The violent arrest of a lawyer-protester by police constituted degrading treatment. ECHR violations due to arrests and overnight detention of protesters
JUDGMENT
Navalnyy and Gunko v. Russia 10.11.2020 (app. no. 75186/12)
SUMMARY
Two protesters were arrested in Bolotnaya Square in Russia in May 2012 during a political demonstration against the government. Their overnight detention in a police station and administrative conviction for violating legal police orders.
One of the protesters, Aleksey Navalnyy, a lawyer and political activist, claimed in his application before the ECtHR that a police officer had used excessive force during his arrest. Both protesters also claimed that their arrest and overnight detention was unjustified and arbitrary, that the administrative proceedings against them were unfair, that the dissolution of the demonstration, their arrest and subsequent conviction were disproportionate and that these violations of their rights were intended to undermine the freedom of assembly.
Opposition protests in May 2012 and the ensuing unrest in central Moscow have been at the heart of many previous cases before the European Court of Human Rights.
The Court unanimously held that Mr Navalnyy had been subjected to degrading treatment (Article 3 of the ECHR) for the police brutality against him. A video of his arrest was posted on the internet. The footage showed that the violence used by the police, turning his hand and making him scream, was not absolutely necessary to persuade him to come to the police station as he had not shown visible resistance.
With regard to the remaining complaints, the Court found violations of both applicants: (a) the right to security and liberty (Article 5), (b) the right to a fair trial (Article 6 § 1) as regards the fair nature of the administrative because the courts ruled unilaterally on the basis of police statements and documents refusing to accept evidence from the applicants and (c) freedom of assembly (Article 11) because the first applicant’s brutal arrest and the applicants’ administrative convictions could participation in political protest rallies.
The ECtHR awarded EUR 8,500 and EUR 7,500 respectively to the applicants for non-pecuniary damage.
PRINCIPAL FACTS
The applicants, Aleksey Anatolyevich Navalnyy and Vadim Borisovich Gunko, are Russian nationals,
who were born in 1976 and 1960, respectively, and live in Moscow.
The applicants took part in a demonstration on 6 May 2012 at Bolotnaya Square to protest against
the allegedly rigged presidential elections. The officially approved protest was peaceful until the
police took measures to control the crowd, resulting in a standoff and clashes.
Both applicants were arrested during the commotion, taken to a Moscow police station, placed in
administrative detention and charged with disobeying a lawful police order. They were brought
before a judge the next day and convicted as charged.
The judge considering Mr Navalnyy’s case found that he had called on protesters not to leave the
venue after the assembly and to ignore police orders. He was fined. The judge ruling on Mr Gunko’s
case found that he had attempted to break through a police cordon, acted aggressively, shouted
slogans, and attempted to obstruct traffic. He was sentenced to 24 hours’ administrative detention.
Both applicants unsuccessfully appealed against those decisions.
Throughout the proceedings Mr Navalnyy submitted that he had been arrested on his way up to a
stage where he was about to give a speech, without being given any prior warning or orders from
the police. Providing a video recording from a video-sharing website showing his arrest, he alleged in
particular that a police officer had pushed him all the way to the police station while twisting his arm
and forcing him to bend forward, even though he had not put up any resistance. The appellate court
ultimately dismissed his allegations because the recording did not indicate the date and time when it
had been made, as well as rejected his request to summon and question the two police officers on
whose statements his conviction had been based.
Similarly, Mr Gunko maintained during the proceedings that he had received no prior police warning
and had shown no resistance. He had simply been trying to leave the demonstration when he had
been caught up in an area cordoned off by the police and therefore closed to traffic.
Mr Navalnyy lodged a complaint with the authorities that a police officer had used excessive force
during his arrest by twisting his arm, causing him severe physical pain. Enquiries were conducted as
a result but no criminal proceedings have ever been opened into his allegation.
Both applicants complained of a breach of their rights under Articles 5 § 1 (right to liberty and
security), 6 § 1 (right to a fair trial), 11 (freedom of assembly and association) and 18 (limitation on
use of restrictions on rights). They alleged in particular that their arrest and overnight detention had
been unjustified and arbitrary; that the administrative proceedings against them had been unfair;
that the dispersal of the demonstration, their arrest and ensuing conviction had been
disproportionate; and, that those breaches of their rights had been intended to undermine their
right to liberty and freedom of assembly.
Also relying on Article 3 (prohibition of inhuman or degrading treatment), Mr Navalnyy argued that
the recourse to physical force by the police during his arrest had not been justified and had
amounted to ill-treatment,
THE DECISION OF THE COURT…
Article 3
The Court examined Mr Navalnyy’s complaint that during his arrest a police officer had twisted his
arm with such force as to make him scream. It observed that nothing in the video footage suggested
that restraining Mr Navalnyy in that way had been indispensable for bringing him to the police
station. His arrest had been carried out by a group of well-equipped police officers, and he had not
put up any visible resistance to them.
Moreover, the authorities had limited themselves to conducting enquiries into Mr Navalnyy’s
complaint and had refused to investigate the alleged ill-treatment in criminal proceedings.
The Court therefore concluded that it had not been convincingly shown that using physical force had
been necessary. Such use of force had diminished Mr Navalnyy’s human dignity and had amounted
to degrading treatment, in violation of Article 3 of the Convention.
Article 5 § 1
As concerned the applicants’ arrest, the Court observed that they had first been taken to the police
station for the purpose of drawing up an administrative-offence record. It accepted that in the
context of the general commotion which had been happening at Bolotnaya Square, the police could
hardly have drawn up the records on the spot.
However, once the administrative-offence records had been drawn up, the applicants could have
been released. They had instead been held in administrative detention for approximately 18 and 20
hours respectively, without any explicit reasons.
The Court therefore considered that both applicants’ administrative detention had been unjustified
and arbitrary, in violation of Article 5 § 1 of the Convention.
Article 6 § 1
As to the fairness of the administrative proceedings, the Court noted in both cases that the courts
had based their judgments exclusively on standardised documents submitted by the police, refusing
to accept additional evidence or argument.
Indeed, the main evidence against Mr Navalnyy, namely written statements by police officers, had
not been tested in judicial proceedings as the courts had refused to summon the officers. Such a
failure ran counter to the fundamental principles of criminal law.
Likewise, the courts had refused to verify Mr Gunko’s statement that there had been no traffic,
limiting the scope of the administrative case to his alleged disobedience.
The Court therefore concluded that the administrative proceedings against the applicants, taken as a
whole, had been conducted in violation of their right to a fair hearing guaranteed by Article 6 § 1 of
the Convention.
Article 11
Firstly, the Court found that the domestic authorities had failed to comply with their duty under the
European Convention to ensure the peaceful conduct of the assembly at Bolotnaya Square, reaching
the same conclusion as in the case of Frumkin v. Russia (no. 74568/12).
Secondly, the Court examined the applicants’ arrests and convictions, finding that such measures
had amounted to an interference with their right to freedom of assembly.
To justify having taken such measures, it had been up to the domestic courts to establish the key
facts in the administrative proceedings against the applicants. However, the courts had neither established whether Mr Navalnyy had been aware of the official order to disperse nor addressed Mr Gunko’s explanation that he had simply been trying to go home and had got caught up in the
cordoned-off area. The authorities had therefore failed to demonstrate that the applicants’ arrest
and conviction had been “necessary in a democratic society”.
Moreover, Mr Navalnyy’s brutal arrest, and both applicants’ administrative convictions, had to have
had a chilling effect, discouraging them and others from attending protest rallies or from engaging
actively in opposition politics.
There had accordingly been a violation of Article 11 of the Convention in respect of both applicants.
Article 18
The Court held that there was no need to examine the applicants’ complaints under Article 18 of the
Convention.
Article 41 (Just satisfaction)
The Court held that Russia was to pay Mr Navalnyy 8,500 euros (EUR) and Mr Gunko EUR 7,500 in
respect of non-pecuniary damage. The Court rejected each applicant’s claim for costs and expenses.
