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case of Butkevich v/s Russia

    Application No. 5865 of 07

    Decided On, 13 February 2018

    At, European Court of Human Rights

    By, THE HONOURABLE MR. PRESIDENT HELENA JÄDERBLOM
    By, THE HONOURABLE MR. JUSTICE BRANKO LUBARDA
    By, THE HONOURABLE MR. JUSTICE LUIS LÓPEZ GUERRA
    By, THE HONOURABLE MR. JUSTICE HELEN KELLER
    By, THE HONOURABLE MR. JUSTICE DMITRY DEDOV
    By, THE HONOURABLE MR. JUSTICE PERE PASTOR VILANOVA & THE HONOURABLE MR. JUSTICE ALENA POLÁČKOVÁ

    For the Appearing Parties: -------------------



Judgment Text

PROCEDURE

1. The case originated in an application (no. 5865/07) 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 Ukrainian national, Mr Maksim Aleksandrovich Butkevich[1] (-the applicant-), on 17 January 2007.

2. The applicant was represented by Mr D. Makarov, a lawyer practising in Voronezh, Russia. The Russian Government (-the Government-) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that post, Mr M. Galperin.

3. The applicant alleged, in particular, that his administrative arrest and delayed release from detention had been unlawful; that he had not been given a fair trial by an impartial court, and that his freedom of expression had been interfered with in an unlawful and disproportionate manner.

4. On 7 September 2015 the complaints were communicated to the Government under Article 5 1, and Articles 6 and 10 of the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 3 of the Rules of Court.

5. The Government of Ukraine exercised their right, under Article 36 1 of the Convention and Rule 44 of the Rules of Court, to intervene in the present case.

6. The President of the Section granted leave, under Article 36 2 of the Convention and Rule 44 3 of the Rules of Court, to make joint third-party submissions to the Media Legal Defence Initiative, ARTICLE 19: Global Campaign for Free Expression (hereinafter -ARTICLE 19-), and the Mass Media Defence Centre.

7. The Russian Government and the applicant were then allowed to comment on the third parties- submissions.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. The applicant was born in 1977 and lives in Kiev, Ukraine.

A. Background information and the events on 16 July 2006

9. In his application to the Court the applicant stated that at the relevant time he had been employed as a journalist by a Ukrainian television channel. In July 2006 he had volunteered to cover the G8 Summit, which was being held in the St Petersburg region, for Libertarian Information and News Collective (LINC), disseminating press-releases and information on the Internet about protests, connecting journalists and protesters, and providing coverage about the issues raised by activists. In his comments on the third-party submissions before the Court, the applicant added that at the time he had been -involved with- the Independent Media Centre (Indymedia); prior to the G8 summit, he had taken leave from his television assignments and had -focused on media work- in the framework of LINC.

10. According to the applicant, at 8.30 a.m. on 16 July 2006 he happened to -be around- when a so-called -anti-globalism- march was taking place in Nevskiy Avenue in St Petersburg (see also paragraphs 19 and 20 below). He was not wearing any distinctive clothing or insignia to designate him as a journalist. He did not take part in the protest; rather, his actions were limited to observing people and taking photographs, including when the police started to disperse the gathering and to arrest some of the participants. One of the police officers spotted him taking pictures and ordered him to switch off the camera. According to the applicant, he complied and no further order was given to him; he did not show any resistance to the police. In his observations before the Court the applicant said that he had presented his press-card issued by the International Federation of Journalists, and explained his presence at the venue.

11. It follows from the identical reports of two police officers that they approached the applicant and ordered him to cease his -unlawful actions-; despite several warnings, the applicant refused; he was then ordered to follow them to the police vehicle in order to be taken to the police station. Despite several warnings, he refused, grabbed their uniforms, behaved defiantly and shouted. He was then taken to the police vehicle by force.

B. Prosecution for an administrative offence

12. A record of administrative escorting was drawn up under Article 27.2 of the Federal Code of Administrative Offences (hereinafter -the CAO-). The record contained no reasoning.

13. The applicant was then subjected to the procedure of administrative arrest under Article 27.3 of the CAO. The following pre-typed text was underlined in the record: -arrested in order to put an end to the offence, to compile the record of administrative offence, to examine the case and so on, as required by the CAO-. According to the record, the applicant was not subjected to the procedure involving a personal search or an examination of his belongings.

14. According to the Government, when the applicant was arrested and held in the police station, he was in possession of an immigration card indicating -a private visit- to Mr T. residing in Moscow as the aim of his presence in Russia, as well as photocopies of his Ukrainian passport and Shengen visa. The applicant was then interviewed and said that he was a journalist and worked as an editor for the Studio1+1 television channel. The Government pointed out, in this connection, that the administrative case file contained no photocopies of any document confirming the applicant-s status as a professional journalist.

15. Apparently, the applicant managed to contact a lawyer. In the applicant-s submission, the lawyer arrived at the police station at 9.15 a.m. but was not allowed to see him until 2 p.m.

16. At around that time, the applicant was allowed access to the administrative-offence record. The record compiled by Officer F. indicated that the applicant had been arrested because of his -participation in a non-authorised demonstration in Nevskiy Avenue, thus creating a risk of accident threatening his own and others- lives and limb-. The record also stated:

-A police officer approached [the applicant], introduced himself and asked [the applicant] to cease his unlawful actions. Despite repeated and lawful orders to cease unlawful actions, [the applicant] refused. Despite repeated and lawful orders to get into the police vehicle, he also refused while grabbing the police officers- clothes and shouting. Physical force had to be used against him to make him get into the vehicle.-

The record also had the following pre-typed line with added handwritten text:

-Witnesses, attesting witnesses, victims: Go., [address]; So., [address] ...-

17. Several hours later, a new administrative-offence record was compiled by Officer D. The applicant read and signed it at around 7 p.m. According to the record, the applicant was arrested because he had -disobeyed a lawful order from a police officer-. The record also had the following pre-typed line with added handwritten text:

-Witnesses, attesting witnesses, victims: Bo., [address]; Ka., [address] ...-

18. At around 8.30 p.m. the applicant was brought before a justice of the peace. He was accused of disobeying two orders from the police: (i) to cease his participation in the non-authorised demonstration; and (ii) to get, -voluntarily-, into the police vehicle, as stated in the judgment of the justice of the peace.

19. The applicant stated before the court that while having a walk with his friend, Ms K., he had seen people running along Nevskiy Avenue with banners and posters; he had followed them to take some photographs.

20. The applicant-s lawyer pointed out that the second record drawn up by the police was substantially different from the initial one. His efforts to have it admitted to the file, however, were unsuccessful. The judge heard Ms K., who stated that she had been taking a walk together with the applicant at 8.30 a.m. on 16 July 2006 when they had seen people running along Nevskiy Avenue; the applicant had started to follow them; she had lost sight of him and had eventually caught up with him when he had been placed in a police vehicle; at that point, he had not been showing any resistance to the police.

21. According to the applicant, the court refused to hear the officers who had arrested him (-the arresting officers-), the officers who had compiled the initial and the amended administrative-offence records or anyone mentioned in the record (see paragraphs 16-1

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7 above). According to the Government, the applicant made no request to have the arresting officers examined at the trial.

22. On the same evening, the justice of the peace convicted the applicant under Article 19.3 of the CAO and sentenced him to three days of detention, to be counted from 10 a.m. on the same day.

23. The court relied on (i) the (second) administrative-offence record, compiled by the authority initiating prosecution against the applicant, and (ii) the written statements made by the arresting officers prior to the trial.

24. The applicant was held in a police cell for a night and then transferred to a special detention facility to serve the sentence.

25. Although the trial judgment was amenable to appeal within ten days, the applicant chose to lodge an appeal without delay. He also made a written statement, which read:

-Acting as a journalist, on 16 July 2006 I took photographs during a public event. I did not think I was breaching any law. If I did so unknowingly, I am sorry about that. On the same day I was sentenced to three days- detention. I ask the appeal court, when examining my appeal, to grant it as regards my release. I would ask you to examine the appeal in my absence but with the participation of my counsel and a representative from the Ukrainian Consulate.-

26. On 18 July 2006 the applicant was visited by an official from the Ukrainian Consulate and signed a document authorising the Consul to represent him on appeal.

27. The Consul asked the appeal court to examine the appeal without delay.

28. On 18 July 2006 the Kuybyshevskiy District Court of St Petersburg heard the representative, upheld the conviction but reduced the sentence to two days- detention. The appeal court held as follows:

- [The applicant] argued in his statement of appeal that the trial court had not taken into account that as a journalist he had not taken part in the so-called -anti-globalist- protest; the trial court had not examined prosecution witnesses while the judgment was solely based on the written reports made by the police officers who had arrested him ...

The trial judge gave a proper assessment of the officers- reports and testimonies, including the testimony by K. who had been examined at the defendant-s request. It followed from K.-s statement that she had not observed the moment of the defendant-s arrest. This court has no reasons to doubt the officers- reports because they had not been previously acquainted with the defendant and had no reason to commit perjury.-

The appeal court indicated that its decision was -subject to immediate enforcement-.

29. According to the applicant, he was released at 4 p.m. on the same day. Referring to a logbook of detainees (a copy of the relevant extract from which has not been submitted to this Court), the Government submitted that the applicant had been released at 10 a.m. on 18 July 2006.

30. The applicant sought a supervisory review of the judgments before the City Court. He argued, inter alia, that he had been refused an opportunity to examine the arresting officers whose pre-trial reports had constituted the main adverse evidence. On 13 November 2006 the deputy President of the City Court upheld the conviction in a summary manner.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Journalists and public events

31. Section 6 of the Public Events Act of 2004 defines participants in a public event as people who voluntarily take part in the event, and requires them to respect public safety. In 2014 section 6 was amended to specify that journalists should be in possession of a document confirming their -competencies as a journalist-; each journalist should wear a clear distinctive sign, indicating the media outlet that he or she represents.

32. The Mass Media Act of 1991 defines a journalist as a person who (1) is employed by, or has a contractual relationship with, a registered media outlet or who acts on their instructions; and (2) edits, creates and collects information and data for a registered media outlet (section 2). A journalist has the right to be present at gatherings or during demonstrations and to take photographs or make audio and video recordings there (section 47). When on duty, a journalist must show his identity document and documents confirming his status as a journalist (section 49).

B. Administrative escorting and administrative arrest

33. The CAO authorises the competent authorities to compel a person to follow a competent officer, for instance to a police station, for the purposes of compiling an administrative-offence record when it cannot be done on the spot (Articles 27.1 and 27.2 of the CAO on administrative escorting (административное доставление)). The Constitutional Court has held that this measure of compulsion, which amounts to a temporary restriction of a person-s freedom of movement, should be applied only when it is necessary and within short time frames. Referring to the notion of -deprivation of liberty- under Article 5 of the Convention, the Constitutional Court has ruled that the relevant criteria relating to Article 5 of the Convention are -fully applicable- to the measure (Decision no. 149-O-O of 17 January 2012).

34. In exceptional circumstances relating to the need for a proper and expedient examination of an administrative case, the person concerned may be placed under administrative arrest (административное задержание) (Article 27.3 of the CAO). The arrestee should be informed of his rights and obligations; this notification should be mentioned in the arrest record. The duration of such administrative arrest must not normally exceed three hours. Administrative arrest for a longer period, not exceeding forty-eight hours, is permissible only for persons subject to administrative proceedings concerning an offence punishable by administrative detention or offences involving unlawful crossing of the Russian border. This term starts to run as soon as the person has been escorted to the police station, in accordance with Article 27.2 of the Code (Article 27.5 of the Code). The Constitutional Court has ruled that such arrest amounts to -deprivation of liberty- as it is understood by the European Court of Human Rights within the meaning of Article 5 1 (c) of the Convention (Ruling no. 9-P of 16 June 2009).

35. Administrative arrest must be effected in compliance with the goals listed in Article 5 1 (c) of the European Convention, that is it must be effected for the purpose of bringing an individual before the competent legal authority on reasonable suspicion of having committed an offence, or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so (Ruling no. 9-P of 16 June 2009 by the Constitutional Court). Assessment of the lawfulness of an arrest requires an assessment of the essential features affecting such -lawfulness-, including whether the measure was justified (обоснованной) in view of the goals pursued and whether it was necessary and reasonable (разумной) in the specific circumstances of the situation in which it was applied. Administrative arrest is considered lawful if it can be justified on account of the nature of the offence and is necessary for ensuring enforcement of a judgment in an administrative-offence case (decision no. 1049-O of 2 July 2013 by the Constitutional Court). Assessment of the reasons/grounds listed in the administrative-arrest record (as relevant, in respect of a claim for compensation relating to such arrest) includes an assessment of whether the arrest was the only possible measure in respect of the defendant (ibid.).

36. Under the Police Act (Federal Law no. 1036-I of 18 April 1991) the police were empowered to carry out administrative arrest (section 11(1)(5)).

C. Prosecution for an administrative offence

37. The Constitutional Court stated that Articles 118 2 and 123 3 of the Russian Constitution provided that equality of arms and adversarial procedure should apply in court proceedings, including under the CAO (Decision no. 630-O of 23 April 2013).

38. Article 25.1 4 of the CAO provides that anyone prosecuted under the CAO is entitled to study the case-file materials, to make representations, to adduce evidence, to lodge motions and challenges, and to have legal assistance. The Constitutional Court considered that the above guarantees enabled the person concerned to refute, in the course of court proceedings, the information contained in the case file, for instance in the record of administrative offence (протокол об административном правонарушении), thereby exercising his or her right to judicial protection based on the principle of adversarial procedure (Decision no. 925-O-O of 17 June 2010).

39. Article 28.1 of the CAO provides that administrative-offence proceedings may be initiated by a competent public official such as a police officer or a prosecutor.

40. Chapter 25 of the CAO contains provisions regarding -participants in administrative-offence proceedings-, namely the defendant, the victim, their representatives and counsel, witnesses, attesting witnesses, specialists and experts, translators and prosecutors. In particular, Article 25.11 provides a public prosecutor with the power to institute administrative-offence proceedings; to take part in the examination of the case, adduce evidence, lodge motions and issue reports on matters arising during the examination of the case; and to appeal against the decision taken in the case, irrespective of whether he or she participated in the case.

41. The official who compiled the administrative-offence record and the official/non-judicial authority who issued a decision in the case are not considered as -participants- in the proceedings mentioned in Chapter 25 of the CAO. Thus they cannot lodge motions but can be called to attend a hearing in order -to provide clarifications- (Ruling no. 5 of 25 March 2005 by the Plenary Supreme Court of Russia).

42. Concerning the role of a judge in an administrative case, the Constitutional Court stated that in order to comply with the statutory requirement of a -full and objective- examination of the case, a judge has statutory powers to hear participants in the case, to examine evidence, as well as to -carry out other necessary procedural measures aimed at verifying the admissibility and authenticity of evidence, in particular by way of calling proprio motu a witness, including the official who compiled the administrative-offence record or other related record-. This is aimed at further examining the available evidence (the record), rather than at collecting new evidence. The above-mentioned power cannot be considered as incompatible with the judicial function and fully complies with the constitutional principle of adversarial procedure under the CAO (Decision no. 1086-O of 6 July 2010; decision no. 884-O of 29 May 2012; and Decision no. 1817-O of 18 September 2014 and separate opinion by judge Aranovskiy).

43. Article 29.6 of the CAO provides that cases should be examined within fifteen days of the judge-s receiving the administrative-offence record or other material. However, cases punishable by administrative detention must be examined on the same day as the record or other material has been received; where the measure of administrative arrest has been applied, the case must be examined within forty-eight hours of the defendant being apprehended.

D. Proof in a CAO case

44. Article 1.5 of the CAO provides for the presumption of innocence. The official or court dealing with the administrative-offence case should establish whether the person concerned is guilty or innocent (Ruling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia).

45. Article 26.1 of the CAO provides that the following circumstances should be ascertained during examination of a case: the existence of an event that constitutes an administrative offence; the person who committed the unlawful action or inaction that is punishable under the Code; whether the person is guilty of committing the offence; whether there were any mitigating or aggravating circumstances; the nature and amount of damage caused by the offence; whether there are any circumstances barring the examination of the case; other circumstances that may be pertinent for the correct examination of the case; as well as the reasons for the offence and the conditions in which it was committed.

46. Article 26.2 of the CAO defines proof/evidence in a CAO case as any factual data which can serve for ascertaining whether an offence has been committed, whether the defendant is guilty, or other circumstances that may be important for the correct examination of the case. The above-mentioned factual data are determined on the basis of (устанавливается) the record of administrative offence, another record compiled under the CAO, physical evidence, statements from a victim, a witness or an expert, or on the basis of other documents.

47. -Other documents- may be video or audio recordings, or photographs (Jurisprudential Review 1(2014) of 24 December 2014 by the Presidium of the Supreme Court of Russia).

48. Article 26.7 provides that documents may be admitted as evidence if the data contained in them (as certified by the relevant organisations, officials or citizens) are relevant for the case.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 1 OF THE CONVENTION

49. The applicant complained under Article 5 1 of the Convention that his administrative arrest had been unlawful and disproportionate, and that there had been no lawful basis for his detention after 10 a.m. on 18 July 2006.

50. Article 5 1 of the Convention reads as follows:

-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:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...-

A. The parties- submissions

1. The applicant

51. The applicant alleged that there had been no exceptional circumstances, as required under Article 27.3 of the CAO, which might justify his administrative arrest.

52. In his observations before the Court the applicant specified that as well as having to have a formal basis in a legal provision, deprivation of liberty also had to be consistent with the purpose of Article 5 of the Convention to prevent arbitrary or unjustified deprivations of liberty. The taking of the applicant to the police station and his retention there had been arbitrary and effected in bad faith for the following reasons.

First, the legal classification of the charges had been chosen deliberately to justify a prolonged pre-trial detention and to facilitate the police work. It was clearly specified in the pre-trial documents that the applicant had been arrested for participation in a -non-authorised public event-. The related offence falling under Article 20.2 of the CAO could justify the applicant-s retention for no longer than three hours. However, the police had not been able to bring him before a judge promptly enough, so they had charged him with disobedience to the police, an offence punishable under Article 19.3 of the CAO and allowing pre-trial detention for up to forty-eight hours. The applicant had been informed of this legal classification more than five hours after his arrest by way of a new and amended administrative-offence record.

Secondly, the arbitrary nature of the arrest was confirmed by the fact that the charges were not justified by the circumstances but were intended to have a chilling effect on the participants of the public event and on observers. Conduct relating to public events was primarily punishable under Article 20.2 of the CAO, which at the time prescribed more lenient penalties in the way of fines than Article 19.3 and did not provide for the longer period of pre-trial detention or the sentence of detention prescribed by Article 19.3. At the time, the authorities preferred prosecution under Article 19.3 alone or even in combination with Article 20.2 for what were, in substance, the very same factual circumstances.

53. Lastly, the applicant submitted that he had been released at around 4 p.m. on 18 July 2006, which was apparently around the time when the court order had reached the detention facility, while his amended sentence was deemed to have been fully served at 10 a.m. the same day.

2. The Government

54. The Government submitted that the applicant had been arrested following his refusal, despite repeated orders from a police officer, to stop participating in an unlawful public event and his refusal to -accompany voluntarily- a police officer to the police station. Those refusals amounted to disobedience to a lawful order from a police officer, which was an offence under Article 19.3 of the CAO. The commission of that offence by the applicant constituted the basis for his administrative arrest. In addition, the applicant had also/then resisted by grabbing the officers- uniforms and shouting. Thus, the police officers had had to use force and to place him in the police vehicle and to then take him to the station. The purpose of that action had been to facilitate the compiling of documents relating to the offence and for submitting the matter to a court. The taking of the applicant to the police station had been in compliance with sections 10 and 11 of the Police Act of 1991 (see paragraph 36 above).

55. When the applicant was arrested and held at the police station he had been in possession of an immigration card indicating -a private visit- to Mr T. residing in Moscow as the aim of his presence in Russia, as well as photocopies of his Ukrainian passport and a Schengen visa. The applicant had then been interviewed and had said that he was a journalist and was working as an editor for the Studio1+1 television channel; he had not been taking part in the public event in Nevskiy Avenue but had been taking photographs. The Government pointed out, in this connection, that the administrative case file presently contained no photocopies of any document which would confirm the applicant-s status as a professional journalist.

56. The Government explained that administrative escorting and administrative arrest under the Russian CAO were aimed at putting an end to an administrative offence, confirming an individual-s identity, compiling an administrative-offence record if it was not practicable to do so on the spot, as well as at facilitating the timely and correct examination of a case and at facilitating enforcement of the resulting judgment. The administrative arrest of the applicant had pursued the aims listed in Article 5 1 (c) of the Convention, namely bringing him before the competent legal authority on reasonable suspicion of having committed an (administrative) offence. As to the Russian legislation, the aim of administrative arrest was to facilitate the proceedings in an administrative-offence case.

57. The appeal court had reduced the penalty of detention to two days, taking into account the applicant-s passive role in the unlawful public event, as well as his admission of guilt. It appeared from a l