CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 8 octobre 2019

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RUSSIA   (Application no. 36801/09)                 JUDGMENT             STRASBOURG   8 October 2019       This judgment is final but it may be subject to editorial revision. In the case of Kapustin v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Paulo Pinto de Albuquerque, President,   Helen Keller,   María Elósegui, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 17 September 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 36801/09) 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 a Russian national, Mr Vladimir Yakovlevich Kapustin (“the applicant”), on 21 February 2008. 2.     The applicant, who had been granted legal aid, was represented by Mr   Anton Leonidovich Burkov, a lawyer practising in Yekaterinburg. The Russian Government (“the Government”) were represented by Mr   M.   Galperin, Representative of the Russian Federation to the European Court of Human Rights. 3.     On 30   June 2017 notice of the complaints under Articles 5 § 1 and 10 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. 4.     The Russian Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1945 and lives in Yekaterinburg. The applicant is a lawyer. 6.     On 2 December 2006 a congress of the United Russia Party (“the congress”) was held in Yekaterinburg. At 9.35 a.m. on that date the applicant started a solo demonstration next to the Central Postal Office, holding a placard that stated “United Russia Party – poverty and extinction”. 7.     In his application to the Court the applicant submitted that he had been approached by a senior traffic police officer, T., together with police officers. After the applicant had explained that his solo demonstration had been lawful, Officer T. had “compelled” him to stop the demonstration. The applicant had refused. “Under the threat of placing him in a police vehicle” T. had then taken ( сопроводил ) the applicant to the police station. 8.     In his observations following notification of the present application to the respondent Government, the applicant stated that he had been approached by Officer T. and had been surrounded by other officers. Officer T. had threatened “to forcibly escort him to the police station in a police vehicle”. The applicant had had no choice but to comply with the police officer’s order and to follow him to the police station out of fear of retaliation (by way of prosecution under Article 19.3 of the Code of Administrative Offences (“the CAO”)), for non-compliance with a lawful order by a public official). At the station he had been “forced” to write a statement in order to be allowed to leave. 9.     According to the Government, the police officer “invited” or “asked” the applicant to follow him to the police station “in order to clarify the possibility for him to continue the demonstration”. The applicant agreed. The applicant was not handcuffed or otherwise restrained; his placard was not seized. 10.     The applicant was required to make a written statement concerning his demonstration and placard. He was released one hour later and continued his demonstration. No administrative-escort record or administrative-arrest record was drawn up. The applicant was not charged with any offence. 11.     The applicant then returned to the venue where the congress was taking place. After several minutes there, he went home. 12.     In early December 2006 the applicant sought the institution of criminal proceedings against the arresting officer on account of obstruction of the holding of a meeting, assembly, demonstration, procession, or picketing, or of participation in the aforesaid (Article   149 of the Criminal Code) and abuse of power (Article 286 of the Criminal Code). A refusal to prosecute was issued. The applicant successfully challenged the refusal in court. The pre-investigation inquiry was resumed and then closed on several occasions. On 20 July 2007 an investigator issued a decision refusing to prosecute the police officers. It appears that the applicant was given a copy of that decision in October 2007. The applicant’s position was summarised as follows in the decision: “A traffic police officer asked the applicant why he was protesting. He replied that a solo demonstration was not prohibited. After that the officer returned to his vehicle. In five minutes another officer [T.] approached him and asked what he was doing there. The applicant replied that he was staging a solo demonstration. The officer stated that the applicant was breaching the law. The applicant disagreed. Then the officer asked him to follow him to the police station in a police vehicle. He refused ... and suggested that they would go on foot to the station. The officer agreed. They then went on foot: the officer followed the applicant at some distance; the applicant was not restrained; no physical force was used. They entered the station ... All that time the placard remained in the applicant’s possession ... The on-duty officer told Officer T. to draw up a transfer report [ рапорт о приводе ]. The officer replied that they [the on-duty officers] should do it themselves, and left the station. The on-duty officer told another officer to take the applicant to room no.   307 ... The applicant had to wait there ... Then Officer V. took the applicant’s statement about the demonstration and the placard ... The applicant then returned to the venue [of the congress]. After several minutes there, he went home considering that he had expressed his civic views ...” 13.     Officer T. stated that he had received an order from the town on-duty unit that the applicant be escorted to the police station; he had then asked the applicant to follow him to the station; the applicant had agreed. 14.     The decision of 20 July 2007 reads as follows: “There is no corpus delicti in respect of the offence under Article 286 of the Criminal Code in Officer T.’s actions. The officer considered that the applicant’s actions contained corpus delicti of an administrative offence. Officer T. did not use the measure of administrative escort because under Article 27.2 of the CAO as that measure is defined as the act of compelling a person [to go to a station] for the purposes of compiling an administrative ‑ offence record when it cannot be done on the spot. The applicant autonomously went to the station. No measures of psychological or physical compulsion were used. Thus there had been no “compulsion”. No formal arrest had then been carried out in the police station. Under Article 27.3 of the CAO administrative arrest is defined as a short-term limitation on one’s liberty in a special cell (under the terms of Article 27.6 of the CAO). The applicant was not placed in any such cell. After his identity had been established and a statement had been taken, he left the station without delay and continued his demonstration.” 15.     On 11 December   2007 the Kirovskiy District Court of Yekaterinburg upheld this refusal to prosecute. On 11   January 2008 the Sverdlovsk Regional Court upheld that judgment. The courts concluded that the applicant had voluntarily followed the police officer to the station and, after his release, had continued his demonstration. II.     RELEVANT DOMESTIC LAW AND PRACTICE 16.     For a summary of the relevant domestic law and judicial practice, see Novikova and Others v. Russia (nos. 25501/07 and 4 others, §§ 47-86, 26 April 2016) and Tsvetkova and Others v. Russia (nos. 54381/08 and 5   others, §§   60-75, 10 April 2018). THE LAW I.     ALLEGED VIOLATIONS OF ARTICLES 5 § 1 and 10 OF THE CONVENTION 17.     The applicant complained under Articles 5, 10 and 11 of the Convention of the unlawful and unjustified interruption of his solo demonstration against the ruling party, of his being taken to the police station and then being held there without a written record being drawn up. 18.     The Court considers that the complaints fall to be examined under Article 5 § 1 and Article 10 of the Convention, which read as follows: Article 5 “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: ...” Article 10 “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.” A.     The parties’ submissions 19.     The Government argued that there had been no interference under Article 10 § 1 of the Convention because the applicant had voluntarily followed the police officer to the station and had then been allowed to leave shortly afterwards. He had then continued his demonstration and had completed it as and when he had wanted. The applicant had not been subjected to any formal measure of administrative escort or arrest and had not been charged with any offence. 20.     The applicant argued that he had been approached by the police while he had been holding a demonstration with a political message critical of the ruling party, during the ongoing congress of that party some 850   metres from the congress venue (which was the nearest possible location because the immediate neighbourhood had been closed off by the police). He had been approached less than ten minutes after starting his demonstration. He had been surrounded by a group of police officers who had ordered him to stop the demonstration, and then threatened him with detention. The applicant had had no choice but to comply and follow the police officers to the station, fearing prosecution for non-compliance with an official order (which is an offence under Article 19.3 of the CAO). Having spent one hour at the station, he had no longer been able to continue his demonstration since the congress had been about to finish. The applicant argued that there had been no legal basis for terminating his demonstration. There had been no indication, not even a prima facie indication of any unlawful conduct on his part, and no disturbance relating to traffic or other legitimate interests. His deprivation of liberty had not been justified under any of the subparagraphs of Article 5 § 1 of the Convention. B.     The Court’s assessment 21.     The Court notes that the complaints are not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 22.     The parties disagreed as to whether the applicant was “deprived of [his] liberty” within the meaning of Article 5 § 1 of the Convention. In order to determine whether there has been a deprivation of liberty, the starting ‑ point for the Court’s assessment is the specific situation of the individual concerned, and account must be taken of a range of factors arising in a particular case, such as the type, duration, effects and manner of implementation of the measure in question. The distinction between deprivation of, and a restriction upon, liberty is merely one of degree or intensity and not one of nature or substance (see   Krupko and Others v.   Russia , no. 26587/07, § 34, 26 June 2014). The protection against arbitrary detention enshrined in Article 5 § 1 of the Convention applies to deprivation of liberty of any duration, however short it may have been (ibid., § 35, with further references). 23.     The right to liberty is too important in a “democratic society” within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the sole reason that he or she   has given himself or herself up   to be taken into detention. Detention may violate Article 5 of the Convention even though the person concerned has agreed to it (see   Buzadji v. the Republic of Moldova [GC], no. 23755/07, §   107, 5 July 2016, with further references). 24.     The applicant consistently maintained at the domestic level and before the Court that he did not want to cease his demonstration and did not feel disposed to go to a police station; that he felt intimidated and compelled to comply with the “invitation” to do it, fearing that a refusal to accompany Officer T. to the station might give rise to liability for an offence under Article 19.3 of the CAO. 25.     It is also noted that, as confirmed by Officer T., he had acted under an order requiring that the applicant be “escorted” to the police station. So, his subsequent “invitation” to the applicant to accompany him to the station was part of executing that order. 26.     Furthermore, the Court accepts that although the applicant had a law degree he might have had difficulty to adjust his conduct or make an informed choice of conduct, with regard to the legal context of the situation in which he found himself. The only vague explanation he received at that point was the need to “clarify the possibility for him to continue the demonstration”. In that context, the applicant cannot be reproached for refusing to leave the site of his demonstration, even if temporarily, as turned out to be the fact in this case. 27.     Having regard to the factual elements of the case and the case-law, the Court finds that the applicant was deprived of his liberty within the meaning of Article 5 § 1 of the Convention (compare Venskutė v. Lithuania , no.   10645/08, § 73, 11 December 2012). 28.     The Court must next ascertain whether the deprivation of liberty complied with the requirements of Article   5 § 1. It reiterates in this connection that the list of exceptions to the right to liberty set out in Article   5 § 1 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 or her liberty (see, among many other authorities,   Giulia Manzoni v. Italy , 1 July 1997, § 25, Reports of Judgments and Decisions   1997 ‑ IV). 29.     The deprivation of the applicant’s liberty clearly did not fall under sub-paragraphs (a), (d), (e) and (f) of paragraph 1 of Article 5. Nor was it covered by sub-paragraph (b), since there was no allegation or evidence that he had failed to comply with any lawful court order or to fulfil any obligation prescribed by law. It remains to be determined whether the deprivation of liberty could fall within the ambit of sub-paragraph (c). 30.     The applicant was not formally suspected of or charged with any offence and no criminal or administrative proceedings were instituted against him. When refusing to prosecute Officer T., the investigator supposed that the latter might have had a suspicion that the applicant had committed an (unspecified) offence. However, there was no factual basis for that assumption, including in T.’s own statement as it was presented in the investigator’s decision. The only reason for approaching the applicant and for subsequent actions was the need to “clarify the possibility for him to continue the demonstration”, which did not amount to a “reasonable suspicion” of him committing any specific “offence”. The Court also observes that no administrative-offence record, administrative-escort record or administrative-arrest record were compiled. 31.     It follows from the above that the “deprivation of [the applicant’s] liberty” could not have been effected “for the purpose of bringing [him] before the competent legal authority on reasonable suspicion of having committed an offence” within the meaning of Article 5 § 1 (c) or “to prevent his committing an offence”. 32.     Hence, the deprivation of liberty to which the applicant was subjected did not have any legitimate purpose under Article 5 § 1 and was arbitrary (see, in a similar context, Krupko and Others , cited above, §§   39 ‑ 41). 33.     In the light of the above considerations, the Court concludes that there has been a violation of Article 5 § 1 of the Convention. 34.     For the same reasons, the Court also considers that the interruption of the applicant’s demonstration amounted to an “interference” with his right to freedom of expression. The arrest and detention of protesters may constitute an interference with the right to freedom of expression (see   Dilek   Aslan   v. Turkey , no. 34364/08, § 67, 20 October 2015, and the cases cited therein; see also Nikolayev v. Russia [Committee], no. 61443/13, §   56, 12   February 2019). Nothing suggests that the applicant’s demonstration was unlawful (or at least could be perceived as unlawful) or that there was another good reason for the police’s interference with it. This interference was thus not “necessary in a democratic society” under Article   10 § 2 of the Convention. There has therefore been a violation of that Article too. II.     APPLICATION OF ARTICLE   41 OF THE CONVENTION 35.     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 36.     The applicant claimed 7,500 euros (EUR) in respect of non ‑ pecuniary damage. 37.     The Government contested this claim. 38.     Having regard to the nature and scope of the intertwined violations under Articles 5 and 10 of the Convention, the Court awards the applicant EUR   2,000 in respect of non-pecuniary damage (compare Grigoryev and Igamberdiyeva v. Russia [Committee], no.   10970/12, §   32, 12 February 2019), plus any tax that may be chargeable. B.     Costs and expenses 39.     The applicant also claimed EUR 14,875 for the costs and expenses incurred before the domestic courts and the Court. 40.     The Government contested the claim, indicating that the conditional ‑ fee agreement of 3 December 2006 between the applicant and Mr Burkov was not enforceable under Russian law. 41.     Regard being had to the documents in its possession, the repetitive nature of the legal issues examined in the present case and the legal-aid award of EUR 850 already paid by the Council of Europe, the Court rejects the claim for costs and expenses in the domestic proceedings and, also in so far as the claim is related to the violations found, considers it reasonable to award EUR   650 for the proceedings before the Court. As requested this sum should be paid to the applicant’s representative, Mr   A.   Burkov. C.     Default interest 42.     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, UNANIMOUSLY, 1.     Declares the complaints under Article 5 § 1 and Article 10 of the Convention admissible;   2.     Holds that there has been a violation of Article 5 § 1 of the Convention;   3.     Holds that there has been a violation of Article 10 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)     that the respondent State is to pay Mr A.L.   Burkov, within three months EUR 650 (six hundred and fifty euros), in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (c)     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;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 8 October 2019, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Stephen Phillips   Paulo Pinto de Albuquerque   Registrar   President