Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia
Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia
JUDGMENT
STRASBOURG
19 November 2019
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 1
PROCEDURE
1. The case originated in one application against the Russian Federation
and Ukraine (no. 75734/12) and two applications against the Russian
Federation (nos. 2695/15 and 55325/15) lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by two Russian nationals,
Mr Leonid Razvozzhayev (“the first applicant”) and Mr Sergey Udaltsov
(“the second applicant”; collectively “the applicants”), on 28 November
2012, 13 January 2015 and 10 September 2015 respectively.
2. The applicants were represented by Mr D.V. Agranovskiy, a lawyer
practising in Elektrostal. The second applicant was also represented by
Ms V. Volkova, a lawyer practising in Elektrostal. The Russian Government
were represented initially by Mr G. Matyushkin, the Representative of the
Russian Federation to the European Court of Human Rights, and then by his
successor in that office, Mr M. Galperin. The Ukrainian Government were
represented by their then Acting Agent, Ms O. Davydchuk
3. The first applicant alleged, in particular, that Russia and Ukraine had
failed to carry out an effective investigation into his allegations of unlawful
deprivation of liberty and inhuman and degrading treatment. In respect of
Russia the applicants complained that insufficient reasons had been given
for both applicants’ pre-trial detention, that they had not had a fair hearing
in their criminal case, that there had been a breach of their right to freedom
of assembly, that there had been a breach of the first applicant’s right to
family life and that the attachment of the second applicant’s property had
been unlawful.
2 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
4. Between 7 July 2014 and 27 April 2016 the Russian and Ukrainian
Governments were given notice of the applications, which were granted
priority under Rule 41 of the Rules of Court.
THE FACTS
5. The applicants were born in 1973 and 1977 respectively and live in
Moscow.
6. The first applicant is a political activist. At the time of events he
worked as an assistant to a State Duma Deputy. The second applicant is a
political activist and a member of an opposition movement, “Levyy Front”.
In 2012 he organised a political rally held on 6 May 2012 at Bolotnaya
Square in Moscow, following which both applicants were convicted of
conspiracy to organise mass disorder and were sentenced to four and a half
years’ imprisonment.
7. The facts of the case, as submitted by the parties, may be summarised
as follows.
among the protesters they attempted to pull them back. The police applied
combat techniques and used truncheons.
29. At 6.20 p.m. the second applicant climbed onto the stage at the
opposite end of the square to address the meeting. At that time many people
were assembled in front of the stage, but, as it turned out, the sound
equipment had been disconnected. The second applicant took a loudspeaker
and shouted:
“Dear friends! Unfortunately we have no proper sound, but we will carry on our
action, we are not going away because our comrades have been arrested, because
tomorrow is the coronation of an illegitimate president. We shall begin an indefinite
protest action. You agree? We shall not leave until our comrades are released, until
the inauguration is cancelled and until we are given airtime on the central television
channels. You agree? We are power here! Dear friends, [if] we came out in December
[2011] and in March [2012], it was not to put up with the stolen elections, ... it was
not to see the chief crook and thief on the throne. Today we have no choice – stay
here or give the country to crooks and thieves for another six years. I consider that we
shall not leave today. We shall not leave!”
30. At this point, at 6.21 p.m., several police officers arrested the second
applicant and took him away. Mr Navalnyy and Mr Nemtsov were also
arrested as they were attempting to address people from the stage.
31. Meanwhile, at the Malyy Kamenny bridge the police continued
dividing the crowd and began pushing some sections away from the venue.
Through the loudspeakers they requested the participants to leave for the
metro station. The dispersal continued for at least another hour until the
venue was fully cleared of all protesters.
32. On 6 May 2012 the first deputy head of the Moscow Department of
Regional Security drew up a report summarising the security measures
taken on that day in Moscow and stating that 656 protesters had been
detained. The report stated that it was the second applicant, among others,
who had provoked the stand-off and the breaking of the police cordon and
that he had called on the demonstrators to stay at the meeting venue to take
part in an indefinite protest action.
33. On the same day the Investigation Committee of the Russian
Federation opened a criminal investigation into the alleged mass disorder
and violent acts against the police (offences under Article 212 § 2 and
Article 318 § 1 of the Criminal Code).
34. On 28 May 2012 an investigation was also launched into the
criminal offence of organising mass disorder (offences under Article 212
§ 1 of the Criminal Code). The two criminal cases were joined on the same
day.
35. On 5 October 2012 the NTV television channel showed a film,
Anatomy of Protest, Part Two, which featured the applicants and their
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 7
fellow activist Mr L., discussing with Mr T. the plans for opposition events
and financing options involving sponsorship by Mr T.
1. Events in Kyiv
53. On 14 October 2012 the first applicant left Moscow. On 16 October
2012 he entered Ukraine and arrived in Kyiv.
54. On 19 October 2012 at about 10 a.m. the first applicant arrived at the
Kyiv office of HIAS, the partner organisation of the United Nations High
10 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
96. On 4 February 2014 the Moscow City Court examined the request
for a further extension of the term of the first applicant’s detention. The first
applicant reiterated the request for an alternative preventive measure,
including a fresh personal guarantee from a State Duma deputy, and referred
to family and health grounds among the reasons for his request for release.
The court rejected the first applicant’s requests, reiterated the reasons relied
on in the previous detention orders and extended the term of the first
applicant’s detention until 10 June 2014.
97. On 6 February 2014 the Moscow City Court concluded the
preliminary hearing and scheduled the main hearing for 18 February 2014.
98. On 28 February 2014 the same court upheld the extension order of
4 February 2014 in respect of the first applicant.
99. On 3 March 2014 the first applicant filed an application for release
and an alternative preventive measure pending trial. He complained in
particular of inhuman and degrading conditions of detention, of the
deterioration of his health and of his resulting incapacity to effectively
defend himself at the hearings. On 4 March 2014 the Moscow City Court
rejected his application. It found, in particular, that the first applicant did not
have any illness that was incompatible with pre-trial detention. As regards
the schedule of the hearings, it established that the first applicant arrived at
the detention facility between 8.40 p.m. and 10.15 p.m. on the days of the
court hearings and that his transfer to and from the courthouse had complied
with the regulations, and noted that he had not previously complained to the
courts about the conditions of his detention and transfers. It found that the
hearings had been scheduled with due regard for the requirement to conduct
criminal proceedings within a reasonable time and without excessive
intensity.
100. On 7 May 2014 the Solomenskiy District Prosecutor’s Office
wrote, in reply to repeated enquiries from the first applicant, that there were
no grounds to revise the decision of 7 December 2012 dispensing with a
criminal investigation into his alleged abduction.
101. On 6 June 2014 the first applicant’s detention was extended by the
trial court until 10 September 2014 for the same reasons as cited on
4 February 2014; that decision was upheld on 15 July 2014.
dentist; on two of these occasions the applicant had hypertension, and once
the blood pressure was noted as 120/80.
103. On 12 January 2013, upon his transfer to the detention facility in
Irkutsk, the first applicant was placed in a prison hospital. The first medical
examination found a haematoma on his right shoulder; blood pressure of
130/80 was noted, but the overall conclusion was that he was in good
health. On 14 January 2013 he was seen by a doctor because of back and
buttock pain; blood pressure of 140/80 was noted. On the following day he
was seen by a neurologist, who diagnosed him with lumbago and prescribed
treatment; blood pressure of 140/80 was noted. In the next three days he had
seven more medical consultations, including with a GP, a neurologist, a
psychiatrist and a surgeon, and a visit to a nurse. Blood pressure of 140/90
was noted once in this period. On 22 January 2013 he had a scan of the
abdomen; his blood pressure on that day was recorded as 130/80. On
18 February 2013 he was discharged from hospital.
104. In the course of 2013 the first applicant had at least sixteen medical
consultations, an X-ray, two electrocardiograms and a blood test; treatment
was prescribed for a bronchial infection, back pain and hypertension; the
records of his blood pressure, which was measured in addition to the
consultations, varied between 120/80 and 140/90.
105. For 2014 the first applicant’s medical record contains notes on at
least three consultations, two blood tests and an electrocardiogram.
106. On 1 October 2014 he had a heart seizure and was transferred to the
SIZO-1 prison hospital (“Matrosskaya Tishina”), where he was treated until
14 November 2014. During that period, on 12 November 2014, the first
applicant underwent coronary angiography. He was discharged with a
diagnosis of third-degree hypertension and was ordered to limit his physical
effort.
107. Throughout his detention the first applicant received medication
prescribed at the prison hospitals and provided, at his request, by his family.
On a number of occasions he was visited by members of the public
commission for the monitoring of detention facilities, who noted, on
unidentified dates in August and September 2014, his request to monitor his
blood pressure and his complaints about the excessively intensive court
hearing schedule.
108. The first applicant raised the state of his health in his requests for
release from detention, but the domestic courts found that there was no
evidence that the applicant’s health was in such a state that it was
incompatible with further detention.
Court for trial. On 20 December 2013 the court listed the trial for
26 December 2013 (see paragraph 93 above). On the latter date the court
returned the case to the prosecutor’s office for rectification of a number of
procedural flaws (see paragraph 94).
110. On 16 January 2014 the case was again submitted to the Moscow
City Court (see paragraph 95). According to the applicants, the resubmitted
case file did not contain the list of defence witnesses that had previously
been annexed to it.
111. On 4 February 2014 the Moscow City Court extended the second
applicant’s house arrest until 10 June 2014, with reference to the same
grounds as set out in the original order, which in its view remained
pertinent. It dismissed a request by the applicant for release on bail and
refused to relax the restrictions imposed in connection with his house arrest.
It found that despite the completion of the investigation the risk of the
second applicant’s absconding or otherwise obstructing the course of justice
could not be ruled out (see paragraph 96 above).
112. On 6 February 2014 the Moscow City Court listed the trial for
18 February 2014 (see paragraph 97). From that date and until 24 July 2014
the trial took place in hearing room no. 635 at the Moscow City Court. The
hearings were held on four days each week and (including time spent
escorting the first applicant to the courthouse) lasted for over eight hours
every day. The applicant requested a less intensive hearing schedule, but the
court refused to amend it. That decision was upheld by the Moscow City
Court on 28 February 2014.
113. On 18 February 2014 the first applicant complained of lack of sleep
caused by the excessively frequent court hearings and the lengthy transfer
from the detention facility to the court and back. His complaints were
dismissed.
114. During the trial the applicants asked to be able to call and examine
a number of defence witnesses, but the request in respect of five of them
was refused on the grounds that those people had previously participated in
the same proceedings, although the applicants disputed this. The applicants’
request to be permitted to examine ten defendants in related criminal cases,
including the first “Bolotnaya” case, was dismissed on the grounds that they
were interested parties.
115. On 21 February 2014, in parallel criminal proceedings, the
Zamoskvoretskiy District Court of Moscow ruled against eight persons who
had taken part in clashes with the police during the public assembly of
6 May 2012 (the first “Bolotnaya” case). It found them guilty of
participation in mass disorder and of committing violent acts against police
officers. They received prison sentences of between two and a half and four
years; one person had his sentence suspended. Three of their co-defendants
had previously been pardoned under the Amnesty Act and one had had his
case disjoined from the main proceedings.
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 19
137. On 24 July 2014 the Moscow City Court found the applicants
guilty of organising mass disorder on 6 May 2012. The judgment read as
follows, in so far as relevant:
“The witness Mr Deynichenko testified that on 4 May 2012 he had taken part in a
working meeting at the Moscow Department of Regional Security... as a follow-up to
the meeting a draft security plan was prepared, and all necessary agreements were
reached with the organisers concerning the order of the march and meeting, the
movement of the column, the stage set-up, access to the meeting venue, barriers and
the exit from the stage; the [organisers] had agreed on that. The question of using the
park at Bolotnaya Square was not raised because the declared number of participants
was 5,000, whereas over 20,000 people could be accommodated in the open area of
the square and the embankment, and [the organisers] had known that in advance. It
had been discussed with them how the cordon would be placed from Malyy
Kamennyy bridge to the park at Bolotnaya Square, so the organisers knew about the
cordon in advance. The placement of the cordon was indicated in the [security plan].
This document was for internal use and access to it was only given to the police; the
location of the forces could be changed in an emergency by the operational
headquarters. The organisers did not insist on an on-the-spot visit; such visits are held
at the initiative of the organisers, which had not been requested because they had
known the route ... and the meeting venue ... [The witness Mr Deynichenko] had
known that at the beginning of the march the event organisers, including Mr Udaltsov,
had discussed between them that they were not going to turn towards the meeting
venue but would stop and try to break the cordon to proceed to Bolshoy Kamennyy
bridge.
...
The witness N. Sharapov testified that Mr Udaltsov had known the route of the
march and had not raised a question about opening up the park at Bolotnaya Square.
Moreover, the park was a nature reserve with narrow lanes ... the park had been
opened up previously [for a public event], as an exception, on only one occasion, on
4 February 2012, but then it was winter, it was snowing and the declared number of
participants had significantly exceeded 5,000. No such exception was made for
6 May 2012.
... according to the statement of the Moscow City Security Department, ... the
meeting venue at Bolotnaya embankment could accommodate 26,660 people ...
The fact that no map of the assembly route or the placement of the police had been
produced at the working meeting of 4 May 2012, that these questions had not been
expressly discussed, ... that the event organisers present at the working meeting had
not been shown any maps, was confirmed by them.
... the court concludes that no official map had been adopted with the organisers and,
in the court’s opinion, [the published map] had been based on Mr Udaltsov’s own
interview with journalists ...
Therefore the map presented by the defence has no official character, its provenance
is unknown and therefore unreliable and it does not reflect the true route of the
demonstration and the placement of the police forces.
... the witness Mr Makhonin ... testified that on 5 May 2012 he received the [security
plan] ... Before the start of the march he personally met the event organisers
Ms Mityushkina, Mr Udaltsov [and] Mr Davidis and in the presence of the press and
with the use of video recordings explained to them the order of the meeting and the
22 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
march, warned against a breach of public order during the conduct of the event; and
stressed the need to inform him personally about any possible provocations by calling
the telephone number known to the organisers. He asked Mr Udaltsov about the
intention to proceed towards the Kremlin and to cause mass disorder because the
police had received information about it from undercover sources; Mr Udaltsov had
assured him that there would be no breaches of order at the event and that they had no
intention to move towards the Kremlin ... He (Mr Makhonin) arrived at Bolotnaya
Square after the mass disorder had already begun ... After the mass disorder began he
tried calling Mr Udaltsov on the phone but there was no reply. Mr Udaltsov did not
call him ... Other event organisers had not asked him to move the cordon. Given the
circumstances, Ms Mityushkina, at his request, announced the end of the meeting, and
the police opened additional exits for those willing to leave. In addition to that, the
police repeated through a loudspeaker the announcement about the end of the meeting
...
... the witness Mr Zdorenko ... testified that ... following information received [from
undercover sources] about the possible setting up of a camp site, at about 9 p.m. on
5 May 2012 he had arrived at Bolotnaya Square and organised a search of the area
including the park. The park was cordoned off and guarded ... if necessary, by a
decision of the operational headquarters, the venue allocated for the meeting could be
significantly extended at the expense of the park [at Bolotnaya Square]. However,
there was no need for that given that there were no more than 2,500-3,000 persons on
Bolotnaya Square ... [others being stopped at] Malyy Kamennyy bridge.
...
The witness A. Zharkov testified that ... while the stage was being set up he had seen
an unknown man smuggling four camping tents in rubbish bins.
...
The witness M. Volondina testified that ... before the beginning of the march, police
information had come through from undercover sources that the event organisers
intended to encircle the Kremlin holding hands to prevent the inauguration of the
Russian President.
The witness M. Zubarev testified that ... he had been [officially] filming ... while
Police Officer Makhonin ... explained the order ... and warned the organisers ... and
asked Mr Udaltsov to inform him of any possible provocations. Mr Udaltsov stated
that they would act lawfully and that he had requested the police to stop any unwanted
persons from joining the public event ...
The witness Y. Vanyukhin testified that on 6 May 2012 ... at about 6 p.m.
Mr Udaltsov, while on the way to the stage, told people around him that they were
going to set up a campsite ...
... the witness Ms Mirza testified that ... Police Officer Biryukov had asked her and
[the Ombudsman] to come to Malyy Kamennyy bridge where some of the protesters,
including Mr Nemtsov and Mr Udaltsov, had not turned right towards the stage but
had gone straight to the cordon, where they had begun a sit-in protest on the pretext
that access to the park at Bolotnaya Square had been closed and cordoned off ... While
[the Ombudsman] was talking to those sitting on the ground they remained silent and
did not reply but would not stand up.
The witness Mr Babushkin testified that ... after the first confrontations between the
protesters and the police had begun, the latter announced through a loudspeaker that
the meeting was cancelled and invited the citizens to leave.
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 23
The witness Mr Ponomarev testified that ... the police cordon had been placed
differently from [the cordon placed for] a similar march on 4 February 2012 ... he
proposed to Mr Udaltsov that the cordon be pushed back so that the police would go
back a few steps and widen access to Bolotnaya Square, and the latter replied that he
would figure it out when they reached the cordon ... he knew that Mr G. Gudkov was
negotiating with the police about moving the cordon, which had now been reinforced
by the riot police.
... the witnesses Mr Yashin and Mr Nemtsov testified that ... during the steering
committee meeting the question of setting up tents during the public event had not
been discussed ... while [Mr G. Gudkov] and [Mr D. Gudkov] were negotiating with
the police ... the crowd built up [and] suddenly the police began moving forward, the
protesters resisted and the cordon broke ...
The witness Mr G. Gudkov [deputy of the State Duma] testified that ... at the request
of the organisers, who had told him that they would not go anywhere and would
remain sitting until the police moved the cordon back and opened up access to the
park at Bolotnaya Square, he had taken part in the negotiations with the police on that
matter. He had reached an agreement with the officers of the Moscow Department of
the Interior that the cordon would be moved back, but the organisers who had filed the
notice [of the event] should have signed the necessary documents. However, those
who had called for a sit-in, including Mr Udaltsov, refused [to stand up] to go to the
offices of the Moscow Department of the Interior to sign the necessary documents,
although he (Mr Gudkov) had proposed several times that they should do so ...
... the witness Mr D. Gudkov [deputy of the State Duma] testified that ... together
with Mr G. Gudkov he had conducted negotiations with the police ... an agreement
had been reached that the cordon at the Malyy Kamennyy bridge would be moved
back and the access to the park would be opened up, but at that point some young men
in hoodies among the protesters began first to push the citizens onto the cordon
provoking the [same] response; after that the cordon was broken, the [police] began
the arrests and mass disorder ensued.
...
... the court [rejects] the testimonies to the effect that it was the police who had
begun moving towards the protesters who were peacefully sitting on the ground and
thus provoked the breaking of the cordon ... [and finds] that it was the protesters, and
not the police ... who began pushing against the cordon, causing the crowd to panic,
which eventually led to the breaking of the cordon and the ensuing mass disorder.
...
The court takes into account the testimony of Mr Davidis that ... at about 6 p.m.
Ms Mityushkina, who was responsible for the stage, informed him about the demand
from the police that she announce, as an event organiser, that it was terminated. He
passed this information on to Mr Udaltsov by phone, [and he] replied that they were
standing up and heading towards the stage ... he knew that on 6 May 2012 [some]
citizens had brought several tents to Bolotnaya Square, but Mr Udaltsov had not
informed him about the need to put up tents during the public event.
...
The court takes into account the testimony of Mr Bakirov ..., one of the [formal]
event organisers ..., that nobody had informed him about the need to put up tents
during the public event.
...
24 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
[The court examined] the video recording ... of the conversation between
Mr Makhonin and Mr Udaltsov during which the latter assured Mr Makhonin that
they would conduct the event in accordance with the authorisation, he would not call
on people to stay in Bolotnaya Square and if problems occurred he would maintain
contact with the police.
...
... [the court examined another video recording] in which Mr Makhonin and
Mr Udaltsov discussed the arrangements. Mr Makhonin showed Mr Udaltsov where
the metal detectors would be placed; after that they agreed to meet at 3 p.m. ... and
exchanged telephone numbers ...
...
According to [expert witnesses Ms N. and Ms M.], the borders of Bolotnaya Square
in Moscow are delimited by Vodootvodnyy channel, Serafimovicha Street,
Sofiyskaya embankment and Faleyevskiy passage, and the [park] forms a part of
Bolotnaya Square. During public events at Bolotnaya Square the park is always
cordoned off and is not used for the passage of citizens.
These testimonies are fully corroborated by the reply of the Head of the Yakimanka
District Municipality of Moscow of 27 July 2012 and the map indicating the borders
of Bolotnaya Square.
...
[The court finds] that the place of the sit-in ... was outside the venue approved by
the Moscow authorities for the public event ...
...
The organisation of mass disorder may take the form of incitement and controlling
the crowd’s actions, directing it to act in breach of the law, or putting forward various
demands to the authorities’ representatives. This activity may take different forms, in
particular the planning and preparation of such actions, the selection of groups of
people to provoke and fuel mass disorder, incitement to commit it, by filing petitions
and creating slogans, announcing calls and appeals capable of electrifying the crowd
and causing it to feel appalled, influencing people’s attitudes by disseminating
leaflets, using the mass media, meetings and various forms of agitation, in developing
a plan of crowd activity taking into account people’s moods and accumulated
grievances, or guiding the crowd directly to commit mass disorder.
... this offence is considered accomplished as soon as at least one of the actions
enumerated under Article 212 § 1 of the Criminal Code has been carried out ...
... the criminal offence of organisation of mass disorder is considered accomplished
when organisational activity has been carried out and does not depend on the
occurrence or non-occurrence of harmful consequences.
...
There are no grounds to consider the closure of access to the park at Bolotnaya
Square and the placement of a guiding police cordon at the foot of Malyy Kamennyy
bridge to be a provocation ... since it was only intended to indicate the direction and it
did not obstruct access to the meeting venue at Bolotnaya Square.
... the reinforcement of the cordon ... was necessary in the circumstances ... to
prevent it from breaking ... but the police [cordon] did not advance towards the
protesters.
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 25
It is therefore fully proven that the mass disorder organised by Mr Udaltsov [and
others] ... led to the destabilisation of public order and peace in a public place during
the conduct of a public event, put a large number of people in danger, including those
who had come to fulfil their constitutional right to congregate in peaceful marches and
meetings, and led to considerable psychological tension in the vicinity of Bolotnaya
Square in Moscow, accompanied by violence against the police ... and the destruction
of property ...”
138. The Moscow City Court found both applicants guilty of organising
mass disorder (Article 212 § 1 of the Criminal Code) and preparing the
organisation of mass disorder (Article 30 § 1 in conjunction with
Article 212 § 1 of the Criminal Code). The first applicant was also found
guilty of unlawful border crossing. Both applicants were sentenced to an
aggregate of four and a half years of imprisonment, which comprised a term
of four years and four months’ imprisonment under Article 212 § 1 and a
concurrent four-year prison term under Article 30 § 1 in conjunction with
Article 212 § 1. The judgment maintained the attachment order in respect of
the car and the sum of money owned by the second applicant and his wife
(see paragraph 46 above) until the resolution of any civil lawsuits against
the second applicant in respect of damage caused by the criminal offence. It
accepted one private company, one municipal entity and the Ministry of the
Interior as civil parties that had sustained damage, but stated that the amount
of damages had to be established in separate civil proceedings. The
judgment did not specify on what grounds the assets had been seized in the
first place, nor did it refer to the legal provision under which the continued
attachment was being ordered.
139. On 18 August 2014 the Zamoskvoretskiy District Court of Moscow
examined the second “Bolotnaya” case, which was similar to the first one,
and found four persons guilty of participating in mass disorder and of
committing violent acts against police officers during the demonstration on
6 May 2012. Prison sentences of between two and a half and three and a
half years were imposed; one of them was suspended. This judgment was
upheld by the Moscow City Court on 27 November 2014.
140. During the appeal hearing the first applicant requested the court to
change his preventive measure to allow him to visit his seriously ill mother,
who lived in Moscow, but the court refused this request.
141. On 11 September 2014 the Deputy Prosecutor General of Ukraine
quashed the decision of 7 December 2012 to terminate the criminal
investigation into the first applicant’s alleged abduction (see paragraph 74
above). According to the Ukrainian Government, after the investigation was
reopened the witnesses Mr S. and Mr R. were questioned again and their
new statements were different from their original ones. Mr S. stated that the
man he had seen being pushed into the vehicle on 19 October 2012 was the
first applicant; Ms R. said that she had seen the black van leaving the car
park in front of the HIAS office at the relevant time.
26 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
2. Criminal liability shall be incurred only for the preparation of serious and
especially serious crimes.
3. An attempt to commit a crime entails the deliberate actions (or inaction) of a
person directly aimed at committing a crime, where the crime was not completed
owing to circumstances beyond the person’s control.”
THE LAW
154. Having regard to the similar subject matter of the applications, the
Court finds it appropriate to examine them jointly in a single judgment.
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 29
155. The first applicant complained that he had been abducted in Kyiv
on 19 October 2012 by unidentified individuals and subsequently ill-treated
by the same individuals, who had tortured him to extract a confession to the
offence of conspiracy to organise mass riots in Russia. According to the first
applicant, the unidentified perpetrators might have been Russian State
agents acting with the tacit agreement of the Ukrainian authorities. He
alleged that following his abduction he had been deprived of his liberty until
21 October 2012, when the unidentified men had taken him to the premises
of the Investigation Committee. He also complained that neither the Russian
nor the Ukrainian authorities had conducted an effective investigation into
the alleged abduction and ill-treatment. He alleged a violation of Articles 3
and 5 of the Convention, which read as follows:
Article 3 (prohibition of torture)
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
A. Admissibility
any event, be established for the procedural obligation imposed by Article 2 to come
into effect in respect of that State. Although the procedural obligation under Article 2
will in principle only be triggered for the Contracting State under whose jurisdiction
the deceased was to be found at the time of death, ‘special features’ in a given case
will justify departure from this approach, according to the principles developed in
Rantsev, §§ 243-44. However, the Court does not consider that it has to define
in abstracto which ‘special features’ trigger the existence of a jurisdictional link in
relation to the procedural obligation to investigate under Article 2, since these features
will necessarily depend on the particular circumstances of each case and may vary
considerably from one case to the other.”
158. Furthermore, a State may also be held accountable for violations of
the Convention rights and freedoms of persons who are in the territory of
another State but who are found to be under the former State’s authority and
control through its agents operating – whether lawfully or unlawfully – in
the latter State. This principle has been applied where an individual is taken
into the custody of State agents abroad (see Öcalan v. Turkey [GC],
no. 46221/99, § 91, ECHR 2005-IV; Issa and Others v. Turkey,
no. 31821/96, § 71, 16 November 2004; and, mutatis mutandis,
Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 136,
ECHR 2011 with further references).
159. The Court observes that the first applicant’s allegations concern
events that occurred in Ukraine and Russia. According to the applicant, his
apprehension in Kyiv by unidentified individuals, and his ill-treatment,
which consisted of his transportation in a vehicle, tied up and blindfolded,
to the Russian border, fell within Ukraine’s jurisdiction. As regards Russia,
the first applicant alleged that it had been responsible for the acts of the
unidentified perpetrators of the abduction because he believed that they
were Russian State agents carrying out official duties. Moreover, his
continued deprivation of liberty after crossing the Russian border and his
alleged ill-treatment leading to his writing a statement confessing to having
organised acts of mass disorder had taken place in the territory of the
Russian Federation. Finally, he contended that both member States had
failed to investigate his abduction and ill-treatment.
160. Adhering to the principle that the jurisdictional competence of a
State is primarily territorial, the Court finds that the first applicant’s
complaints directed against the two member States are compatible
ratione loci with the provisions of the Convention as regards the events
which occurred on their respective territories. Ukraine had territorial
jurisdiction over the first applicant at the time of his alleged abduction and
ill-treatment on the way to the Russian border. Accordingly, if the first
applicant made an arguable claim that he had been deprived of his liberty
and ill-treated within their territory, the Ukrainian authorities had a duty to
investigate that claim. By application of the same principle, Russia had
territorial jurisdiction from the moment of the first applicant’s entry into
32 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
B. Merits
have left Kyiv for Moscow of his own will and pointed out that his
“disappearance” had occurred during an interval in the consultation with the
HIAS; he had left some of his personal belongings at the NGO’s office and
some in a locker at the Kyiv railway station. Those belongings had been
handed in to the police and had then been given to the applicant’s counsel.
He alleged that his abductors had deviated from the shortest route to
Moscow by at least 330 km, according to the Ukrainian border-control
stamp in his passport; at the same time, there was no stamp by the Russian
border control in his passport. The first applicant also pointed out that at the
time of his entry into Russia he had been on the “wanted” list and would
have been detained if he had tried to enter in a regular way. He contended
that neither the Ukrainian nor the Russian authorities had properly
investigated his abduction despite the ample evidence, including witness
statements. Moreover, the Ukrainian authorities had acknowledged that the
investigation had been deficient when in 2014 they had quashed the
decision of 7 December 2012 and ordered its resumption. As regards the
Russian authorities, they had dismissed his complaint without further
investigation; the inquiry on the basis of which the institution of criminal
proceedings had been refused had been conducted by the Investigation
Committee, the same authority against which the complaint had been
directed.
(b) The Ukrainian Government
166. The Ukrainian Government originally contended that the first
applicant’s allegations of abduction had been adequately investigated and
that the decision of 7 December 2012 terminating the criminal proceedings
had been reasoned and well-founded. After the reopening of the
investigation (see paragraph 163 above) they stated that they could not
comment on its effectiveness while it was ongoing; they mentioned that
there had been fresh witness statements. The Ukrainian Government
provided no further information on the progress of the domestic proceedings
and did not update their submissions as regards the merits of this complaint.
167. In reply to the first applicant’s allegations of the Ukrainian
authorities’ involvement in his transfer to Russia, the Ukrainian
Government stated that he had not been extradited. Moreover, the Russian
authorities had not made an extradition request, which would otherwise
have been addressed to the Prosecutor General’s Office of Ukraine, nor had
they reported him as a wanted person. They also stated that he had not had
the status of an asylum seeker at the time of his alleged abduction and
crossing of the Russian border; he had only been preparing an application
for asylum.
34 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
Government, that he had visited the HIAS office that morning and had then
left for lunch, but had not returned to the office.
176. The Ukrainian authorities acknowledged, moreover, that at about
4 p.m. on the same day the HIAS legal officer had reported the first
applicant’s suspected abduction to the Kyiv police and requested that it be
investigated in criminal proceedings. Given that, according to the
eyewitnesses, the first applicant was wrestled into a vehicle, this complaint
suggested not only that he had been unlawfully deprived of his liberty but
that there had been a risk of his ill-treatment by the perpetrators. From the
moment they received this report, the Ukrainian authorities’ obligation to
investigate the incident was engaged under both Articles 3 and 5 of the
Convention.
177. In fact, the Ukrainian authorities did not dispute that they had been
under an obligation to conduct an effective investigation in this case.
However, they initially refused to open a criminal investigation after a
superficial inquiry which ended with a decision of 7 December 2012 to
dispense with criminal proceedings. The Ukrainian authorities have
implicitly acknowledged that that inquiry did not constitute an effective
investigation. In December 2014 they undertook to carry one out (see
paragraph 163 above). However, in the absence of any report on the part of
the respondent Government on the progress of those proceedings the Court
cannot but conclude that the Ukrainian authorities have not complied with
this obligation to date.
178. As regards the Russian authorities with which the first applicant
lodged complaints shortly after his arrest in Moscow, the Russian
Government stated that his allegations were unsubstantiated because the
first applicant had not sustained any injuries which he could demonstrate as
evidence. However, the Court does not consider the absence of injuries to be
sufficient to dismiss a complaint of this kind. By presenting witness
statements from the HIAS staff the applicant made a prima facie case of
abduction, possibly associated with inhuman or degrading treatment during
his transfer to Russia, which placed the Russian authorities under an
obligation to investigate it. 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 (see Güzelyurtlu and Others,
cited above, §§ 232-33), but this has not been done. In any event, the order
for the first applicant’s abduction was allegedly given in Russia, and it was
incumbent on the Russian authorities to verify these allegations. Moreover,
the first applicant’s deprivation of liberty and ill-treatment had allegedly
continued in Russian territory. The Court therefore cannot accept that the
Russian authorities could not have taken any action within their
competence.
179. The Court concludes that the authorities of neither of the
respondent States have taken the necessary steps to verify the first
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 37
182. The first applicant alleged that he had not received adequate
medical assistance during his lengthy pre-trial detention and that the
excessively intensive schedule of the court hearings had led to the
deterioration of his health, in violation of Article 3 of the Convention.
taken place four days a week, usually beginning at about 11 a.m. and
finishing at about 5 p.m.
(b) The first applicant
184. The first applicant submitted that his health had deteriorated
significantly during his detention and that for the first two years of his
detention he had not received any treatment. He alleged that he had not
begun receiving medical assistance until 1 October 2014, when he had had a
heart seizure, after which he had been transferred to the SIZO-1 prison
hospital (“Matrosskaya Tishina”), where he had been treated until
14 November 2014. The applicant alleged that he had been transferred back
to the detention facility despite still being seriously ill and having difficulty
walking. He had made multiple requests to the trial court to reduce the
intensity of the hearing schedule and to change his preventive measure to
house arrest to allow him to recover from illness, stress and fatigue. The
applicant relied on the results of the coronary angiography conducted on
12 November 2014, and asserted that his diagnosis of hypertension had
worsened because of his lengthy detention in conditions amounting to
ill-treatment and the exhausting criminal proceedings.
185. The first applicant did not contest the Government’s submissions
about the number of court hearings per week and their duration. However,
he pointed out that his transfer arrangements between the detention facilities
and the courthouse had been such that he had had to wake up at 6 a.m. and
return to his detention cell at about midnight. He had thus spent many hours
per day in the transfer van and had not had sufficient sleep on the days of
the hearing.
187. Likewise, there is nothing in the case file to corroborate the first
applicant’s claim of poor detention conditions or to link them to the state of
his health.
188. As regards the intensity of the court hearing schedule, the Court
notes that it has previously considered lack of sleep caused by the frequency
and length of prison transfers to be a compounding factor for treatment to
attain, overall, the minimum level of severity required to characterise it as
degrading within the meaning of Article 3 of the Convention (see Yaroslav
Belousov v. Russia, nos. 2653/13 and 60980/14, § 110, 4 October 2016).
The Court observes that, according to both parties, the hearings were
conducted four days a week, from about 11 a.m. to about 5 p.m. However,
this did not include the time the first applicant spent during the transfer
between the detention facility and the court. During the trial he regularly
complained about his early departures from the detention facility – as early
as 6 a.m. – and late arrivals after the hearings, typically after 11 p.m., but
sometimes after midnight, and asked the court to reduce the frequency of
the hearings, to transfer him to another detention facility or to apply a
non-custodial preventive measure. The Government did not comment on the
applicant’s submissions about his early pick-up and late drop-off times. It
appears from the detention facility’s report that the drop-off time was
10.15 p.m., which means that the first applicant had seven hours and
forty-five minutes before the pick-up for the next day’s hearing. The Court
considers that the time of rest thus afforded to the first applicant was far
from adequate (see also paragraphs 254-255 below). However, in the
present case the information available about the intensity of the hearing
schedule does not, by itself or in combination with other elements known
about the conditions of the first applicant’s detention and the medical care
provided to him, allow the Court to conclude that it attained the threshold of
severity required to characterise it as degrading treatment within the
meaning of Article 3 of the Convention.
189. It follows that the first applicant’s complaint of a violation of
Article 3 of the Convention on account of the poor level of medical
assistance provided to him, the intensity of the court hearing schedule and
the conditions at the courthouse is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
that, moreover, his pre-trial detention had not been based on a “reasonable
suspicion” that he had committed a criminal offence. He also complained
that his pre-trial detention had not been justified by “relevant and sufficient
reasons”, as required by Article 5 § 3 of the Convention.
A. Admissibility
191. As regards the period between 19 and 21 October 2012, the Court
has found that it has no evidence that the first applicant’s abductors acted on
behalf of State authorities (see paragraph 174 above). Consequently, it
cannot accept the allegation that the three-day period when he was deprived
of his liberty by unidentified individuals formed part of his pre-trial
detention. Likewise, it cannot accept the allegation that the ten days of his
pre-trial detention in 1997 were relevant for the term of his detention
ordered in 2012 because the detention orders in the latter case were based
on a reference to charges of mass disorder; the reference to the 1997 case in
the investigator’s request is of no consequence for the assessment of this
question.
192. It follows that the first applicant’s complaint of a violation of
Article 5 § 1 of the Convention on account of the incorrect calculation of the
term of his pre-trial detention is manifestly ill-founded and must be rejected
in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
193. As regards the subsequent period, the Court notes that the
Basmannyy District Court of Moscow ordered the first applicant’s
detention, which was extended on several occasions by the same court and,
after the case had been submitted for trial, by the Moscow City Court. The
domestic courts acted within their powers in making those decisions and
there is nothing to suggest that they were invalid or unlawful under
domestic law. Accordingly, the first applicant’s detention was imposed and
extended in accordance with a procedure prescribed by law.
194. As regards the allegation that the first applicant’s detention was not
based on a reasonable suspicion that he had committed criminal offences,
his complaint under Article 5 § 1 of the Convention is linked to his
complaint under Article 5 § 3 of the Convention that the authorities had
failed to adduce relevant and sufficient reasons justifying the extensions of
his detention pending criminal proceedings. According to the Court’s case-
law under the latter provision, the persistence of a reasonable suspicion is a
condition sine qua non for the validity of continued detention (see Buzadji
v. the Republic of Moldova [GC], no. 23755/07, § 87, ECHR 2016
(extracts)). In addition to the persistence of reasonable suspicion, a pre-trial
detention must also be justified on relevant and sufficient grounds, already
at the time of the first decision ordering detention on remand (ibid., § 102).
Having regard to the nature of the applicant’s allegations, the Court deems it
more appropriate to deal with the issues raised by the complaint under
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 41
B. Merits
intercepted at the stage of preparing the crime. It took into account the
police reports stating that the applicant had previously fled and had been
placed on the “wanted” list. In the extension orders the courts continued to
rely on the information that he had previously tried to flee, that he did not
have employment or a permanent income, and that he did not live at his
registered address in Irkutsk. In some extension orders they relied also on
the gravity of the charges and his previous prosecution for other criminal
offences. The extensions ordered after the end of the investigation also
indicated that the extension was necessary to allow the first applicant access
to the criminal case file. Replying to the first applicant’s request to replace
his detention with house arrest at his wife’s address in Moscow, the courts
noted that he was not registered at that address.
200. In the present case, the Court is prepared to accept that the nature
and the gravity of the offences imputed to the first applicant, that is, the
preparation of mass disorder, could have played a role in the choice of
preventive measure at the initial stage of the investigation. However, it
reiterates that, although the seriousness of the charges and the severity of
the sentence faced are relevant in the assessment of the risk of an accused
person’s absconding, reoffending or obstructing the course of justice, they
cannot alone serve to justify long periods of detention (see Ilijkov
v. Bulgaria, no. 33977/96, §§ 80 and 81, 26 July 2001, and Artemov
v. Russia, no. 14945/03, § 77, 3 April 2014).
201. It observes that throughout the whole period of the first applicant’s
detention the domestic courts accepted that there was a risk of him
absconding because of police information about his previous attempt to flee
the investigation, as well as his absence from his registered address and his
lack of employment. The references to his frequent travels, his possession of
a travel passport and his connections in Russia and abroad did not feature in
the later detention orders. The Court will therefore examine whether the
three above-mentioned factors remained relevant and sufficient in the later
stages of the criminal proceedings.
202. It notes that the courts attached weight to the police reports on the
first applicant’s attempt to flee and his placement on the “wanted” list in
October 2012. However, according to the official version, it was the first
applicant who presented himself on 21 October 2012 to surrender and
confess. Moreover, at the time of his journey to Ukraine in October 2012 he
did not have the status of a suspect in a criminal case and was not subject to
any preventive measure; his absence from his registered address at the time
when the authorities decided to bring charges was not in breach of any rule
or undertaking. It appears that the courts did not perform a thorough
assessment of the information provided by the police and did not question
their contradictory allegations as regards the first applicant’s previous
attempts to flee. As to the applicant’s lack of fixed employment and the fact
that he was not registered at his de facto address in Moscow, the Court
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 43
considers that the domestic courts did not provide a satisfactory explanation
as to why these circumstances constituted an obstacle to applying other
preventive measures, in particular house arrest.
203. Likewise, the courts’ reasoning did not contain sufficient details to
enable the Court to uphold their finding that in the later stages of the
investigation and during the trial the applicant still posed risks of
reoffending, tampering with evidence and influencing witnesses.
Accordingly, the Court has no grounds for accepting that these risks could
not have been effectively dealt with by other preventive measures.
204. The Court further notes that on 7 October 2013 the domestic court
granted an extension of the first applicant’s pre-trial detention, in particular
to allow him and his counsel sufficient time for access to the investigation
file. It is not clear, however, why the applicant had to remain in detention
for that purpose. Certainly, if released, he could have accessed the file under
the same arrangements as persons to whom pre-trial detention had never
been applied. Moreover, the Court has previously found that the provisions
of Russian law concerning the extension of detention pending the study of
the case file by a defendant were not foreseeable in their application, in
violation of Article 5 § 1 of the Convention (see Tsarenko v. Russia,
no. 5235/09, §§ 59-63, 3 March 2011, and Pyatkov v. Russia, no. 61767/08,
§§ 86-91, 13 November 2012).
205. Having regard to the material in its possession, the Court considers
that by failing to address the specific facts or to consider alternative
preventive measures, the authorities extended the first applicant’s detention
on grounds which, although “relevant” for the initial period, cannot be
regarded as “sufficient” to justify remanding him in custody for a period of
over one year and nine months.
206. There has accordingly been a violation of Article 5 § 3 of the
Convention.
A. Admissibility
208. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
44 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
B. Merits
offer of bail without stating reasons beyond a formulaic indication that this
would not suffice as a preventive measure.
219. It follows that the authorities failed to convincingly demonstrate the
persistence of the risks of the second applicant’s absconding and
reoffending such as to justify the extensions of his detention for a period of
over seventeen months.
220. The Court finds that there has been no violation of Article 5 § 1 of
the Convention, and a violation of Article 5 § 3 of the Convention.
from taking part in the court proceedings and his lack of access to the
transcripts of the proceedings during the trial at first instance.
225. Article 6 of the Convention, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled
to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights ...
(b) to have adequate time and facilities for the preparation of his defence; ...
(d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him ...”
A. Admissibility
232. It follows that the above complaints are manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
233. On the other hand, the Court notes that the remaining complaints
under Article 6 are not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention and are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
and argued that the ambulance doctor who had examined him had refused to
issue such an authorisation; the authorisation had been given by the court’s
medical staff, who had not examined him but had authorised his presence on
the presiding judge’s orders. He alleged that on that day he had had gastric
pain impeding his participation in the proceedings and he had requested the
court to adjourn the hearing. The court had rejected the request although
there had been no urgent steps to be taken on that day. When he reiterated
the request, the judge had issued a warning to him and to his defence
lawyer. The second applicant, still in pain, had repeated in emotional terms
that it was inhuman and degrading treatment to force him to participate in
the trial in that condition, and he had been removed from the courtroom as a
penalty for contempt of court. He had returned to the trial only on 7 April
2014, having missed the cross-examination of eleven witnesses and four
victims, and the examination of some written evidence.
237. As regards the first applicant’s confinement in a glass cabin during
the court hearings, he maintained, in particular, that this installation had
impeded his participation in the proceedings and his communication with
his legal counsel.
238. The applicants’ submissions concerning the excessive intensity of
the court hearing schedule are the same as those summarised in
paragraphs 184-85 above.
(b) The Russian Government
239. The Government contested the applicants’ allegations. They
maintained that the use of the accelerated procedure and plea bargaining in
the disjoined proceedings against L. had had no adverse effect on the
fairness of the criminal proceedings against the applicants. They referred to
Article 90 of the Code of Criminal Procedure, which provided that a
judgment could not predetermine the guilt of anyone who had not
participated in the criminal case under consideration. In any event,
Article 90 had been amended on 29 June 2015 to introduce an exception to
the rule that the circumstances established in an earlier judgment were to be
accepted by a court without additional verification: this rule no longer
applied to findings made in accelerated proceedings. The Government also
contended that the judgment against L. had not identified the applicants by
their names or initials, referring to them in general terms. L. had been
cross-examined at the applicants’ trial and his testimony had been admitted
in evidence, without conferring res judicata on the statements made by him
in his own case. The Government pointed out that the first applicant had
unsuccessfully challenged the relevant provisions of the Code before the
Constitutional Court.
240. In relation to the complaint about the refusal to call and examine
witnesses requested by the applicants, the Government submitted that the
four witnesses in question (Mr A.K., Ms P.B., Ms E.V. and Ms E.T.) had
52 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
attended the public hearings in the applicants’ case prior to the request to
call them as witnesses. The judge had therefore decided to reject the
applicants’ request, considering that the court had heard the submissions of
other participants in the trial. The Government also argued that these
witnesses had not been “key” ones in the present case; otherwise the
applicants would have requested their examination at an earlier stage in the
proceedings. As for the first applicant’s complaint about the court’s refusal
to call and examine his former legal counsel F. as a witness, the
Government submitted that F. had been given the status of witness in the
criminal proceedings which had subsequently been joined with the
proceedings in which he had acted as the first applicant’s defence counsel.
Therefore, he had been unable to continue as defence counsel in the joined
case. At the same time, in the same proceedings he had been prevented from
testifying about circumstances which were covered by the client-lawyer
privilege. The Government therefore alleged that F. had had to be replaced
to secure the first applicant’s procedural rights as a defendant.
241. Concerning the second applicant’s absence on some days of the
trial, they submitted that on 26 March 2014 the court had adjourned the
proceedings until 1 April 2014 on the basis of a medical certificate
submitted by the applicant and made an enquiry to the medical clinic where
the certificate had been issued. The clinic had replied on 1 April 2014 that
no medical leave had been given to the second applicant. On the same day
the court had ordered the applicant to attend the hearing and he had been
brought to the court; his ability to stand trial had been assessed by a doctor
called to the courtroom, and the second applicant had stated that he did not
require medical assistance. The court had therefore resumed the hearing
with the applicant present. However, the applicant had been removed from
the courtroom for three days (1-3 April 2014) as a penalty for contempt of
court following his loud remarks denigrating the trial court. On the three
days of the trial when the second applicant had been absent, he had been
represented by his lawyers. Therefore, there had been no violation of
Article 6 on this account.
242. As regards the first applicant’s confinement in a glass cabin during
the court hearings, the Government submitted that this arrangement had not
obstructed the defendant’s participation in the proceedings; the cabin had
been equipped with a microphone to enable him to address the court, and
there had been slots through which he could talk to his lawyer. The lawyer
had sat near the cabin. The Government contended that the first applicant’s
frequent consultations with his lawyer and his active participation in the
proceedings showed that there had been no impediments to the exercise of
his procedural rights.
243. The Government’s submissions concerning the allegedly excessive
intensity of the court hearing schedule are summarised in paragraph 183
above.
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 53
separated. It finds that L.’s conviction following the use of plea bargaining
and accelerated proceedings compromised his credibility as a witness in the
applicants’ case because he was 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.
246. Moreover, it must be noted that Article 90 of the Code of Criminal
Procedure, as worded at the material time, expressly conferred res judicata
on judgments even if issued in accelerated proceedings. The Court recalls its
previous finding that even if the courts were obliged to base their
assessment exclusively on the material and testimony presented at the
hearing, this provision required the court to remain concordant with the
previous judgment (see Navalnyy and Ofitserov, cited above, § 236) which
holds true in this case. The Court considers that both L. and the domestic
courts had an obvious incentive to remain concordant with the findings
made in the accelerated proceedings even though those findings had not
been scrutinised in an adversarial manner.
247. The Court concludes that there has been a violation of Article 6 § 1
of the Convention in respect of both applicants.
(b) The first applicant’s confinement in a glass cabin in the courtroom
248. The first applicant complained about his confinement in a glass
cabin in hearing room no. 635 at the Moscow City Court. This particular
courtroom arrangement has already been examined by the Court from the
standpoint of Articles 3 and 6 of the Convention (see Yaroslav Belousov,
cited above, §§ 127 and 148-53 respectively). It found that although the
conditions in hearing room no. 635 of Moscow City Court did not attain the
minimum level of severity to constitute a violation of Article 3 of the
Convention, they amounted to a disproportionate restriction of the
defendants’ rights to participate effectively in the proceedings and to receive
practical and effective legal assistance. In particular, the defendants were
separated from the rest of the hearing room by glass, a physical barrier
which to some extent reduced their direct involvement in the hearing and
made it impossible for them to have confidential exchanges with legal
counsel. However, the trial court did not seem to recognise the impact of
these courtroom arrangements on their defence rights, and did not take any
measures to compensate for these limitations.
249. In the present case, as in Yaroslav Belousov (cited above), the use
of this security installation was not warranted by any specific security risks
or courtroom order issues but was applied to the first applicant
automatically because he was in pre-trial detention, and without any
compensatory measures. Such circumstances prevailed for over five months
during the trial at first instance, and inevitably had an adverse effect on the
fairness of the proceedings as a whole.
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 55
250. It follows that during the trial at first instance, the first applicant’s
rights to participate effectively in the proceedings and to receive practical
and effective legal assistance were restricted, and such restrictions were
neither necessary nor proportionate. There has therefore been a violation of
Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (b)
and (c).
(c) Allegedly excessive intensity of the court hearing schedule as regards the
first applicant
251. The first applicant alleged that the court hearings had been
scheduled too frequently and had left him insufficient time to rest, which
had led to his exhaustion and reduced the effectiveness of his participation
in the proceedings.
252. The Court reiterates that the States’ duty under Article 6 § 3 (b) to
ensure the accused’s right to mount a defence in criminal proceedings
includes an obligation to organise the proceedings in such a way as not to
prejudice the accused’s power to concentrate and apply mental dexterity in
defending his position (see Makhfi v. France, no. 59335/00, §§ 40-41,
19 October 2004). Where the defendants are detained, the conditions of
their detention, transport, catering and other similar arrangements are
relevant factors to consider in this respect (see, for example, Barberà,
Messegué and Jabardo v. Spain, 6 December 1988, §§ 70 and 89, Series A
no. 146; Mayzit v. Russia, no. 63378/00, § 81, 20 January 2005; and
Moiseyev v. Russia, no. 62936/00, §§ 221-22, 9 October 2008).
253. The Court observes that in the domestic proceedings the trial court
dismissed the first applicant’s complaints, referring to the information from
the detention facility to the effect that the first applicant had been dropped
off at 10.15 p.m. at the latest, and noted the lack of medical evidence of any
deterioration in the first applicant’s health. Only on one occasion, on
20 March 2014, had the court adjourned the hearing on the basis that the
first applicant needed rest after having been transferred to another detention
facility. However, the first applicant’s subsequent complaints of lack of
concentration because of exhaustion and sleep deprivation were dismissed
as unfounded.
254. In the present case, although the Court has concluded that the
intensity of the court hearing schedule did not reach a sufficient level of
severity to qualify as inhuman or degrading treatment within the meaning of
Article 3 (see paragraph 188 above), it considers that this affected the first
applicant’s ability to participate effectively in the proceedings and to
instruct his lawyers. It observes that the first applicant and his lawyers made
numerous detailed and specific complaints alleging that he could not
concentrate on the hearing because of exhaustion and sleep deprivation. The
courts, however, considered that the schedule was reasonable on the basis of
the time the applicant spent in court. They did not take into consideration
56 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
the time the first applicant spent being transferred, although they accepted
the report from the detention facility indicating the drop-off time as
10.15 p.m., implying that this left him seven hours and forty-five minutes
before the pick-up for the next day’s hearing. Moreover, lengthy transfers in
poor conditions to and from courts appear to have been common in Moscow
at the material time (see Yaroslav Belousov, cited above, §§ 103-11). The
cumulative effect of exhaustion caused by lengthy prison transfers leaving
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. While the Court accepts the domestic court’s reasons for
expediting the proceedings, it considers that in this case insufficient
consideration was given to the first applicant’s requests for a less intensive
hearing schedule.
255. The Court therefore holds that the first applicant was not afforded
adequate facilities for the preparation of his defence, which undermined the
requirements of a fair trial and equality of arms, in violation of Article 6
§§ 1 and 3 (b).
(d) Conclusions on Article 6
256. The Court finds that there has been a violation of Article 6 § 1 of
the Convention on account of L.’s admission as a witness in the applicants’
criminal case after his conviction in separate accelerated proceedings based
on plea bargaining.
257. In respect of the first applicant, there has also been a violation of
Article 6 §§ 1 and 3 (b) on account of the excessively intensive hearing
schedule and the lengthy prison transfers, and of Article 6 §§ 1 and 3 (b)
and (c) of the Convention on account of his confinement in the glass cabin
in the courtroom.
258. In view of these findings, the Court does not consider it necessary
to address the remainder of the applicants’ complaints under Article 6 §§ 1
and 3 of the Convention.
259. The first applicant complained that while in detention he had not
been granted short-term leave to visit his dying mother or, subsequently, to
attend her funeral. He also complained that he had been sent to serve his
prison term in very remote correctional facilities, which had hindered
contact with his family and social ties. These complaints fall to be examined
under Article 8 of the Convention, which reads as follows:
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 57
A. Admissibility
260. The Government submitted that the first applicant had not
challenged his transfer to the correctional facility in the Krasnoyarsk Region
before the domestic courts. A similar objection as to the non-exhaustion of
domestic remedies has recently been examined and dismissed on the basis
that the applicant did not have at his disposal an effective domestic remedy
for his grievances under Article 8 (see Voynov v. Russia no. 39747/10, § 47,
3 July 2018). The Court does not find any grounds to depart from this
finding. Accordingly, it dismisses the Government’s objection as to the
non-exhaustion of domestic remedies in respect of this complaint.
261. The Court notes that the complaints under Article 8 are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that they are not inadmissible on any other grounds. This
part of the application must therefore be declared admissible.
B. Merits
the funeral had been impracticable because of the very short notice. They
specified that the Ombudsperson’s cable concerning his mother’s death on
8 April 2015 had been received by the Federal Prison Service on 10 April
2015, and this had not allowed the service to arrange for his timely transfer
to the funeral venue on the following day. They added that the applicant had
not personally submitted a request to attend the funeral. They did not
comment on the alleged refusal to grant the first applicant leave to visit his
mother before her death.
265. As regards the first applicant’s transfer to the detention facility in
the Krasnoyarsk Region, the Government alleged that it had been lawful and
compatible with his right to family life. They pointed out that he had been
visited by his family members in that facility and he had sent letters to his
wife regularly. They noted that Article 73 § 2 of the Code on the Execution
of Sentences provided for an exception to the general rule on distribution of
prisoners in cases where it was impossible to allocate a prisoner to a
detention facility located in the “home” region, which was the reason he had
not been transferred to the Irkutsk Region.
The authorities can refuse an individual the right to attend the funeral of his
parents only if there are compelling reasons for such refusal and if no
alternative solution can be found (see Płoski v. Poland, no. 26761/95, § 37,
12 November 2002, and Guimon v. France, no. 48798/14, §§ 44-51,
11 April 2019).
268. In the instant case the Russian authorities did not give any
consideration to the first applicant’s requests referring to his mother’s
serious illness and, after she died, they considered that they did not have
sufficient time to make the necessary arrangements for him to attend the
funeral. The latter refusal was not based on the assessment of his individual
situation, in particular the fact that he had not been given an opportunity to
see his mother before her death. The time constraints complicating the
planning of the funeral attendance was not a sufficient reason for refusing it.
It is typical for funerals to be fixed at very short notice and they are
generally regarded as a matter of urgency. In this case, it would have been
physically possible for the first applicant to arrive at the funeral, which was
held on the following day in the same city. The fact that the request came
from the Ombudsperson rather than from the applicant should not have
mattered because it was clear from her letter that the request had been
initiated by the applicant’s counsel (see paragraph 144 above). In the
Court’s view, the decision to refuse the first applicant leave was taken in a
manner incompatible with the State’s duty to carry out an individualised
evaluation of his particular situation and to demonstrate that the restriction
of his right to attend a relative’s funeral was “necessary in a democratic
society”.
269. There has therefore been a violation of Article 8 of the Convention
on account of the refusal of leave to the first applicant to visit his seriously
ill mother and subsequently to attend her funeral.
(b) Remote location of the correctional facility
270. As indicated above (see paragraph 267 above), it is an essential part
of a prisoner’s right to respect for family life that the authorities enable him
or her, or if need be assist him or her, to maintain contact with his or her
close family, and that, on the issue of family visits, Article 8 of the
Convention requires States to take into account the interests of the prisoner
and his or her relatives and family members. Placing a convicted prisoner in
a particular penal facility may raise an issue under Article 8 of the
Convention if its effects on his or her private and family life go beyond the
“normal” hardships and restrictions inherent in the very concept of
imprisonment, in particular in view of the geographical situation of remote
penal facilities and the realities of the transport system (see, with further
references, Polyakova and Others, cited above, § 81).
271. The Court has already analysed the Russian domestic legal system
in the context of the geographical distribution of prisoners (ibid., §§ 90-115)
60 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
and concluded that the system did not afford adequate legal protection
against possible abuses, and that Article 73 §§ 2 and 4 and Article 81 of the
Code on the Execution of Sentences did not satisfy the “quality of law”
requirement (ibid., §§ 117-18).
272. There is nothing in the Government’s submissions regarding the
present case to convince the Court to depart from the above findings. The
Court thus concludes that the interference with the first applicant’s right to
respect for his family life in the present case was not “in accordance with
the law” within the meaning of Article 8 § 2 of the Convention.
273. Therefore, there has been a violation of Article 8 of the Convention
on account of the first applicant’s transfer to the correctional colony in the
Krasnoyarsk Region.
protection of health or morals or for the protection of the rights and freedoms of
others. This Article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police or of the
administration of the State.”
applicants were also accused of having been responsible for the specific
occurrence of acts of mass disorder during the rally at Bolotnaya Square on
6 May 2012. In their complaints before the Court both applicants focused on
the second point, contesting their responsibility for the disorder at
Bolotnaya Square.
278. In so far as the applicants relied on Article 10 in relation to the
events at Bolotnaya Square, their allegations concern only the matters
directly relating to the conduct of the assembly, without distinguishing any
form of expression exercised independently from the freedom of assembly.
Accordingly, in the circumstances of the case, Article 10 of the Convention
is to be regarded as a lex generalis in relation to Article 11 of the
Convention, which is the lex specialis (see Ezelin v. France, 26 April 1991,
§ 35, Series A no. 202; Akarsubaşı and Alçiçek v. Turkey, no. 19620/12,
§§ 31-33, 23 January 2018; and Öğrü v. Turkey, no. 19631/12, § 13,
17 October 2017). As such, the applicants’ complaints should be examined
under Article 11 of the Convention. On the other hand, notwithstanding its
autonomous role and particular sphere of application, Article 11 of the
Convention must, in the present case, also be considered in the light of
Article 10 of the Convention. The protection of personal opinions, secured
by Article 10 of the Convention, is one of the objectives of freedom of
peaceful assembly as enshrined in Article 11 of the Convention (see Ezelin,
cited above, § 37).
281. The Court also observes, turning to the specific facts of this case,
that the judgment of 24 July 2014 referred to surveillance material obtained
undercover, in particular audio recordings of conversations, the content of
which was partly contested by the applicants. The same judgment also relied
on the content of the film Anatomy of Protest, Part Two, which was based
on footage of which the provenance and reliability were contested by the
applicants during the trial. In the proceedings before the Court the parties
did not make detailed submissions as regards these pieces of evidence.
Noting that the domestic courts examined them in adversarial proceedings
in which the applicants were able to scrutinise and challenge the impugned
evidence, the Court is not required to substitute its own assessment of the
content and the probative value of these recordings for that of the domestic
courts, or to call into question the facts established on the basis of them
(see, inter alia, Klaas v. Germany, 22 September 1993, § 29, Series A
no. 269, and Kudrevičius and Others v. Lithuania [GC], no. 37553/05,
§ 169, ECHR 2015). The Court will therefore base its assessment on the
version of events set out in the domestic judgments.
3. Admissibility
282. The Court reiterates that Article 11 of the Convention only protects
the right to “peaceful assembly”, a notion which does not cover a
demonstration where the organisers and participants have violent intentions
(see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria,
nos. 29221/95 and 29225/95, § 77, ECHR 2001-IX). The guarantees of
Article 11 of the Convention therefore apply to all gatherings except those
where the organisers and participants have such intentions, incite violence
or otherwise reject the foundations of a democratic society (see Sergey
Kuznetsov v. Russia, no. 10877/04, § 45, 23 October 2008; Alekseyev
v. Russia, nos. 4916/07, 25924/08 and 14599/09, § 80, 21 October 2010;
Fáber v. Hungary, no. 40721/08, § 37, 24 July 2012; Gün and Others
v. Turkey, no. 8029/07, § 49, 18 June 2013; Taranenko, cited above, § 66;
Kudrevičius and Others, cited above, § 92; and Navalnyy v. Russia [GC],
nos. 29580/12 and 4 others, § 98, 15 November 2018). It is therefore
necessary to determine whether the facts of the present case fall within the
ambit of Article 11 of the Convention.
283. The Court has examined a number of cases where it found that the
assembly at Bolotnaya Square fell within the scope of Article 11 of the
Convention and accepted that the applicants in those cases enjoyed the
protection of this provision in so far as they were not among those
responsible for the initial acts of aggression contributing to the deterioration
of the assembly’s peaceful character (see, among other authorities, Yaroslav
Belousov, cited above, § 172; Stepan Zimin v. Russia, nos. 63686/13 and
60894/14, § 72, 30 January 2018; and Lutskevich v. Russia, nos. 6312/13
and 60902/14, § 94, 15 May 2018). However, it accepted that there might
64 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
have been a number of individuals in the crowd who had contributed to the
onset of clashes between the protesters and the police and whose situation
could have been contrasted with that of the applicants in the aforementioned
cases (see Barabanov, cited above, § 72).
(a) The first applicant
284. In the present case, the first applicant was found guilty of leading a
number of individuals to break through the police cordon, and the witnesses
confirmed that he had had that intention. Given that the breaking of the
cordon led to the escalation of violence at a crucial moment and triggered
the onset of clashes, the Court considers that the first applicant’s deliberate
acts contributing to its occurrence fall outside the notion of “peaceful
assembly” protected by Article 11. It therefore dismisses the first
applicant’s complaint as incompatible ratione materiae with the provisions
of the Convention.
(b) The second applicant
285. In relation to the second applicant, on the other hand, the Court
considers that the acts imputed to him – that is, taking part in the sit-in and
encouraging others to join it, and his calls to the protesters to begin an
“indefinite protest action” on the site of the cancelled meeting and to set up
an illegal campsite there – did not demonstrate any violent intentions on his
part. No witnesses at the trial stated that he had taken part in any violent acts
or encouraged them; on the contrary, he insisted on a “strictly peaceful”
form of conduct. It is noteworthy that the first applicant was not acting on
the second applicant’s instructions when deciding to break through the
police cordon (see witness testimony by State Duma Deputy Ilya
Ponomarev, paragraph 129 above). Therefore, Article 11 is applicable to the
second applicant’s complaint.
286. The Court notes that the second applicant’s complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
4. Merits
287. The Court has found that Article 11 of the Convention is applicable
to the second applicant’s complaint about his prosecution and criminal
conviction for organising mass disorder during the assembly at Bolotnaya
Square (see paragraph 285 above). Accordingly, these measures constituted
an interference with the exercise of the freedom of assembly (see Yaroslav
Belousov, cited above, § 172). The Court will therefore examine whether the
interference was “prescribed by law”, pursued a legitimate aim and was
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 65
venue for an indefinite protest action. He may also have encouraged the
setting-up of campsites supposedly inspired by the “Occupy” movement.
These calls, in particular for overstaying the allocated time-slot of the
assembly and for setting up a campsite, were clearly illegal as they would
have been in breach of the established rules on holding a public assembly.
293. However, none of the second applicant’s statements incited
recourse to physical force or actions of a destructive nature. On the contrary,
he repeatedly called on the participants to remain calm and peaceful. The
fact that certain protesters may have committed violent acts does not affect
the assessment of the second applicant’s conduct in the absence of evidence
that they had been incited by him. The mere fact that the second applicant
was one of the event organisers is not sufficient to hold him responsible for
the conduct of the attendees (see Mesut Yıldız and Others v. Turkey,
no. 8157/10, § 34, 18 July 2017).
294. Neither could the second applicant’s violent intentions be inferred
from the circumstances underlying the related set of charges examined in
the same set of proceedings, namely preparation of the organisation of acts
of mass disorder (other than the one at Bolotnaya Square). In particular, no
such intentions were apparent from the fundraising activities which he
carried out before and after 6 May 2012 in order to finance opposition
rallies, training sessions for activists and media campaigns. The recordings
of negotiations examined at the trial and referred to in the judgment
contained no reference to armed or other forceful methods of exerting
political pressure on the authorities. In particular, the proposal to block
railway lines made in the conversations recorded undercover and relied on
by the domestic judgment was attributed to the first applicant, and in any
event the extent of violence involved in that proposal was not assessed. The
domestic judgments thus 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. The domestic courts therefore omitted a
crucial element of the balancing exercise which is required by the
proportionality principle when imposing sanctions for unlawful conduct at
assemblies (see Kudrevičius and Others, cited above, §§ 142-44, and Gülcü
v. Turkey, no. 17526/10, §§ 110-17, 19 January 2016).
295. The Court reiterates that the nature and severity of the penalties
imposed are factors to be taken into account when assessing the
proportionality of an interference in relation to the aim pursued (see
Kudrevičius and Others, cited above, § 146). Where the sanctions imposed
on demonstrators are criminal in nature, they require particular justification
(see Rai and Evans v. the United Kingdom (dec.), nos. 26258/07 and
26255/07, 17 November 2009). A peaceful demonstration should not, in
principle, be rendered subject to the threat of a criminal sanction, and
notably to deprivation of liberty (see Akgöl and Göl v. Turkey,
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 67
nos. 28495/06 and 28516/06, § 43, 17 May 2011, and Gün and Others, cited
above, § 83). Thus, the Court must examine with particular scrutiny cases
where sanctions imposed by the national authorities for non-violent conduct
involve a prison sentence (see Taranenko, cited above, § 87).
296. In the present case, the second applicant’s criminal conviction was
not based on an assessment of the nature of his conduct, that is, whether his
acts and intentions were violent or peaceful. In omitting to justify the
criminal sanction by a specific reference to the violent nature of his conduct,
the national authorities failed to apply standards which were in conformity
with the principles embodied in Article 11 and thus to demonstrate that his
criminal conviction for having organised mass disorder at Bolotnaya Square
met a “pressing social need” (see Kudrevičius and Others, cited above,
§ 143).
297. It must be stressed, moreover, that the second applicant’s criminal
conviction, and especially the severity of his sentence, would inevitably
have had the effect of discouraging him and other opposition supporters, as
well as the public at large, from attending demonstrations and, more
generally, from participating in open political debate. The chilling effect of
this sanction was further amplified by the fact that it targeted a well-known
public figure, and by the large-scale proceedings in this case, which
attracted widespread media coverage.
298. The Court concludes that in view of the severity of the sanction
imposed on the second applicant and the failure to assess the extent to
which the authorities had contributed to the deterioration of the assembly’s
peaceful character (see paragraph 291 above), his criminal conviction was a
measure disproportionate to the legitimate aims of preventing disorder and
crime and protecting the rights and freedoms of others. It was therefore not
necessary in a democratic society.
299. There has accordingly been a violation of Article 11 of the
Convention as regards the second applicant.
A. Admissibility
310. The Court notes the Government’s allegation that the second
applicant failed to demonstrate that he had instituted civil proceedings for
the lifting of the attachment order in respect of the funds and the car.
However, they did not claim that the lack of recourse to such proceedings
had constituted non-exhaustion of domestic remedies. In any event, they did
not indicate under what provision he should have brought the civil action
they referred to. Contrary to the case of Polonskiy (cited above, § 178), the
applicant in the present case did not complain about the initial attachment
order but about its extension by means of the judgment, that is, after the end
of the criminal proceedings. Moreover, the Government did not maintain
that the civil court could have lifted the attachment order made in the
criminal proceedings, in particular given that the applicant was the
defendant and not a third party in those criminal proceedings (see,
mutatis mutandis, Bokova, cited above, § 57). The Court notes that this
complaint was included in the points of appeal examined and dismissed on
18 March 2015 by the Supreme Court, which held that the continued
attachment was lawful. It appears from the parties’ submissions that the
assets in question have been neither confiscated nor released to date, and
that they remain under the same attachment order.
311. The Court finds that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
70 RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT
B. Merits
312. It is not in dispute between the parties that the second applicant was
the lawful owner of the seized funds and the car, or that they constituted his
and his wife’s “possessions” for the purposes of Article 1 of Protocol No. 1.
The trial court’s decision to attach these assets pending a possible civil
action for damages therefore constituted an interference with his right to the
peaceful enjoyment of his possessions.
313. The attachment order in respect of the second applicant’s assets
was a measure amounting to control of the use of property (see, with further
references, International Bank for Commerce and Development AD and
Others v. Bulgaria, no. 7031/05, § 123, 2 June 2016). According to the
applicant, the continued application of this measure after the end of the
criminal proceedings was unlawful.
314. The Court observes that the judgment of 24 July 2014 by which the
second applicant was convicted of having organised mass disorder did not
contain a decision to confiscate or to release assets seized in the course of
the criminal proceedings. Instead, it extended the validity of the attachment
order on the basis that his offence gave rise to a civil claim for damages. It
identified one private company, one municipal entity and the Ministry of the
Interior as eligible civil parties. However, neither the domestic court nor the
Government indicated the legal provision governing the continued
attachment order after the end of the criminal proceedings. Moreover, the
parties have not informed the Court of any civil proceedings against the
second applicant for the purpose of which the assets remained under
attachment. Finally, the Government did not specify what legal steps the
applicant could take to recover his possessions as a person convicted in the
criminal proceedings in question (see paragraph 310 above).
315. The Court concludes that the attachment of the second applicant’s
assets ordered in the judgment of 24 July 2014 was not based on clear and
foreseeable legal provisions. It was therefore unlawful.
316. Accordingly, the Court considers that in the present case there has
been a violation of Article 1 of Protocol No. 1 to the Convention as regards
the second applicant.
court hearings. However, having regard to all the material in its possession,
and in so far as these complaints fall within the Court’s competence, it finds
that they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. This part of the
application must therefore be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
A. Damage
326. The applicants did not make any claims under this head.
Accordingly, no award is called for.
C. Default interest
327. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
18. Dismisses, unanimously, the remainder of the applicants’ claim for just
satisfaction.
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 75
P.L.
J.S.P.
76 RAZVOZZHAYEV v. RUSSIA AND UKRAINE AND
UDALTSOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS
Introduction
1. One of the main complaints in the present case concerns the allegation
that Mr Razvozzhayev (the first applicant) was abducted in Ukraine by
Russian State agents and brought back to Russia, with the cooperation of the
Ukrainian authorities.
We voted with the majority for finding a violation of Articles 3 and 5 of
the Convention, by Russia and Ukraine, on account of the failure to carry
out an effective investigation into Mr Razvozzhayev’s allegations of
unlawful deprivation of liberty and inhuman and degrading treatment (see
operative point 7).
However, we believe that there is sufficient evidence in the file to allow
us to go further and to conclude that, besides this procedural violation, there
has also been a substantive violation of Articles 3 and 5 by both respondent
States. We thus respectfully disagree with the majority’s statement in
paragraph 174 of the judgment.
Conclusion
7. To sum up, we consider that the majority failed to draw all the
appropriate conclusions from the facts of the case. We are of the opinion
that both Russia and Ukraine were responsible for a substantive violation of
Mr Razvozzhayev’s rights under Articles 3 and 5.
80 RAZVOZZHAYEV v. RUSSIA AND UKRAINE AND
UDALTSOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS
12. We acknowledge that the Court has already stated that there might
have been a number of individuals in the crowd who contributed to the
onset of clashes between the protesters and the police (see
Yaroslav Belousov, cited above, § 179; Barabanov v. Russia, nos. 4966/13
and 5550/15, § 74, 30 January 2018; Polikhovich v. Russia, nos. 62630/13
and 5562/15, § 77, 30 January 2018; and Stepan Zimin v. Russia, nos.
63686/13 and 60894/14, § 77, 30 January 2018; see also paragraph 283 of
the judgment).
However, the mere fact that someone “contributed to the onset of
clashes” does not necessarily exclude that that person acted in a peaceful
way. The context is important.
13. The majority refer to the fact that during the trial against the
applicants a witness stated that Mr Razvozzhayev had had the intention to
break through the police cordon (see paragraph 284 of the judgment). That
witness was Mr Ponomarev, a State Duma Deputy for whom
Mr Razvozzhayev worked as an assistant. He stated “that he was the person
who had suggested during the sit-in that the applicants push the police
cordon back to the agreed limits of the meeting venue, and that he had told
the first applicant to find strong men for that purpose” (see paragraph 129 of
the judgment).
We do not think that this statement provides a firm basis for holding that
Mr Razvozzhayev’s conduct was not “peaceful”. First of all, Mr Ponomarev
spoke of pushing the police cordon back, not of breaking through the
cordon. Moreover, it is not clear why Mr Ponomarev instructed his assistant
to find strong men to push the police cordon back. It could have been
because of the congestion that was becoming more and more severe and the
corresponding need to open up the passage to the meeting area. In any
event, Mr Ponomarev’s statement can hardly be understood as an argument
in support of the view that Mr Razvozzhayev deliberately broke through the
cordon in order to start a conflict with the law-enforcement officers.
14. In short, we are not convinced that Mr Razvozzhayev displayed
conduct that placed his acts outside the scope of protection of Article 11.
At the very least, this is in our opinion a matter to be examined under the
merits of the complaint. It is for that reason that we voted against declaring
his complaint inadmissible.
.
82 RAZVOZZHAYEV v. RUSSIA AND UKRAINE AND
UDALTSOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS
from its settled practice, which is not to engage with questions that it has
already examined under other provisions of the Convention (see Centre for
Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC],
no. 47848/08, § 156, ECHR 2014).
4. Moreover, Mr Udaltsov should have offered some evidence to make
out a prima facie case. The Court has made it clear that applicants may rely
on inferences and “unrebutted presumptions of facts” and that it will be
more easily persuaded if the alleged purpose is particularly reprehensible or
the Convention right at stake is especially significant (see Merabishvili,
cited above, § 314).
5. Mr Udaltsov’s position as a political activist and a member of the
opposition to the government does not by itself warrant an examination
under Article 18 (ibid., § 323). Regrettably, he invoked Article 18 without
properly substantiating his claim. I therefore agree with the Court that it is
unnecessary to examine this aspect of his complaint.
RAZVOZZHAYEV v. RUSSIA AND UKRAINE
AND UDALTSOV v. RUSSIA JUDGMENT 85
APPENDIX
List of applications