79256/17;10927/20;13358/20;13782/20;30706/20;33467/20;5065/21

THIRD SECTION CASE OF KHARITONOV AND OTHERS v. RUSSIA (Applications nos. 79256/17 and 6 others – see appended list)             JUDGMENT   STRASBOURG 10 November 2022   This judgment is final but it may be subject to editorial revision. In the case of Kharitonov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Darian Pavli, President, Andreas Zünd, Frédéric Krenc, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 20 October 2022, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.  The Russian Government (“the Government”) were given notice of the applications. THE FACTS 3.  The list of applicants and the relevant details of the applications are set out in the appended table. 4.  The applicants complained of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings. Some applicants also raised other complaints under the provisions of the Convention. THE LAW JOINDER OF THE APPLICATIONS 5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 6 § 1 of the Convention 6.  The applicants complained principally of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings. Mr Gerbst (application no. 13782/20) also complained that he had been unable to confront the police officers who had recorded his arrest. The applicants relied, expressly or in substance, on Article 6 of the Convention, which reads as follows: “1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ... 3.  Everyone charged with a criminal offence has the following minimum rights: ... (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[.]” 7.  The relevant principles of the Court’s case-law concerning the requirement of impartiality under Article 6 § 1 of the Convention can be found in the leading case of Karelin v. Russia, no. 926/08, §§ 51-57, 20 September 2016, with further references). In that case the Court assessed the national rules of administrative procedure and concluded that statutory requirements allowing for the national judicial authorities to consider an administrative offence case which falls within the ambit of the Article 6 of the Convention under its criminal limb, in the absence of a prosecuting authority, was incompatible with the principle of objective impartiality set out in Article 6 of the Convention. 8.  Having examined all the material submitted to it, having dismissed the Government’s objection of non-exhaustion of domestic remedies (see Smadikov v. Russia (dec.), no. 10810/15, 31 January 2017) and having taken into account the issue of compliance with the six-month period under Article 35 § 1 of the Convention (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022, in which the Court addressed the COVID-related extension of the period in question), the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. 9.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. 10.  In view of the above findings, the Court does not consider it necessary to examine the remainder of Mr Gerbst’s submissions under Article 6 §§ 1 and 3 (d) of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11.  In applications nos. 10927/20, 13358/20, 13782/20, 30706/20 and 33467/20, the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see the appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well-established case-law (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019, concerning escorting and administrative arrest procedures; and Frumkin v. Russia, no. 74568/12, §§ 93-142, 5 January 2016, concerning disproportionate measures against organisers and participants of public assemblies). APPLICATION OF ARTICLE 41 OF THE CONVENTION 12.  Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 13.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Kuratov and Others v. Russia [Committee], nos. 24377/15 and 2 others, 22 October 2019), the Court considers it reasonable to award the sums indicated in the appended table. 14.  The Court further 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the complaints about the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings and other complaints raised under the well-established case-law of the Court, as listed in the appended table, admissible and decides that it is not necessary to examine separately the remainder of the complaints raised under Article 6 of the Convention in application no. 13782/20; Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings; Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see the appended table); Holds (a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 10 November 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Darian Pavli  Acting Deputy Registrar President       APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention (lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings) No. Application no. Date of introduction Applicant’s name Year of birth   Representative’s name and location Penalty Date of final domestic decision Name of court Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1]     79256/17 09/11/2017 Aleksandr Aleksandrovich KHARITONOV Vologin Aleksey Borisovich Volsk fine of RUB 30,000, suspension of the driving licence for 1 year 8 months 16/05/2017, Privolzhskiy Circuit Military Court   1,000     10927/20 07/02/2020 Andrey Nikolayevich TROFIMOV Memorial Human Rights Centre Moscow fine of RUB 15,000 08/10/2019 Moscow City Court   Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - Manifestation in support of Ivan Golunov Moscow on 12/06/2019 3,900     13358/20 03/03/2020 Filipp Petrovich CHERNENKO Memorial Human Rights Centre Moscow fine of RUB 15,000 12/09/2019 Moscow City Court Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - Arrest and detention on 12/06/2019 - Applicant was taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable on the spot to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva, cited above; and Ryabinina and Others v. Russia [Committee], nos. 50271/06 and 8 other applications  § 35, 2 July 2019)   Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - Manifestation in support of Ivan Golunov on 12/06/2019, Strastnoy boulevard, Moscow 3,900     13782/20 27/02/2020 Georgiy Konstantinovich GERBST Memorial Human Rights Centre Moscow fine of RUB 10,000 26/08/2019 Moscow City Court Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - Arrest and detention on 12/06/2019 - Applicant was taken to the police station as an administrative suspect: no evidence/assessment that it was impracticable on the spot to compile the offence record (Art. 27.2 § 1 CAO) and achieve the objectives set out in Art. 27.1 CAO, e.g. to establish the suspect’s identity (see Korneyeva, cited above, and Ryabinina and Others, cited above)   Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - Manifestation in support of a journalist; Moscow, Petrovka street 12/06/2019 3,900     30706/20 30/06/2020 Vyacheslav Gennadyevich ALEYNIK Mezak Ernest Aleksandrovich Nantes 20 hours of community service 18/12/2019, Supreme Court of the Komi Republic Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - disproportionate measures taken against the applicants as participants of peaceful assembly, namely the applicants’ administrative arrest and conviction for having participated in an unauthorised public event 3,900     33467/20 13/06/2020 (4 applicants) Viktor Karlovich KOZLOVSKIY   Galina Vladimirovna KUZNETSOVA   Aleksey Pavlovich KRYUKOV   Galina Ivanovna KRYUKOVA Mezak Ernest Aleksandrovich Nantes fine of  RUB 5,000 20/11/2019, Supreme Court of Komi Republic Art. 11 (2) - disproportionate measures against organisers and participants of public assemblies - disproportionate measures taken against the applicants as participants of peaceful assembly, namely the applicants’ administrative arrest and conviction for having participated in an unauthorised public event - Demonstration against the construction of SHIES dump on 27/08/2019 3,900     5065/21 06/01/2021 Aleksey Vladimirovich KYZENKOV Vlasov Aleksey Valeryevich Tula fine of RUB 9,000 06/07/2020, Tula Regional Court   1,000   [1] Plus any tax that may be chargeable to the applicants.