CEDH · CASELAW;CLIN;ENG — 19 novembre 2019

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Russia and Ukraine and Udaltsov v. Russia - 75734/12, 2695/15 and 55325/15 Judgment 19.11.2019 [Section III] Article 11 Article 11-1 Freedom of peaceful assembly Conviction for organising “mass disorder” following clashes during demonstration, without sufficient scrutiny of event organiser’s own acts and intentions: violation Article 1 Jurisdiction of States Jurisdiction in a case of alleged cross-border violations by alleged State agents operating on another State’s territory Article 3 Effective investigation Positive obligations Respondent States’ failure to investigate allegations of cross-border abduction and ill-treatment involving State agents: violation Article 6 Criminal proceedings Article 6-1 Fair hearing Co-defendant admitted as witness against the accused after conviction in disjoined plea-bargaining procedure without prior adversarial scrutiny: violation Article 6-3-b Adequate facilities Unnecessary confinement of accused in glass cabin at court hearings that lasted a number of months: violation   Applicant’s ineffective participation in his trial due to excessively intensive court hearing schedule coupled with lengthy prison transfers: violation Article 5 Article 5-1 Security of person Respondent States’ failure to investigate allegations of cross-border abduction and ill-treatment involving State agents: violation Facts – This case relates to the halting by police of a political rally held by opposition activists which was organised by the second applicant and which was staged in Moscow, in Bolotnaya Square on 6 May 2012 (see Frumkin v. Russia , 74568/12, 5   January 2016, Information Note 192 ). Following the events, both applicants were subsequently convicted for their involvement in organising mass disorder. The first applicant maintained that he was later abducted in Kyiv in October 2012 and ill-treated by unidentified individuals (allegedly Russian State agents acting with the tacit agreement of the Ukrainian authorities). He was then forcibly taken away to Russia where he was detained before being brought before an investigation committee. Law Articles 3 and 5 (procedural aspects) (first applicant) (a)     Jurisdiction of the respondent States (Article 1) – Both States had “jurisdiction” over the facts which had occurred on their respective territories. As regards the alleged involvement of Russian State agents in Ukraine, the jurisdictional link with Russia was established on the basis of its authority and control allegedly exercised through its agents operating abroad. (b)     Merits   – Since there was no evidence that the abductors had acted on behalf of the Russian authorities, or that the Ukrainian authorities had actively or passively participated in the abduction, there were no grounds to find either respondent State in breach of the substantive guarantees of Articles 3 and 5. On the other hand, the applicant had an arguable claim of abduction and ill-treatment, which he put forward before the authorities of both respondent States. The essential facts underlying the first applicant’s complaint of abduction were not contested by either of the respondent Governments. However, neither respondent State had carried out an effective investigation. (i)     Ukraine – The authorities had initially refused to open a criminal investigation after a cursory inquiry which (as they implicitly acknowledged) had not constituted an effective investigation. While they subsequently undertook to carry one out, the progress of those proceedings had hitherto remained unknown. (ii)     Russia – Despite the absence of injuries, the first applicant was able to present eyewitness statements to make a prima facie case of abduction, possibly associated with inhuman or degrading treatment during his transfer to Russia; this fact placed the Russian authorities under an obligation to investigate the abduction. If they could not take any practical steps towards an inquiry for lack of territorial jurisdiction, it was their obligation to seek the assistance of the Ukrainian authorities. This had not been carried out. In any event, the order for the first applicant’s abduction had allegedly been given in Russia, and his deprivation of liberty and ill-treatment had allegedly continued on Russian territory. There had thus been a violation of the procedural guarantees of Articles   3 and 5 as neither respondent State had taken the necessary steps to verify the first applicant’s plausible allegations (to the extent these fell within their respective jurisdiction). Conclusion : violation (unanimously) by both respondent States. Article 6 (Russia only) (a)     Article 6 § 1 as regards the admission, as a “witness”, of a former co-defendant convicted after plea bargaining (both applicants) – The decision to disjoin the case against a former co-defendant (L.) had not involved an assessment of the countervailing interests or consultation of the applicants with a view to giving them an opportunity to object to the cases being separated. His credibility as a witness in the applicants’ case had been compromised, given that he had been compelled to maintain the statements he had made in order to negotiate the reduction of his sentence while not being bound by the witness oath. Moreover, the domestic law expressly conferred res judicata on judgments even if issued in accelerated proceedings. Both L. and the domestic courts thus had an obvious incentive to remain concordant with the findings made in that context, despite their lack of adversarial scrutiny. Conclusion : violation (unanimously). (b)     Article 6 §§ 1 and 3 (b) and (c), as regards the confinement in a glass cabin (first applicant) – The use of this security installation had not been warranted by any specific security risks or courtroom order issues but had been applied to the first applicant automatically because he was in pre-trial detention, and without any compensatory measures. Such circumstances having prevailed for over five months during the trial at first instance, they amounted to a disproportionate restriction of the defendants’ rights to participate effectively in the proceedings and to receive practical and effective legal assistance, and inevitably had an adverse effect on the fairness of the proceedings as a whole. Conclusion : violation (unanimously). (c)     Article 6 §§ 1 and 3 (b), as regards the schedule for the court hearings (first applicant) – The cumulative effect of exhaustion caused by lengthy prison transfers – in poor conditions and with less than eight hours of rest, repeated for four days a week over a period of more than four months – must have seriously undermined the first applicant’s ability to follow the proceedings, make submissions, take notes and instruct his lawyers. Not enough consideration had been given to the applicant’s requests for a hearing schedule that might have been less intensive. Consequently, the first applicant had not been afforded adequate facilities for the preparation of his defence, which had undermined the requirements of a fair trial and equality of arms. Conclusion : violation (unanimously). Article 11 (Russia only) (a)     Applicability – Article 11 did not cover demonstrations where the organisers and participants had intended to cause violence. (i)     First applicant – The first applicant had led a number of individuals to break through the police cordon; witnesses confirmed that he had intended to do so. Given that the breaking of the cordon had led to an escalation of violence at a crucial moment and triggered the onset of clashes, the applicant’s deliberate acts which had contributed to its occurrence fell outside the notion of “peaceful assembly”. Conclusion : Article 11 not applicable. (ii)     Second applicant – The acts imputed to the second applicant (namely, the calling-out to the protesters to begin an “indefinite protest action” at the location where the meeting was supposed to be held, and the setting-up of an illegal campsite) had not shown any intention to use violence. None of the witnesses at the trial stated that he had taken part in any violent acts or encouraged them; on the contrary, he had insisted on a “strictly peaceful” form of conduct. Conclusion : Article 11 applicable. (b)     Merits (proportionality) – The second applicant’s conviction was based on the finding that, as one of the organisers of the event, he was responsible for the stand-off between the protesters and the police and that, moreover, the stand-off had been part of the plan to take the protest outside the allocated perimeter and to set up a long-term protest campsite in the park. The Court found that the sanction imposed on him had been disproportionate in view of the following: –   the domestic judgments had left open the question whether the “political instability” allegedly promoted by the second applicant carried an element of violence in the sense of riots or mass disorder, as opposed to advocating political change by peaceful means; –   since there was no evidence that some protesters had been incited by him to commit violent acts, the mere fact that he had been one of the organisers of the event was not a sufficient reason to have held him responsible for the conduct of the attendees; besides, the judgments had failed to assess the extent to which the authorities themselves had contributed to the deterioration of the assembly’s peaceful character; –   the sentence had been severe (more than four years’ imprisonment); and its chilling effect had been further amplified not only by the fact that it had targeted a well-known public figure, but also by the large-scale proceedings, which had attracted widespread media coverage. Conclusion : violation (unanimously) as regards the second applicant. Other findings on the merits, as to Russia (unanimously): violation of Article 5 § 3 as regards both applicants (pre-trial detention, house arrest); no violation of Article 5 § 1 as regards the second applicant (house arrest); violation of Article 8 as regards the first applicant (transfer of the first applicant to a remote prison and refusal to allow him to visit his ill mother or to attend her funeral later); violation of Article 1 of Protocol No.   1 as regards the second applicant (seizure of assets). Article 41 (non-pecuniary damage) (i)     As to the violations of Articles 3, 5 and 8 of the Convention and Article   1 of Protocol No.   1: – to be paid by Ukraine: EUR 4,000 to the first applicant; – to be paid by Russia: EUR 11,000 to the first applicant, and EUR 9,000 to the second applicant. (ii)     As to the violations of Articles 6 and 11: no additional award necessary; the domestic law provided for the possibility of a reopening of the proceedings.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes