CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 octobre 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sAB51C47C { margin-top:14pt; margin-left:27.94pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.26pt; font-family:Arial; font-weight:bold } .s3E19E58F { margin-top:14pt; margin-left:27.26pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.94pt; font-family:Arial; font-weight:bold } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s76CF415B { page-break-before:always; clear:both } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s2FDFA002 { width:93.14%; border-collapse:collapse } .sD0CC3F5A { width:8.08%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sD39B3CC6 { width:43.7%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sBEF923D3 { width:12.88%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s9A3CA9ED { width:35.34%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s360C4469 { width:8.08%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sE80B6CBA { width:43.7%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s91DB8B55 { width:12.88%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s7C8CF27E { width:35.34%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } Communicated on 12 October 2020 Published on 2 November 2020   THIRD SECTION Application no. 25276/15 Petr Yuryevich VERZILOV and Others against Russia lodged on 7 May 2015 STATEMENT OF FACTS A list of the applicants is set out in Appendix. The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants’ band The applicants are members of a Russian punk band “Pussy Riot”. The group carried out a series of impromptu performances of their songs in various public areas in Moscow, such as a subway station, the roof of a tram, on top of a booth and in a shop window. On 21 February 2012 five members of the band attempted to perform “Punk Prayer – Virgin Mary, Drive Putin Away” from the altar of Moscow’s Christ the Saviour Cathedral. The attempt was unsuccessful as cathedral guards quickly forced the band out. Subsequently, several members of the band were remanded in custody, convicted of hooliganism motivated by religious hatred and sentenced to two years’ imprisonment. In addition, a court ruled that videos of the band’s performances were of an extremist nature and ordered that access to that material be limited (see Mariya Alekhina and Others v.   Russia , no.   38004/12, 17 July 2018). XXII Winter Olympic Games Between 7 and 23 February 2014 the town of Sochi, Krasnodar Region, Russia, hosted the XXII Winter Olympic Games. To maintain public order during the event a formation of Cossacks were employed by the local administration to patrol the streets. The Cossacks were dressed in traditional uniforms and had been armed with whips. Attempt to film a music video in Sochi On 16 February 2014 the applicants arrived in Sochi to film a music video for their new song “Putin Will Teach You to Love the Motherland” under a sign advertising the Olympics. At approximately 4.05 p.m. on 19 February 2014 the applicants started their performance in the presence of their friends and journalists. The female members of the band were dancing in colourful dresses and balaclavas, while the fourth applicant was playing a guitar and the first applicant was filming them. When the first applicant started singing their song, a group of ten men including several uniformed Cossacks approached the band. The group was headed by Mr Vitaliy K. and included Mr Nikolay K., Mr Yuriy S. and Mr   Ivan G. Then Mr Vitaliy K. used pepper spray against the fifth applicant to stop her, however, she continued singing. Mr Yuriy S. attacked the applicants with a whip. He hit the fifth applicant on the leg and the second applicant on her abdomen. Thereafter, five other attackers rushed towards the applicants and violently grabbed each of them, pulling the balaclavas from their heads. The third applicant was screaming with pain when Cossacks pulled her arm. The fifth applicant was thrown to the ground and the first applicant received pepper spray in his eyes. Thereafter, the Cossacks seized the fourth applicant’s guitar and used it to hit him on the head. Eventually the applicants had to leave the location. Recording of the applicants’ injuries Immediately after the incident the applicants applied for medical assistance at the Sochi Town Hospital. Their injuries were recorded in medical logs. The first applicant had a swollen eyelid and a swollen cornea. The second applicant had a bruise on abdomen. The fourth applicant had an open wound on the head. The fifth applicant had a bruise on her leg and a scratch on her arm. Preliminary inquiry On the same day, 19 February 2014 the applicants requested the Sochi police to open a criminal case into the attack. The next day a police officer questioned Mr Yuriy S. The latter explained that having seen the applicants he had recognised them as people who had “desecrated the feelings of the orthodox believers” in Moscow’s Christ the Saviour Cathedral. Having been a passionate believer, he started swearing at them. According to him, he was also outraged by the applicants’ offensive words against the Russian President. Mr Yuriy S. was subsequently found guilty of an administrative offence of minor hooliganism and sentenced to a fine for the sum of 1,000 Russian rubbles (20 EUR). Having questioned the applicants and several of their friends who had been present at the location and having examined video recordings of the incident, the police refused to open a criminal case on 21   March 2014. Specifically, the police held that the case was not the subject of public prosecution because the applicants’ injuries had not been serious enough. Furthermore, the police stated that the Cossacks’ actions could not be legally characterised as the offence of battery (which includes physical pain as one of the elements and did not require the existence of health damage), because a single blow cannot constitute that offence. None of the victims received more than one blow. It was indicated that the applicants could apply to the Justice of the Peace seeking the prosecution of the attackers. On 31   March 2014 the above decision was overruled by the prosecutor’s office, which supervised the investigation, for being premature and ill ‑ founded. In reply, the police issued a new refusal to open a criminal investigation dated 14 April 2014. Following criticism by the prosecutor’s office it was set aside nine days later. Subsequently, the police identified two other Cossacks involved in the attack – Mr Vitaliy K. and Mr   Nikolay   K. and concluded that their actions had not amounted to offences liable to public prosecution. The police issued new refusals to the opening of a criminal case on 19 May, 26 June, 2 August, 10   September, 9   and 31   October 2014 and 22 January 2015. Court proceedings against the investigators In August 2014 the applicants lodged a claim with the Tsentralniy District Court of Sochi complaining about the investigators’ inaction, particularly their failure to identify and question all of the attackers and to legally characterise the investigated offence as criminal hooliganism or robbery. On 24 September 2014 the District Court dismissed the claim. The applicants appealed unsuccessfully against that decision to the Krasnodar Regional Court, which upheld the finding of the first instance court on 7   November 2014. COMPLAINTS The applicants complained under Articles 3 and 10 of the Convention that their artistic performance had been unlawfully interrupted by the Cossacks, who applied physical force to them without any justification and that there had been no effective investigation into that incident. They also complained under Article 13 of the Convention that they did not have at their disposal an effective domestic remedy to complain about the violation of Article 3 of the Convention. QUESTIONS TO THE PARTIES 1.     Has there been a violation of Article 3 of the Convention? In particular, could the Cossacks and other people who applied physical force to the applicants on 19 February 2014 be considered as State agents? Did they act in their public or private capacity? What is the legislative framework governing the application of physical force or special means by them? Does it satisfy the requirements of Article 3 of the Convention? Was the application of force against the applicants justified? Did it amount to treatment prohibited by Article 3 of the Convention (see as far as relevant Bouyid v. Belgium   [GC], no.   23380/09, §§ 100-13, ECHR 2015)? Did the authorities carry out an effective investigation into the incident in compliance with the procedural obligation under Article 3 of the Convention (see   Lyapin   v.   Russia , no.   46956/09, §§   125-40, 24 July 2014), having regard to   the investigating authorities’ repeated refusals to open a criminal case?   2.     Has there been a violation of Article 10 of the Convention on account of the attack on the applicants on 19 February 2014?   3.     Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3, as required by Article 13 of the Convention?   4.     The Government are invited to submit a copy of the case file related to the criminal inquiry (investigation) into the incident of 19 February 2014. The parties are invited to submit a video recording of the incident.     APPENDIX   No. Applicant’s Name Birth year Place of residence 1 Mr P. VERZILOV 1987 Moscow 2 Ms M. ALEKHINA 1988 Moscow 3 Ms L. DZHANYAN 1981 Krasnodar 4 Mr A. NEKRASOV 1976 Krasnodar 5 Ms N. TOLOKONNIKOVA 1989 Norilsk