CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 février 2021

.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 } .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 } Communicated on 2 February 2021 Published on 22 February 2021   THIRD SECTION Application no. 7625/19 Dmitriy Nikolayevich KUZNETSOV against Russia lodged on 18 January 2019 STATEMENT OF FACTS 1.     The applicant, Mr Dmitriy Nikolayevich Kuznetsov, is a Russian national, who was born in 1993 and lives in Ulan-Ude in the Republic of Buryatiya. He is represented before the Court by Mr A. Avanesyan, a lawyer practising in Krasnodar. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant is a rap artist performing under the stage name Husky ( Хаски ). 4.     On 21 November 2018 he was due to perform at a club in Krasnodar. The performance was cancelled after local prosecutors warned the venue that his texts called for violence, suicide, extremism and use of drugs. 5.     The concert was moved to another venue which received a similar warning from the prosecutors. When the show was about to start at about 8.30   p.m., the lights went out. The applicant and his fans stepped outside. He climbed on top of a car and started performing a song. 6.     A few minutes later the police pulled him down by the legs, forcefully put him into a car and took him to a police station in Krasnodar. He was charged with a breach of public order committed while resisting police officers, an offence under Article 20.1(2) of the Code of Administrative Offences. According to the charge sheet, his conduct had been “deviant and challenging”, he had not complied with “repeated demands to stop the unlawful conduct”, “rudely rejected the request to proceed to the patrol car” and “caused the police officers to use physical force against him”. The charges were presented to the applicant at 1.40 a.m. on 22 November 2018. 7.     On 22 November 2018 the Pervomayskiy District Court in Krasnodar heard the applicant and three arresting police officers who testified that he had not offered resistance. The judge considered that the special element of resistance to the police was not made out. The applicant’s conduct was characterised as a minor breach of public order under Article 20.1(1) of the Code of Administrative Offences. Noting that a non-custodial sentence “would not attain the objectives of the administrative punishment”, the judge sentenced him to twelve days’ detention, starting from 12.25 a.m. on 22 November 2018 and effective immediately. 8.     Counsel for the applicant introduced an appeal. He relied on the video footage showing the applicant voluntarily complying with the demands by the police, without causing any disturbance or obstructing traffic. In his submission, no breach of public order had been committed, the applicant had not used obscene language, had not accosted others or damaged anyone’s property. He also complained of a belated drawing-up of the record of the arrest and the administrative-office report. 9.     On 26 December 2018 the Krasnodar Regional Court rejected the appeal in a summary fashion. Domestic law 10.     Article 20.1(1) of the Code of Administrative Offences defines a minor breach of public order ( мелкое хулиганство ) as “a breach of public order showing flagrant disrespect for society accompanied by speaking obscenities in public places, abusively harassing others or destroying or damaging the property of others”. It is punishable with an administrative fine of between 500 and 1,000 Russian roubles or up to fifteen days’ administrative detention. 11.     Articles 27.2 to 27.5 of the Code of Administrative Offences concerning escorting by the police and administrative detention are quoted in Frumkin v.   Russia , no.   74568/12, §   79, 5 January 2016. COMPLAINTS 12.     The applicant complains under Article 5 of the Convention that his detention at the police station from 8.40 p.m. on 21 November 2018 to 9   p.m. on 22 November 2018 was unlawful for several reasons. The escorting record had not been drawn up until 10.40 p.m. on 21 November 2018; it was not shown that it was impossible to prepare the administrative-offence report on the spot; the three-hour time-limit was exceeded by many hours. 13.     The applicant complains under Article 6 § 1 of the Convention that, in the absence of a prosecutor, the trial court assumed the role of the prosecution. 14.     The applicant complains under Article 10 of the Convention, taken alone and in conjunction with Article 14, about a restriction on his freedom of artistic expression and discrimination on account of his political opinion. He submits that his performance has been cancelled and that he has been given a custodial sentence because of the politically controversial nature of his songs. QUESTIONS TO THE PARTIES 1.     Were the applicant’s arrest and detention effected “in accordance with a procedure prescribed by law” as required by Article 5 § 1 of the Convention? In particular, (a)     In so far as Article 27.2 of the Code of Administrative Offences allows the suspected offender to be escorted to a police station only if an administrative-offence report cannot be drawn up at the place where the offence was discovered, has it been shown that it was impossible, in the circumstances of the case, to draw up the report on the spot (see Lashmankin and Others v.   Russia , nos. 57818/09 and 14 others, § 489, 7   February 2017, and Navalnyy and Yashin v. Russia , no. 76204/11, §§ 68 and 93, 4 December 2014)? (b)     Once the administrative-report had been drawn up, were there any “exceptional circumstances” within the meaning of Article 27.3(1) of the Code of Administrative Offences which could have justified the applicant’s continued detention (see Frumkin v.   Russia , no.   74568/12, §   150, 5 January 2016)?   2.     Has there been a violation of the impartiality requirement under Article 6 § 1 of the Convention on account of the absence of the prosecuting party from the proceedings (see Karelin v.   Russia , no.   926/08, §   58-84, 20   September 2016)?   3.     Has there been a violation of Article 10 of the Convention on account of the applicant’s conviction? In particular, could the applicant reasonably foresee that he could be held liable for the offence under Article 20.1(1) of the Code of Administrative Offence? Was the applicant’s conviction necessary in a democratic society?   4.     Having regard to the circumstances of the case as a whole, including the events immediately preceding the applicant’s arrest, has it been established that the applicant was a victim of discrimination on account of his political opinions, in breach of Article 14 of the Convention, taken in conjunction with Article 10?