CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 mars 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 } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .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 } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } Communicated on 4 March 2021 Published on 22 March 2021   THIRD SECTION Applications nos. 23506/15 and 38211/16 Yana Igorevna TEPLITSKAYA against Russia and Yekaterina Anatolyevna BOGACH against Russia lodged on 25 March 2015 and 19 May 2016 respectively STATEMENT OF FACTS The applicant in the first case, Ms Yana Igorevna Teplitskaya (“first applicant”), is a Russian national, who was born in 1991 and lives in St   Petersburg. The applicant in the second case, Ms Yekaterina Anatolyevna Bogach (“second applicant”), is a Russian national, who was born in 1976 and lives in St Petersburg. The applicants are represented before the Court by Ms K.A. Mikhaylova, a lawyer practising in St Petersburg. The circumstances of the case 1.     The facts of the case, as submitted by the applicants, may be summarised as follows. Public gathering of 12 October 2013 and the applicants’ arrest   2.     On 12 October 2013 an LGBTI public event (Coming Out Day) was planned to take place from 2 p.m. until 3.30 p.m. at the Field of Mars ( Марсово поле ), a large square in the city centre where assemblies were allowed. The event in the form of a gathering was authorised by St   Petersburg authorities. 3.     On 12 October 2013 shortly before 2 p.m. the applicants arrived at the site to take part in the above gathering. However, they could not proceed to the venue because it was blocked by a group of counter-demonstrators. They acted in a very aggressive manner, insulted the participants in the gathering, pushed and punched them. 4.     The police was present at the venue but did not make any efforts to secure safety of participants in the gathering and exercise of their right to freedom of assembly, despite being asked by the organisers to intervene. 5.     At 1.55 p.m. police officers surrounded a group of twelve demonstrators, including the applicants, and ordered them to proceed to a police bus. The applicants were not informed of the reasons for their arrest. Administrative proceedings against the applicants 6.     At 2.30 p.m. the applicants were brought to the police station where the first applicant was detained until 8.30 p.m., the second applicant – until 7.15 p.m. of the same day. According to the first applicant, the reason for her lengthy detention at the police station was the lack of an ID document, even though she presented an electronic copy of her passport. 7.     Police officers started drawing up administrative-arrest, administrative-escort and administrative-offence records in respect of the first applicant at 7.50 p.m. and second applicant at 7.07 p.m. The first document stated that the applicants were arrested at 2 p.m. on 12 October 2013 and taken to the police station to ensure the “prompt and proper examination of the case”. The second document specified that the applicants had been arrested on account of their disorderly conduct in public. 8.     According to the administrative-offence records, the applicants committed an offence punishable under Article 20.1 of the Code of Administrative Offences. It stated that they had used foul language during the public gathering and had ignored repeated warnings to refrain from doing so. 9 .     On 21 November 2013 the Dzerzhinskiy District Court of St   Petersburg terminated the administrative proceedings against the second applicant for lack of evidence of her guilt. 10.     On 18 December 2013 the Dzerzhinskiy District Court terminated the administrative proceedings against the first applicant for lack of elements of an administrative offence in her acts. Civil proceedings against police authorities 11.     On 24 February 2014 the first applicant lodged a civil claim with the Primorskiy District Court of St Petersburg against the St Petersburg and Leningrad Region Main Department of the Russian Ministry of the Interior, the Central District of St Petersburg Department of the Russian Ministry of the Interior, the chief of central police station no. 28 in St Petersburg and two police officers involved in her transfer to the police station and her detention there. She challenged the lawfulness of her arrest and detention at the police station. 12.     On 24 April 2014 the Primorskiy District Court examined the merits of the first applicant’s claim and dismissed it. The court considered that the applicant’s arrest and transfer to the police station had been lawful because she had refused to show her ID documents to the police. 13.     On 3 July 2014 the first applicant appealed against the above decision to the St Petersburg City Court. She alleged that her arrest and transfer to the police station had been unlawful. 14.     On 6 October 2014 the St Petersburg City Court upheld the first ‑ instance judgment on appeal. The court stressed that there had been tension between the participants of the gathering and counter-demonstrators during the event on 12 October 2013 as well as breach of public order. Police officers had been unable to draft the administrative-arrest records on site. The first applicant’s arrest and transfer to the police station had therefore been justified for the purposes of facilitating subsequent administrative proceedings. The fact that these proceedings had later been terminated had not invalidated the lawfulness of the first applicant’s arrest. 15.     The first applicant lodged a cassation appeal challenging the judgment of 24 April 2014 and the appeal decision of 6 October 2014. On 6   February 2015 the judge of the St Petersburg City Court dismissed her cassation appeal. Civil proceedings concerning compensation for non-pecuniary damage 16.     On an unspecified date in 2014 the second applicant brought civil proceedings against the State. She claimed that her arrest at the venue of the gathering and transfer to the police station were unlawful. The second applicant further alleged that the police had failed to ensure public order during the gathering on 12 October 2013 and safety of its participants. She claimed non-pecuniary damage in the amount 225,000 Russian roubles (RUB; approximately 3,100 euros (EUR)). 17.     On 16 December 2014 the Petrogradskiy District Court of St   Petersburg partly granted the claim. Relying on the judgment of 21   November 2013 (see paragraph 9 above), the court found that the second applicant’s arrest and transfer to the police station had been unlawful. It awarded her RUB 2,000 (about EUR 28 at the time). 18.     The second applicant appealed, claiming that the first-instance court ignored the arguments about breach of her right to freedom of peaceful assembly and discrimination as an LGBTI activist. She also claimed that the amount of non-pecuniary damage awarded to her was much lower than that awarded by the Court in similar cases. 19.     On 20 May 2015 the St Petersburg City Court dismissed the appeal. It rejected the defendant’s arguments that the unlawfulness of the police officers’ actions had never been established by a judicial decision delivered in terms of administrative proceedings. 20.     The second applicant lodged a cassation appeal challenging the judgment of 19 December 2014 and the appeal decision of 20 May 2015. On 8   December 2015 the judge of the St Petersburg City Court dismissed her cassation appeal and upheld the lower courts’ findings. 21.     Later the second applicant lodged a cassation appeal with the Supreme Court of Russia. On 22 January 2016 a judge of that court refused to refer the appeal for consideration by the Civil Chamber of the Supreme Court. Relevant domestic law and practice 22.     The relevant provisions of the domestic law as well as judicial practice concerning the administrative arrest and transfer to the police station, judicial review under Chapter 25 of the Code of Civil Procedure, tort actions under the Civil Code and police powers have been summarised in Tsvetkova and Others v. Russia (nos. 54381/08 and 5 others, §§ 60-75, 10   April 2018). COMPLAINTS The applicants complain under Article 5 of the Convention that their arrest, transfer to the police station and subsequent detention there for several hours had been unlawful. They further complain under Article 11 that the authorities failed to enable the public gathering to proceed peacefully and that their interference with the applicants’ freedom of peaceful assembly had been arbitrary. Relying on Article 14 in conjunction with Article 11 of the Convention, the applicants complain that the police arrested only the participants in the LGBTI public event and disregarded the breaches of public order by their opponents.     QUESTIONS TO THE PARTIES 1.     Were each applicant’s arrest, transfer to the police station and subsequent detention there “lawful” and “in accordance with a procedure prescribed by law”, as required by Article 5 § 1 of the Convention (see Butkevich v. Russia , no. 5865/07, §§ 61-65, 13 February 2018)?   2.     Did the applicants’ arrest and detention on 12 October 2013 violate their rights to freedom of assembly, contrary to Article 11 of the Convention (see Kasparov v. Russia , no. 53659/07, §§ 65-69, 11 October 2016)?   3.     Did the domestic authorities comply with their positive obligations under Article   11, taken alone or in conjunction with Article 14 of the Convention, in respect of the public event of 12 October 2013 (see Berkman v. Russia , no. 46712/15, §§ 50-63, 1 December 2020, and Identoba and Others v. Georgia , no. 73235/12, §§ 93-100, 12 May 2015)?