Unjustified continuation and duration of detention (21 months), credibility of witness with motivation for personal gain, conviction of peaceful anti-government protest organizers. The Court finds multiple ECHR violations and condemns!
Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia 19.11.2019 (no. 75734/12, 2695/15, 55325/15)
The case concerned the conviction of two men for organising “mass disorder” for their part in
May 2012 opposition protests and resultant disturbances in central Moscow, an incident which has
been at the centre of several earlier cases dealt with by the European Court of Human Rights.
The Court held, unanimously, that there had been several violations of the two applicants’ rights under the European Convention on Human Rights.
They included a violation of the first applicant’s rights under Article 3 (prohibition of torture and
inhuman and degrading treatment) and Article 5 (right to liberty and security) over a failure by
both Russia and Ukraine to carry out an effective investigation of arguable allegations that he had
been abducted by State agents of Russia while in Ukraine and returned to Russia, and, a violation of the second applicant’s rights protected by Article 11 (freedom of assembly) owing to his conviction for organising mass disorder. The Court rejected the complaint by the first applicant under this provision, finding that his actions did not fall within the notion of “peaceful assembly”.
The Court noted that the domestic courts had blamed the protesters for the violence and the second
applicant personally as an organiser, however, they had not assessed the authorities’ responsibility
for the rally deteriorating from its peaceful initial phase. In contrast, the Court had held in an earlier
case that tensions had arisen because the authorities had unexpectedly changed the venue for the
rally and had not communicated properly with the protesters. Furthermore, the second applicant
had never shown any violent intent and had instead called for calm.
The Court also found various other violations of the rights protected by Article 5, Article 6 (right to a
fair trial), Article 8 (right to respect for private life) and Article 1 of Protocol No. 1 (protection of
Article 5 par. 1, 3
Article 6 par. 1 and 6 par. (b) and (c),
Article 1 of the First Additional Protocol
The applicants, Leonid Razvozzhayev and Sergey Udaltsov, are Russian nationals who were born in
1973 and 1977 respectively and live in Moscow.
Mr Udaltsov was one of the organisers of a rally planned for 6 May 2012 against allegedly rigged
parliament and presidential elections. The rally was to proceed down several streets in Moscow and
end with a meeting at an area including the park at Bolotnaya Square and Bolotnaya embankment.
On the day of the march, which included thousands of people, the protesters found that the police
had blocked off the square, leaving access only to the embankment. Leaders of the rally, including
the second applicant, held a brief sit-down protest, while other participants tried to break through
the cordon around the square. The police eventually declared the meeting closed, with riot police being employed. There were also various confrontations between demonstrators and the police. The
second applicant and other leaders of the protest were arrested.
The authorities began an investigation into mass disorder. The second applicant was placed under
house arrest from February 2013 until his conviction at first-instance in July 2014.
The first applicant, a political activist who was an assistant at the time to a State Duma deputy, went
to Kyiv in October 2012 where he planned to apply for asylum. He alleged that he was abducted by
unidentified people, forced into a minibus and driven back to Russia against his will where he was
coerced into a making a confession that he had plotted political unrest and violence.
In July 2014 the applicants were found guilty of organising mass disorder on 6 May 2012 and each
sentenced to an aggregate of four and half years in prison. Their appeals were rejected, ending with
the Supreme Court declining in January 2016 to hold supervisory review proceedings of their cases.
THE DECISION OF THE COURT
Article 3 and Article 5
Mr Razvozzhayev stated that he had been abducted in October 2012 by unidentified men acting on
behalf of the Russian State and had been transferred illegally across the Ukraine-Russia border. He
had not voluntarily left Ukraine, where he had planned to apply for asylum. Neither Ukraine nor
Russia had carried out an effective investigation into his allegations.
The Ukrainian Government at first contended that the authorities had investigated the incident but
made no further comment after the investigation was subsequently re-opened. The Russian
Government contested his allegations, stating that he had returned voluntarily.
The Court found that there was no evidence that the abductors had acted on behalf of the Russian
Government or that the Ukrainian authorities had been involved in his transfer back to Russia.
However, Mr Razvozzhayev had had an arguable claim of abduction and ill-treatment and neither
country had taken the necessary steps to look into his case, leading to a violation of the procedural
guarantees of Article 3 and Article 5 by both countries.
The Court further rejected as manifestly ill-founded his complaint of a violation of Article 3 owing to
an alleged lack of medical care during his long period of pre-trial detention, to a decline in his health
caused by an overly intensive schedule of court hearings and to conditions in the court.
The Court rejected as manifestly ill-founded a complaint by Mr Razvozzhayev under Article 5 § 1 that
the authorities had not taken account of the period of his abduction or another period related to an
incident in 1997 in calculating the term of his pre-trial detention.
However, it noted that he had been held in custody for one year and nine months. While the charges
of carrying out acts of mass disorder could have justified the initial period of his detention, the Court
had no grounds to accept that risks, such as his reoffending or influencing witnesses, could not have
been dealt with by other preventive measures. There had thus been insufficient grounds to keep him
detained for such a long period and there had been a breach of Article 5 § 3.
Mr Udaltsov complained of unlawful and lengthy house arrest before his trial. The Government
argued that the measure had been necessary as he had breached a previous undertaking not to
leave Moscow and to behave properly, in particular as he had taken part in other protests.
The Court noted that he had been held under house arrest for one year and five months and found
that the imposition of the measure had been justified under Article 5 § 1 (c) as a way to prevent him
offending, given his conduct at public assemblies during the period of the previous undertaking.
There had therefore been no violation of that provision.
However, that reason had only been sufficient for the first two months of house arrest and the five
subsequent extension decisions had not been properly justified. The courts had relied on reasons
given in the first decision without reviewing them and had moreover rejected his offer of bail with
only a formulaic response. There had therefore been a violation of Article 5 § 3 of the Convention.
The Court examined three admissible complaints under this provision: about testimony by a witness
originally due to be tried with the applicants but whose proceedings had been disjoined and who
had been convicted separately under a plea-bargaining agreement; of restrictions on Mr Razvozzhayev because he had been held in a glass cabin during his trial; and that the schedule of the hearings had left him too tired to take part in the trial effectively.
The Court found that the decision to disjoin the proceedings against a man who had later become a
witness against them had not involved an assessment of the countervailing interests or any
consultation with the two applicants to allow them to object. The witness’s credibility in the case
against the applicants had also been undermined because he had been forced to maintain the
statements he had made to negotiate the reduction of his sentence while not being under oath.
Furthermore, the court in the applicants’ case had had an incentive to uphold the findings made
against the witness although those findings had not been scrutinised in an adversarial manner. Both
applicants had thus suffered a violation of their rights under Article 6 § 1.
The Court applied earlier case-law to Mr Razvozzhayev’s being confined in a glass cabin during the
five months of the trial, finding that he had suffered unnecessary restrictions. That had led to a
breach of his rights under Article 6 § 1 in conjunction with Article 6 § 3 (b) and (c).
As to the intensity of the schedule of the hearings, the Court found that the domestic court had not
given proper consideration to the first applicant’s complaints, looking only at the period spent in
court and not including the time taken to transfer him to and from his place of detention. The whole
process had cumulatively been exhausting and had seriously affected his ability to take part in the
proceedings. He had consequently not had adequate facilities to prepare his defence, undermining
the requirements of a fair trial and equality of arms and breaching Article 6 §§ 1 and 3 (b).
The Government had given no reason why Mr Razvozzhayev had not been allowed to visit his sick
mother. He had also not been permitted to attend her funeral, although it was in Moscow where he
was being held, with the Government citing a lack of time for the necessary arrangements.
The Court noted that people being held in detention or prison were entitled to maintain their family
lives, although there was no unconditional right to be able to attend a funeral. However, domestic
authorities could only refuse an individual the right to attend a parent’s funeral if there were
compelling reasons for such a refusal and no alternative solution could be found.
In Mr Razvozzhayev’s case, the refusal had not been based on an assessment of his individual
situation, in particular the fact that he had not been able to see his mother before her death. The
issue of time constraints was not a sufficient reason for the refusal. Mr Razvozzhayev had therefore
suffered a violation of his rights under Article 8.
As to his placement in a prison far from his place of residence, the Court noted that it had examined
such questions before and had found violations of the Convention owing to a lack of adequate legal
protection against possible abuse and because the applicable legislation did not satisfy the “quality
of law” requirement. It saw no reason to find differently in this case and held that there had been
another violation of Article 8 owing to Mr Razvozzhayev having to serve his sentence in Krasnoyarsk.
Article 10 and Article 11
The Court considered these complaints mainly under Article 11 as reflecting restrictions of the right
to freedom of peaceful assembly. This case was also different from others about Bolotnaya Square
as it concerned allegations of the organisation of mass disorder rather than participation in it.
The Court adhered to its finding in previous Bolotnaya cases, such as Frumkin and Others v. Russia,
that the protesters’ sit-in had begun because of the unexpected change of the venue layout, that the
authorities had not made enough of an effort to communicate with the organisers, and that
breaking through the police cordon had not been confirmed as the organisers’ desired outcome.
At the same time, Article 11 protected peaceful assembly and it had accepted that some of the
protesters had contributed to the onset of clashes with the police and the deterioration of the
assembly’s peaceful character.
As for Mr Razvozzhayev, he had been found guilty of leading a number of individuals to break
through the police cordon, as confirmed by witnesses, which had led to an escalation of violence at a
crucial moment, triggering the onset of clashes. The Court therefore found that his actions fell
outside the notion of “peaceful assembly” and it rejected his complaint under Article 11.
In contrast, that provision was applicable to Mr Udaltsov, who had not shown any violent intentions
with his call for a sit-down protest and to set up an illegal campsite.
The Court noted that he had been sentenced to four years and four months prison for organising
mass disorder, to be served concurrently with a sentence of four years for organising similar acts
elsewhere. The courts had found that he had been responsible for the stand-off between protesters
and the police at Bolotnaya Square as part of a plan to spread the protest outside the permitted area
and to set up a long-term protest camp in the park.
However, the Court reiterated its findings that the authorities themselves had had some
responsibility for the situation, while the domestic judgments on Mr Udaltsov had not made any
attempt to examine the extent of that responsibility for the events at the square.
Furthermore, none of his actions or statements had incited violence as he had repeatedly called for
calm. Nor could violent intent be found in the charges against him over other protests. The
measures against him had also had a chilling effect on others’ readiness to attend demonstrations
and take part in open political debate.
The Court concluded by finding that the severity of the penalty imposed on Mr Udaltsov, combined
with the courts’ lack of an assessment of the authorities’ responsibility, meant that his conviction
had not been proportionate to the legitimate aim of preventing disorder and crime and protecting
others’ rights. There had therefore been a violation of Article 11.
The Court reiterated that this provision came into play where it found that a restriction on an
applicant which was not in line with the Convention was a fundamental aspect of a case. However, it
found that that was the not case in this instance, based on the parties’ submissions being essentially
the same as those made under Article 10 and Article 11. There was no separate issue under this
provision and it was not necessary to carry out a separate examination.
Article 1 of Protocol No. 1
The Court noted that an attachment order on Mr Udaltsov’s assets had remained in place after the
end of the criminal proceedings as the trial court had found that his offence gave rise to a civil claim
for damages. However, the court had not identified which legal provision governed the extended
attachment order; nor had the Government provided any information about any civil proceedings or
how Mr Udaltsov, as someone who had been convicted in the criminal proceedings, could have
recovered his possessions.
It concluded that there had been violation of Article 1 of Protocol No. 1 to the Convention as the
attachment had not been based on clear and foreseeable legal provisions and had been unlawful.
Just satisfaction (Article 41)
The Court held that Russia was to pay the first applicant 11,000 euros in respect of non-pecuniary
damage and that Ukraine was to pay him EUR 4,000.
It held that Russia was to pay the second applicant EUR 9,000 in respect of non-pecuniary damage(echrcaselaw.com).