article 3 of the Convention have not been clearly formulated; they do not contain an account of the relevant events and are not supported by evidence. They must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 58.     The Court has examined the other complaints submitted by the applicants. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the application must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. VII.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 59.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 60.     The applicants claimed a symbolic amount of 5,000 euros (EUR) each in respect of non-pecuniary damage. 61.     The Government contested their claims and considered that a finding of a violation would constitute sufficient just satisfaction. 62.     The Court observes that it has found a violation of Articles 11 and 6 of the Convention in respect of both applicants, and of Article 5 of the Convention in respect of the second applicant. In these circumstances, the Court considers that the applicants’ suffering and frustration cannot be compensated for by the mere finding of a violation. It awards them the requested amount of EUR 5,000 each in respect of non ‑ pecuniary damage. B.     Costs and expenses 63.     The applicants also claimed 200,000 Russian roubles (RUB) for the fees paid by the first applicant to Ms Moskalenko and Ms Mikhaylova for representing all the applicants before the Court. In May 2012, when the legal services agreements were signed, this was the equivalent of about EUR   5,000. 64.     The Government argued that the applicants had failed to prove that these costs and expenses had been necessarily incurred. They also noted that the legal fees had been charged on the basis of legal services agreements signed in 2012. 65.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 3,000 under this head, plus any tax that may be chargeable to the applicant. C.     Default interest 66.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1.     Declares , unanimously, the complaints raised by the first and the second applicants under Articles 5, 6, 10, 11 and 18 of the Convention admissible and the remainder of the application inadmissible;   2.     Holds , unanimously, that there has been a violation of Article 11 of the Convention as regards both applicants;   3.     Holds , unanimously, that there has been no violation of Article 5 § 1 of the Convention as regards the first applicant;   4.     Holds , unanimously, that there has been a violation of Article 5 § 1 of the Convention as regards the second applicant;   5.     Holds , unanimously, that there has been a violation of Article 6 § 1 of the Convention as regards both applicants;   6.     Holds , unanimously, that there is no need to examine the remainder of the complaints under Article 6 of the Convention;   7.     Holds , by six votes to one, that there is no need to examine the complaint under Article 18 of the Convention;   8.     Holds , unanimously, (a)     that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     to each of the applicants EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     to the first applicant EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   9.     Dismisses , unanimously, the remainder of the applicants’ claim for just satisfaction.   Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Luis López Guerra   Registrar   President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a)     Partly dissenting opinion of Judge Keller; (b)     Concurring opinion of Judge Serghides. L.L.G. J.S.P.   PARTLY DISSENTING OPINION OF JUDGE KELLER 1.     Although I voted with the majority as concerns the violations of Articles 5 § 1, 6 § 1 and 11 of the Convention found in the present case, I regret that I am unable to agree with my colleagues with regard to Article   18 of the Convention. For the reasons set out below, I consider that the merits of the complaint submitted by the applicants under that provision ought also to have been examined. 2.     Under Article 18 of the Convention, the applicants in the present case argued that they suffered violations of their rights under Article 5 § 1 and Article   11 of the Convention that were inflicted “for political revenge” (see paragraph   52 of the majority’s judgment). Though this allegation falls squarely within the ambit of Article 18, the majority declared it unnecessary to examine whether that provision had been violated. Instead, my colleagues emphasised that they had already found a violation of the applicants’ rights under Article 11 of the Convention and established that this was likely to have a “chilling effect” on others (see paragraph 55 of the majority’s judgment, referring to paragraph 32 above). 3.     Article 18 of the Convention, however, enshrines values beyond the protection of liberty or of free assembly and association. In this regard, I should like to refer to my partly dissenting opinion in Kasparov v. Russia (no. 53659/07, 11 October 2016), a case brought by the first applicant in the present case. Mutatis mutandis , the arguments made therein also apply here. In particular, I reiterate that, although it is an accessory provision, Article 18 of the Convention must be understood as protecting a separate legal interest, additional to that protected by the other Convention rights and freedoms with which it is invoked. This understanding of the provision follows both from the fact that it was enshrined in the Convention as a separate article, which logically entails a need to grant it a reasonable scope of independent application, and from its drafting history. [1] 4.     The majority’s approach to Article 18 of the Convention in the present case is not unprecedented. Through its interpretation of the provision, including by means of the high burden of proof it often imposes and its propensity to declare a separate examination of the relevant complaints unnecessary, the Court has made it exceedingly difficult for applicants to succeed in claiming a violation of Article 18 before the Court. However, cases such as the present one disclose an urgent need to address the instrumentalisation of legal proceedings in order to target and silence dissidents and oppositional actors in certain member States. As I have previously argued, in a joint partly dissenting opinion with judges Nicolaou and Dedov ( Navalnyy and Ofitserov v. Russia , nos. 46632/13 and 28671/14, §   7, 23 February 2016), “such a distortion of the law – the singling out of dissidents in order to silence them by means of criminal proceedings – is precisely the sort of abuse from which Article 18 is intended to provide protection.” 5.     The present case discloses an unambiguous prima facie case of a violation of Article 18 of the Convention, and for that reason the Court should have examined the merits of the complaint under that article. Instead, the majority has chosen an approach that deprives Article 18 of a reasonable scope of application. This is alarming, given that tendencies such as those which underlie the present case run counter to the demands of a democratic society. The Court should therefore urgently reconsider its current approach, which neutralises Article 18 despite the fact that this provision represents the most appropriate avenue for responding to undemocratic tendencies.   CONCURRING OPINION OF JUDGE SERGHIDES 1.     I voted in favour of the judgment in full and the aim of this opinion is to deal more extensively with the finding of the Court that there has been a violation of Article 5 § 1 of the Convention in respect of the second applicant. 2.     Article 5 § 1 (c) of the Convention provides as follows: “1.   Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c)   the lawful arrest or detention of a person affected for the purpose of bringing him befo