CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 juin 2019

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UKRAINE   (Application no. 74768/10)                   JUDGMENT         STRASBOURG   18 June 2019     FINAL   18/09/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Chernega and Others v. Ukraine, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Paulo Pinto de Albuquerque,   Faris Vehabović,   Egidijus Kūris,   Georges Ravarani,   Péter Paczolay, judges,   Sergiy Goncharenko, ad hoc judge, and Marialena Tsirli, Section Registrar, Having deliberated in private on 26 March 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 74768/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17   December 2010 by eleven Ukrainian nationals (“the applicants”): Mr Denis Vadimovich Chernega, born in 1982; Mr   Andrey Andreyevich Yevarnitskiy, born in 1983; Mr Gennadiy Leonidovich Kovshyk, born in 1963; Mr Boris Yevgenyevich Zakharov, born in 1977; Mr Andrey Vladislavovich Yevarnitskiy, born in 1959; Mr   Igor Fyodorovich Yasinskiy, born in 1957; Ms Lyubov Vladimirovna Melnik, born in 1959; Mr Sergey Sergeyevich Melnik, born in 1983; Mr   Andrey Viktorovich Tsukanov, born in 1969; Mr Valeriy Yuryevich Bortnik, born in 1967; and Mr Sergey Anatolyevich Kirilin, born in 1962. 2 .     The applicants were represented by Mr M.   Tarakhkalo, a lawyer practising in Kyiv. When the application was lodged and the applicants’ observations and claims for just satisfaction were submitted on 15   November 2011 and 8 October 2014, the applicants were also being represented by Mr   A.   Bushchenko, who at that time was a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna. 3.     The third, seventh and ninth applicants complained under Article 3 of the Convention that they had been ill-treated by State agents in the course of the protests in Gorky Park in Kharkiv in which they had participated in May and June 2010. They further complained that the State had failed to protect them from that ill-treatment and to investigate effectively their allegations in that respect. The first and second applicants complained under Article 6 § 1 of the Convention that they had not had a fair hearing before the court of appeal that examined their administrative-offence cases, in that the court had failed to ensure their presence at its hearings. The first to sixth applicants complained under Article 11 of the Convention that they had been arrested and prosecuted for their participation in the above-mentioned protests. All eleven applicants complained under Article 11 of the Convention that in the course of the above-mentioned protests, they had been subjected to assaults from which the respondent State had failed to protect them. 4.     On 5 April 2011 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible. 5 .     On 27 May 2014 the parties were invited to submit further observations concerning the above complaints, as well as on the question of whether the applicants had at their disposal an effective domestic remedy in respect of their complaints under Article 11 of the Convention. 6.     As Ms Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court), the Vice-President of the Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Rule   29   §   1(a)). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicants live in Kharkiv. 8.     According to the applicants, in the period from 20 May to 6 July 2010 they participated in obstructive protest activities against a road-construction project, in particular tree-felling, in Gorky Park ( Парк ім. Горького ) in Kharkiv. 9.     The following issues are raised in connection with those events and their aftermath: [1] (i)     all applicants: whether alleged verbal and physical harassment on the part of the personnel involved in the project against the applicants breached their right to freedom of peaceful assembly; (ii)     the first six applicants: whether their arrest and conviction for refusal to obey the orders to leave the site breached their freedom of peaceful assembly. In this respect there are two sub-groups: the first five applicants who were arrested together and the sixth applicant who was arrested on a different date; (iii)     the first and second applicants: whether the above-mentioned proceedings for failure to obey the police order to leave were fair in view of the applicants’ absence from the appeal hearings; (iv)     the third, seventh and ninth applicants: whether those applicants were subjected to inhuman or degrading treatment by the personnel involved in the project and, if so, whether there was a failure to protect them from such treatment and investigate it effectively. A.     Approval of the road-construction project in Gorky Park, public consultations and preparation for its implementation 10 .     On 23 June 2004 the Kharkiv City Council (“the City Council”) adopted a document entitled General Urban Development Plan until 2026, which had been drafted by the State Academic Institute for Urban Planning “ Dipromisto” (“the Urban Planning Institute”). A public consultation on the plan had been held in 2003. 11 .     On 20 September 2007 the Kharkiv Municipal Construction Department ( Департамент будівництва та шляхового господарства Харківської міської ради ) published in the Kharkivsky Kuryer newspaper information about its plan to build a road from Sumska Street to Novgorodska Street, namely through the park in question, and invited comments. 12.     On 10 September 2008 the City Council allocated land for the road construction to the Municipal Construction Department. 13 .     On 14 March 2008 the Urban Planning Institute approved the plan submitted by the Kharkiv Municipal Urban Planning Department ( Департамент містобудування, архітектури та земельних відносин ) envisaging construction of the road through the park and modification of the Urban Development Plan in that respect. 14 .     On 25 January or February 2009 the City Council approved the overall plan for the prospective road construction, including the road through the park. 15.     On 27 April 2010 a commission of municipal officials examined the trees which had to be felled in order to allow the road construction and drew up a detailed list of the trees, including their varieties, ages, diameters and state of health. On 18 May 2010 the Kharkiv Regional Environmental Protection Department approved the list. 16 .     On 7 May 2010 the Municipal Construction Department published a notice about the planned construction of the road in Ekologiya Syogodni (Environment Today), a newspaper published by the Kharkiv Regional Environmental Inspectorate. The notice contained an indication of where the road would be sited, and stated that it would be 1,283 metres long and 16   metres wide, with a footpath and a bicycle path. The notice stated that in the process, 503 trees would be destroyed but that 75 trees and 35 bushes would be replanted along the road. Comment was solicited and the Department’s postal address given for the purpose. 17.     On 17 May 2010 the Municipal Construction Department sent letters to the regional environmental protection authorities explaining that the purpose of the road construction was to relieve the problem of increasing traffic in central Kharkiv by creating a road linking two radial roads and thus circumventing the city centre. 18 .     On 19 May 2010 the Executive Committee of the Kharkiv City Council (the municipality’s executive authority, “the Executive Committee”) authorised the felling of 503 trees in Gorky Park. 19 .     On 11 or 19 May 2010 the Construction Department entered into a contract with private company P., engaging the latter as the main contractor for the road construction project (“the Main Contractor”). 20.     On 19 May 2010 the Main Contractor signed an agreement with a private company to perform “preparatory works” for the road construction. On the same date the Main Contractor also subcontracted municipal company K. to do the tree-felling on the construction site. Company K. in turn engaged another municipal company as its own subcontractor (hereinafter “the subcontractors”). 21 .     On 26 May 2010 the Regional Architecture and Construction Inspectorate ( Інспекція державного архітектурно-будівельного контролю у Харківській області ) issued to the Municipal Construction Department a permit to carry out preparatory work for the road construction. B.     Private security and law-enforcement planning measures 22 .     On 13 or 19 May 2010 the Main Contractor signed an agreement for the provision of security guard services with the local authority-owned company Municipal Guard ( Munitsipalna okhorona; Комунальне підприємство «Муніципальна охорона» – hereinafter “MG”). Under the agreement MG undertook to provide services consisting of guarding the above-mentioned construction site. MG held a licence authorising it to provide commercial security guard services, issued on 2 February 2010 by the Ministry of the Interior. 23.     On 19 May 2010 the Executive Committee sent a letter to the chief of the Kharkiv city police. Referring to its decision of the same date authorising the felling of trees (see paragraph 18 above), it asked him to dispatch police officers to the construction site as from 20 May 2010 to ensure public order. 24 .     On 19 May 2010 Kharkiv city police approved an action plan for ensuring public safety during the tree-felling work. According to the plan, twenty-seven active officers were assigned for ensuring public order and safety at the site daily from 20 May and a number of officers were to be kept in reserve at the local police station in case of need. It was mentioned in the plan that the tree felling could potentially generate picketing, demonstrations and other, unexpected action by opponents of the construction project. 25 .     On 21 May 2010 the Main Contractor signed an agreement for the provision of security guard services with private security company   P-4 ( приватне підприємство «Охоронне агентство «Р-4» ). (hereinafter “PS”). The subject of the agreement was the provision of security guard services for the purpose of preventing third parties from entering the road construction site, and the services were to be provided as from 28   May 2010. PS held a licence authorising it to provide commercial security guard services, issued on 11 April 2007 by the Ministry of the Interior. 26 .     On 25 May 2010 the Main Contractor asked the chief of the city police to send police units to the site at 7 a.m. on 26 May 2010 to prevent third parties from infiltrating the construction site. On 29 May it asked the chief of police of the then Dzerzhinsky (presently Shevchenkivsky) District, where Gorky Park is located (hereinafter “the district”), to ensure public order on the construction site, referring to an incident the previous day in which, according to the company, unidentified people had interfered with the construction work, shouted profanities at the workers and tried to provoke a fight. C.     General description of the events in Gorky Park 27.     The tree felling commenced on 20 May 2010, attracting a number of individuals (including, according to them, the applicants) who protested against it. According to the applicants, there were “hundreds” of protesters. No formal notification had been sent to the municipal authorities. The protesters alleged, inter alia , that the felling was unjustified and not duly authorised, and demanded proof of its legality. Some protesters actively attempted to interfere with the work. In particular, they climbed the trees with the help of climbing equipment, and attached themselves to the trees to be felled or interfered with work to be carried out by machinery by placing themselves in front of it. 28 .     Notwithstanding the protests, the work proceeded. According to the Government’s submissions, in response to the protesters’ actions the security guards attempted to drive them away by pushing them back beyond the boundaries of the area. In some instances, clashes took place. On at least fifteen occasions ambulances were called to the site. The police officers deployed at the site allegedly remained largely passive in the face of the clashes. 29.     It appears that the bulk of the protest activity was brought to an end on 2 June 2010 and most of the protesters left the site on that day (see paragraph 76 below regarding the relevant police report). However, some of the protesters apparently continued to picket the construction site until about mid ‑ August 2010 (see also paragraphs 64 and 65 below concerning the sixth applicant’s arrest on 6 July 2010). 30.     Video and photographic evidence of the events of 20 May to 2 June 2010, described in paragraphs 31 to 35, 38, 40, 42 and 45 below, was provided by the applicants. At the time of examination of the case by this Court, similar video evidence was also publicly available online (see paragraph   45 below regarding the evidence concerning the events of 28 May, for example). [2] Certain video material was also examined in the course of the domestic proceedings (see, for example, paragraphs 51 and 82 below) but it was not provided to the Court. The Court will rely on the evidence set out below to the extent that it does not contradict the domestic authorities’ findings (see on this point paragraph 248 below) and, in particular, to the extent that it disproves the applicants’ own allegations (see, for example, paragraphs 145, 154 and 212 below). D.     Events of 20-25 May 2010 31 .     Material for 20 May 2010 consists of a news report by the Kharkiv local television channel ATN concerning the events in Gorky Park. The report shows workers felling trees, apparently unobstructed. There is no sign of any protesters. The narrator says that the tree-felling work for the road construction is advancing rapidly. The project dated from 2007 but, at the time, was attracting opposition from academics, environmentalists and city residents. At this point the report shows footage of what appears to be a demonstration in front of a public building with flags and the slogan “Dobkin [Kharkiv mayor at the time], do not destroy the park”. This is marked as archive footage. The narrator goes on to say that those protests have not prevented the city authorities from pushing ahead with the project. At what appears to be a public meeting of city authorities, the head of the Municipal Construction Department is shown explaining the need for the new road in the city’s traffic scheme. In footage marked “17 September 2007” the then-mayor of Kharkiv is shown speaking at what appears to be a press conference about the sources of financing for the project. Mr Sh., a representative of Pechenigy , an NGO, discusses his concern that more trees would be felled than authorised. Mr K., a representative of another NGO, My Kharkivyany , denies that he has been shown the permits for tree felling, in particular the Executive Committee’s decision of 19   May. The acting mayor of Kharkiv is shown at a public meeting of the Executive Committee saying that the project has all the necessary permits and the NGOs have been informed. The narrator says that civil activists have complained to the police of illegal tree felling and intended to appeal to the prosecutor’s office and the courts. 32.     Material for 22 May shows an area that has been cleared of some trees. Protesters are seen standing by two trees and hugging them. 33 .     Material for 23 May shows tree-felling work with a number of individuals standing by. An individual is seen being taken away by the police. Three individuals are surrounding a tree and facing the police. One of them says “Welcome to the picnic”. 34 .     Material for 24 May shows tree-felling work. Police and individuals who appear to be protesters surround the loggers who are holding chainsaws. One scene shows a logger starting to cut down a tree with a chainsaw, at which moment an individual in civilian clothing comes along and puts his foot on the tree trunk at the level where the logger is attempting to cut. The worker walks away. 35 .     Material for 25 May shows a large number of police officers standing in lines blocking protesters’ access to certain areas where tree felling is ongoing or pulling individual protesters away from the trees while protesters attempt to cling to them. It appears that the protesters are pushed, pulled and escorted away from the felling area and released. Another scene shows the police pushing back some protesters who appear to be trying to get closer to the area where a tall tree is being cut down. A worker starts cutting a tree with a chainsaw, he makes a short pause, a protester comes along and hugs the tree, preventing the worker from proceeding. E.     Alleged attacks on the applicants and other protesters 36.     The applicants alleged a number of “attacks” on them and other protesters by the security guards and loggers in the period from 20 May to 2   June 2010. The following alleged incidents are of particular note. 1.     Incident of 27 May 2010 37 .     According to the applicants, on 27 May 2010 the ninth applicant was beaten by unidentified men in orange vests. An ambulance was called and the ninth applicant was taken to hospital where he was diagnosed as having sustained injuries to the soft tissue of the head and face, and was treated as an outpatient. On the same day he lodged a complaint with the district police, alleging that he had been assaulted in the course of the Gorky Park events near the children’s railway. 38 .     Video and photographic material for 27 May shows the following scenes: (i) a person introducing himself as the head of the Municipal Construction Department and surrounded, apparently, by some other officials, including a police officer, is arguing with protesters; (ii) a group of protesters confront a bulldozer near railway tracks. They attempt to sit down on its blade. Several individuals in civilian clothing unsuccessfully attempt to pull the protesters off, but they manage to surround the blade and block the bulldozer; (iii) a group of individuals in orange vests and a group in civilian clothing are shown confronting and pushing each other in a chaotic fashion around an excavator. Several individuals in civilian clothing on what appears to be the protesters’ side are seen recording the events with cameras. Photographs reproduce what appear to be some aspects of the same scenes. Red-and-white warning tape is seen on some photographs for the first time. 2.     Incident of 31 May 2010 39 .     According to the applicants, on 31 May 2010 the seventh applicant was assaulted by men in black wearing MG badges in response to her protests about the beating of another protester. According to her, the police officers who were standing nearby observed the assault without reacting to her cries for help. On that day she was taken to hospital by ambulance. In the hospital she was diagnosed as suffering from stress-related hypertension and soft tissue contusions in the lumbar area. She stayed in the hospital from 10 a.m. to   4   p.m. that day. On 1 June 2010 the seventh applicant complained to the head of the district police that on 31 May she had been hit in the back by the MG staff. 40 .     Video and photographic material for 31 May shows another tumultuous scene. The sound of machinery is heard in the background and men in black with badges are seen confronting a large group of individuals in civilian clothing. They appear to be pulling some protesters away from an area they are attempting to protect. They then form an elbow-to-elbow line blocking access. Individuals in civilian clothing on the protesters’ side are seen filming the events. There are shouts of “Police!” and “Call an ambulance!” A woman (apparently the seventh applicant) is seen lying on the ground surrounded by the crowd. An ambulance team arrives and takes her away. Photographs show other scenes, supposedly from the same day: (i)   individuals, apparently protesters, are seen sitting in groups around trees marked with slogans; (ii) men in black clothing with badges confront individuals in civilian clothing, pushing them away; (iii) a man in black is facing what appears to be a group of protesters sitting on the ground and holding onto a tree. 3.     Incident of 2 June 2010 41 .     According to the applicants, on 2 June 2010 men in black with MG badges and loggers were attempting to clear the site of protesters. In the course of that action, the third applicant was closely approached by two loggers, subsequently identified as A. and K., employees of one of the subcontractors. They threatened him and a group of other protesters with working chainsaws. One of them nearly injured the third applicant. The Government alleged, on the contrary, that it was the protesters who had attacked the workers, trying to take away the chainsaws so that the workers had had to retreat to avoid injuries. In their statements in the course of the domestic investigation, as summarised in the decision not to institute criminal proceedings of 9 August 2010 (see paragraph 81 below), A. and K. stated that on the day in question, on arriving at the designated felling area in Gorky Park, they had observed men in black and protesters. The latter had started insulting the workers and the men in black. They had had then started to push A. and K., grabbing their arms, trying to seize their chainsaws. In order to prevent those people from approaching, A. and K. had switched on the chainsaws. However, the protesters had started approaching and in order not to injure them, A. and K. had had to step back, holding the chainsaws in front of them. 42 .     Video material for 2 June shows a tumultuous scene involving dozens of individuals, with men in black attempting to push the protesters away from the trees and the protesters attempting to hold their ground and push back. Several police officers observe. Some distance away from this altercation, two workers are seen starting their chainsaws. At the same time an individual identified as the third applicant approaches closely and confronts one of the workers, raising and spreading his arms. Several other individuals also closely approach the worker. The worker is shown stepping back while holding the chainsaw close and waving it in horizontal semi-circles in front of him. Shortly thereafter, a group of individuals in camouflage and in black intervene and interpose themselves in a line between the workers and the protesters. F.     Arrest of and proceedings against certain applicants 1.     Arrest of certain applicants on 28 May 2010 and subsequent proceedings 43 .     On 28 May 2010 the first to fifth, the eighth and the tenth applicants, among other protesters, were arrested and taken to a police station, where charges of malicious insubordination in the face of lawful demands of a police officer were drawn up. According to those reports, the above applicants had repeatedly refused to abide by police officers’ instructions to leave the construction site and resisted the officers’ efforts to remove them, in particular by dragging their feet and attempting to break free and to remain on the site. It appears that the applicants were released shortly after the reports had been drawn up. 44 .     On various dates those reports were examined by the Kharkiv Dzerzhinsky District Court (“the District Court”). During the hearings, the applicants pleaded not guilty. They submitted, in particular, that on the morning of 28 May 2010 they had been in Gorky Park along with some other protesters to express their dissatisfaction with the tree felling (see, however, the first and second applicants’ statements, which differed from others in this respect, at paragraphs 52 and 53 below). The construction site had no boundary markers and they had believed that they were lawfully in a public open space. About 100 police officers had been standing nearby, and they had never asked the protesters to leave the area. A number of men in black with MG badges had surrounded the protesters and started pressing them into a tight circle. The police officers had then approached and, instead of responding to the protesters’ cries for help, had taken some of the protesters, including the applicants, out of the crowd one by one and escorted them to the police station, without any demands or explanations. The applicants had followed the officers without offering any resistance. 45 .     Video and photographic material for 28 May shows an individual in civilian clothing leading a group of several dozen men in black and other clothing with badges. They approach a group of protesters, who are within a zone marked off with warning tape standing by what appears to be a railroad crossing. The individual repeats several times “Please leave the construction site”. He receives the response: “This is a park, not a construction site”. Then the people with badges, having lined up elbow ‑ to ‑ elbow, start pushing, apparently attempting to push the protesters away from the crossing towards the periphery of the marked-off area. The protesters resist the pressure and some shout “Police!” and “The park is ours!” ( Парк наш! ) A large group of police officers arrives. On seeing them, the protesters start chanting “Police with the people!” ( Милиция с народом! ) By the time the police have arrived, the protesters have been moved away from the crossing and are surrounded by the people with badges, in a tight circle, but are still within the marked-off area. The police officer in charge exchanges inaudible words – he appears to be saying “Do you wish to leave [the territory]?” ( Хотите покинуть? ) – with a person who appears to be one of the surrounded protesters, and says to the other officers “To the police station!”. The exact exchange is difficult to hear as there is so much noise, in particular from the protesters, who continue to chant “Police with the people!” The police officers then start prising individuals from the group and lead them away from the marked-off area. Several are seen dragging their feet and arguing. Eventually, the area previously occupied by the protesters is cleared and an excavator moves through it. (a)     The first and second applicants 46 .     In his statement to the police the first applicant said that at 7.30   a.m. on 28 May 2010 he had been in Gorky Park with his bicycle. He had been grabbed by people with MG badges and then handed over to the police. 47 .     In his statement to the police the second applicant said that at 7.20   a.m. on 28 May 2010 he had been in the park near the railway crossing, where he had seen a crowd and had come closer to find out what was going on. He had been unaware that construction work was being conducted there. Individuals with MG badges had pushed him and others away from the railway crossing and encircled them. Afterwards, police officers had come and dragged him out of the circle and to the police station. He had not heard any warnings to leave the site. 48.     On 28 May 2010 the cases against the first and second applicants were sent to court. The applicants requested that the hearings in their cases be postponed as they needed time to appoint a lawyer. They appointed a lawyer on the same day. 49 .     The second applicant’s administrative-offence case file contains two versions of the report drawn up by arresting officers and addressed to their superiors concerning the circumstances of his arrest. The first version states that the second applicant was taken to the police station because he had been protesting at the construction site in Gorky Park, thus putting his life at risk and interfering with the construction work. The second version states that the applicant had been present at the construction site in Gorky Park, had refused to leave despite repeated warnings from police officers, and had struggled when police officers had attempted to escort him out of the area. 50.     On 31 May 2010 the first and second applicants’ lawyer asked the court to admit to the file and examine a video recording of the events of 28   May 2010. 51 .     On 9 June 2010 the District Court held a hearing at which it heard the police officers, who supported the charges and the account of events set out in the offence reports. It also heard the applicants and some witnesses, and examined the video recording submitted by the applicants’ lawyer. 52 .     The first applicant stated that on the morning of 28 May he had been cycling through Gorky Park on his way to work. He had seen many people in the place where trees were being felled and had gone closer. There had been red-and-white tape but he had not realised that that meant that the area in question was a construction site. People with MG badges had tried to push him and others away from the railway crossing and had surrounded them, after which he had been taken away by police officers, who had not addressed any orders to him personally. 53 .     The second applicant stated that on the morning of 28 May he had gone to the park to look at the events surrounding the tree felling. There had been a lot of people there. There had been red-and-white tape but he had not understood that that meant it was a construction site and that his presence there could be dangerous. He described the subsequent events in terms close to those used by the first applicant. 54.     At the close of the hearing the court convicted the first and second applicants as charged and sentenced them to fifteen days’ administrative detention. The court stated that, in view of the examined evidence, including that submitted by the defence, it was convinced that the applicants were guilty as charged. It further stated that the video recording submitted by the applicants’ lawyer had not exculpated them since it had pauses and did not show certain witnesses; therefore, it could not be regarded as a complete record of the events in question. Having examined the circumstances of the case and the character of the applicants, it was also convinced that a punishment less severe than detention would not be adequate. The decision was enforced immediately and the applicants were taken into custody. 55.     The District Court’s judgments were served on the first and second applicants and on 10 June 2010 their lawyer appealed to the Kharkiv Regional Court of Appeal (“the Court of Appeal”). He argued that the District Court had failed to set out its analysis of the evidence which had led it to the conclusion that the applicants were guilty, and had thus failed adequately to reason its judgments. He also argued that under the Code of Administrative Offences administrative detention could only be applied in exceptional cases. The court had failed to explain the exceptional nature of the applicants’ cases which would justify the severity of the punishment imposed. 56.     On 14 June 2010 the District Court notified the lawyer and the applicants (through the detention centre) that their cases were being sent to the Court of Appeal. 57.     According to a note in the domestic files, at 5 p.m. on 17 June 2010 a clerk from the Court of Appeal informed the applicants’ lawyer that court hearings in the first and second applicants’ cases would be held at 2 p.m. and 2.20 p.m. the following day respectively. The same day the lawyer studied the files. 58 .     On 18   June 2010 the Court of Appeal heard the appeals of the first and second applicants in their absence but in the presence of their lawyer, and upheld their conviction. The Court of Appeal found that the case-file material showed that the police officers had acted lawfully in directing the applicants to leave the construction site. The construction work was being conducted on the basis of valid permits and the appellants had failed to show otherwise. At the same time, the court concluded that the District Court had not had sufficient grounds to impose the maximum punishment on the applicants, having failed to sufficiently take into account the circumstances of the cases and the applicants’ personal characteristics. Accordingly, it reduced their sentence to nine days’ detention. 59.     On the same day that decision became final and the first and second applicants were released. (b)     The third and fourth applicants 60.     In the course of the hearing before the District Court the third applicant stated that he had indeed been in Gorky Park, he had not heard any orders to leave the site from the police officers but had heard it from a person in civilian clothing. He and other protesters had been surrounded by a line of individuals in civilian clothing and he had then been dragged from the circle by police officers, who had taken him to the police station. On 14 June 2010 the District Court, having heard the police officers, who supported the charges, the third and fourth applicants and some witnesses, convicted the applicants as charged and sentenced them to fines of 136 and   170 Ukrainian hryvnias (UAH) respectively, at the time the equivalent of about 14 and 17 euros (EUR) respectively (see paragraph 97 below). The applicants appealed. In his appeal the third applicant argued, in particular, that he could not be held liable for failure to comply with the order of the police since he had had the right to be present in the park and the order to leave it had been without legal basis. The fourth applicant also argued that police officers had not issued any order to leave the site. 61.     On 27 July and 11 August 2010 respectively the judgments in those applicants’ cases were upheld by the Court of Appeal. (c)     The fifth applicant 62 .     On 23 June 2010 the District Court, having heard the police officers, the fifth applicant and some witnesses, convicted the fifth applicant as charged and fined him UAH 170, at the time the equivalent of about EUR   17. On 27 July 2010 the Court of Appeal quashed the conviction by a final decision and discontinued the proceedings against the fifth applicant under Article 22 of the Code of Administrative Offences (see paragraph   95 below). It found that the trial court had correctly established the facts concerning the applicant’s guilt, but that its judgment lacked reasoning as to the degree of dangerousness of the applicant’s conduct and his actions and as to his personal characteristics. The Court of Appeal found it established that the applicant’s registered residence was in Kharkiv, that he was employed and that his actions had not caused prejudice to the public interest or to individuals. Therefore, the delinquent element in his conduct had been so insignificant that an oral reprimand would have sufficed, under Article   22 of the Code of Administrative Offences (see paragraph 95 below). The court proceeded to issue the reprimand. (d)     The eighth and tenth applicants 63 .     On 8 June and 12 July 2010 the District Court discontinued proceedings against the eight and tenth applicants. In its judgment concerning the eighth applicant the District Court noted, in particular, that his explanations were consistent with a private video recording of the events submitted by him. There were inconsistencies between various police reports in the case file and a lack of evidence that the officers had duly instructed him to leave. Concerning the tenth applicant, the court likewise pointed to inconsistencies between various police reports in the case file and the lack of evidence that the officers had duly instructed him to leave. 2.     Arrest of the sixth applicant on 6 July 2010 and subsequent proceedings against him 64 .     On 6 July 2010 the sixth applicant was arrested and charged with malicious insubordination in the face of orders given by police officers to leave the construction site. 65 .     On 7 July 2010 the sixth applicant’s case was heard by the District Court. At the hearing the police officers supported the charges. The sixth applicant acknowledged that he had been sitting on the ground in the construction area, protesting against the tree felling, which he considered unlawful. He had refused to comply with the police officers’ requests to leave the site, to the point where they had had to drag him away by the arms with his legs dragging on the ground. He further admitted that he had told the police officers that he would return to the site as soon as he could. Witnesses gave testimony to the same effect, with one adding that the applicant had also tried to break away from the police. 66 .     On the same day the District Court convicted the sixth applicant as charged and sentenced him to ten days’ administrative detention. The court set out the evidence describing the applicant’s conduct. In justifying the sanction, the court stated that it had taken into account the nature of the offence and its specific circumstances, the applicant’s personal characteristics, the fact that he had no employment, the absence of aggravating or attenuating circumstances, and the need to re-educate the offender and to prevent new offences. It considered that the use of sanctions less severe than imprisonment would be insufficient and that administrative detention needed to be imposed, but not for the maximum duration provided for in the law. The applicant started to serve his sentence immediately. 67 .     The applicant’s lawyer lodged an appeal, arguing that the District Court had failed to set out its analysis of the evidence which had led it to the conclusion that the applicant was guilty, and had thus failed adequately to reason its judgment. He also argued that under the Code of Administrative Offences administrative detention could only be applied in exceptional cases (see paragraph 96 below). The District Court had failed to explain the exceptional nature of the applicant’s case which would justify the severity of the punishment imposed. He requested that the District Court’s judgment be quashed and the proceedings in the case discontinued. 68 .     On 15 September 2010, after a hearing at which it heard the sixth applicant and his lawyer and having examined, at the request of the defence, an additional witness, the Court of Appeal upheld the judgment. It recounted the evidence in the file and concluded that the evidence, notably the applicant’s own explanations in court, fully supported the finding of the applicant’s guilt. Contrary to the applicant’s arguments, there was no indication of illegality in the police order to leave the site, in particular because the applicant had not submitted any evidence of any challenge having been lodged concerning the police actions or the Executive Committee’s decision of 19 May 2010 authorising the tree felling. Concerning the sentence, the Court of Appeal was in no positon to reduce it, since neither the applicant nor his lawyer had asked the court to modify the District Court’s judgment in that respect, in the light of any particular circumstances of the case or of the applicant’s personal characteristics, but had rather insisted only on the applicant’s innocence. G.     Events subsequent to the Gorky Park protests 69 .     On 2 June 2010 the ninth applicant informed the chief of the city police that, in protest against the destruction of trees in Gorky Park, the Kharkiv regional council would be picketed daily from 8 a.m. to 4 p.m., and until further notice, by the Zelenyi Front association ( объединение Зеленый фронт ), which the ninth applicant represented. 70 .     On 14 June 2010 the Regional Environmental Protection Inspectorate informed the Municipal Construction Department that it had failed to obtain an environmental impact assessment for the road construction project from the Inspectorate. 71 .     On 17 June 2010 the Executive Committee ordered that 1,006 trees be planted in city parks to compensate for the trees felled in Gorky Park. 72 .     On 2 July 2010 the Regional Environmental Protection Department issued a positive environmental impact assessment ( висновок державної екологічної експертизи ) of the road construction project. H.     Domestic proceedings concerning the events in the park 1.     Investigation by the prosecutor’s office 73.     On various dates the protesters, including some of the applicants, complained to the law-enforcement authorities that they had been assaulted by unidentified loggers and men in black clothing with MG badges, and that the police officers stationed nearby had done nothing to protect them. Those complaints were investigated by the city prosecutor’s office. 74 .     On or around 3 June 2010 two television companies sent to the prosecutor’s office, at its request, their video recordings of the events in the park. 75 .     On 3 June 2010 the assistant prosecutor of Kharkiv questioned Mr   Kl., director of MG, and the heads of four departments of that company about the presence and acts of the guards in the area. They stated, in particular, that there had been nobody from the company present in the area except them. They also stated that there had been a lot of men in black with MG badges, who, nevertheless, were not in fact the company’s employees. On 28 May 2010, after having being rebuked by Mr Kl., those individuals had taken the badges off. 76 .     On 3 June 2010 the chief of the Kharkiv police sent to the city prosecutor a report summarising the law-enforcement measures taken in the course of the protests. The report stated, in particular, that Sh. and K., the heads of the NGOs Pechenigy and My Kharkivyany (see paragraph   31 above), had taken part in the protests. The police chief reported that the police had invited the protesters to submit an official notification of their protest action, as required by Article 39 of the Constitution, but they had responded that they were not organising any assembly or action but were rather present in the park as ordinary citizens. Police officers had been deployed in full force, as envisaged by the law-enforcement plan (see paragraph 24 above), that is twenty-seven officers on site daily from 20   May to 2 June 2010, except for 23, 29 and 30 May 2010 when two officers had been deployed. The construction site had been marked off with tape on 28 May 2010. The “picketing” of the construction site had been discontinued at 9.45 a.m. on 2 June. 77.     The prosecutor’s office questioned a number of police officers and employees of subcontractor companies, and journalists. It also examined video evidence of the events provided by the protesters and solicited information from the local hospital concerning reports of injuries sustained in the course of the events in the park. 78 .     On 17 and 18 June the prosecutor’s office questioned twenty PS employees (see paragraph 25 above). The latter stated that they had not assaulted the protesters, had not deployed any special gear but had indeed pushed the protesters away from the construction site. 79.     On 24 June 2010 the Kharkiv city prosecutor’s office decided not to institute any criminal proceedings. 80.     On 4 August 2010 the Kharkiv regional prosecutor’s office overruled the decision of 24 June 2010 and ordered a further inquiry. 2.     Decision not to institute criminal proceedings of 9 August 2010 and subsequent appeals 81 .     Following an additional round of pre-investigation enquiries,   on 9   August 2010 the prosecutor’s office decided not