Постановление ЕСПЧ от 20.09.2022

<Дело Теплицкая и Богач (Teplitskaya and Bogach) против России» (жалобы № 23506/15 и 38211/16) [англ.]

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<*> This judgment is final but it may be subject to editorial revision.

In the case of Teplitskaya and Bogach v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Georgios A. Serghides, President,

Anja Seibert-Fohr,

Peeter Roosma, judges,

and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the two applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») on 25 March 2015 and 19 May 2016 respectively by two Russian nationals, Ms Yana Igorevna Teplitskaya («the first applicant») and Ms Yekaterina Anatolyevna Bogach («the second applicant»), who were both represented before the Court by Ms K.A. Mikhaylova, a lawyer practising in St Petersburg;

the decision to give notice of the applications to the Russian Government («the Government»), represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov;

the parties' observations;

Having deliberated in private on 30 August 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The applicants attempted to participate in a public event in support of LGBTI people that was authorised to take place on 12 October 2013 in St Petersburg. The facts related to that event were examined by the Court in Berkman v. Russia (no. 46712/15, 1 December 2020). The event was disrupted by violent counter-demonstrators. The police present at the spot arrested a group of participants in the event, including the applicants who were then transferred to a police station and charged with disorderly misconduct (use of foul language), an offence under Article 20.1 of the Federal Code of Administrative Offences (see Berkman, cited above, §§ 5 — 11). On 21 November 2013 and 18 December 2013 respectively, the courts terminated the administrative proceedings against the second and first applicant for the lack of elements of an administrative offence in their acts.

2. On 24 February 2014 the first applicant lodged a civil claim against police and other authorities with the Primorskiy District Court of St Petersburg challenging the lawfulness of her arrest and detention at the police station and alleging that those infringed, among others, her rights to freedom of assembly and not to be discriminated against. On 24 April 2014 the Primorskiy District Court dismissed the first applicant's claim. The court considered that the first applicant's arrest and transfer to the police station had been lawful because she had refused to show her ID documents to the police. On 6 October 2014 the St Petersburg City Court upheld that judgment on appeal. The court stressed that there had been tension between the participants of the gathering and counter-demonstrators during the event on 12 October 2013 as well as breach of public order and that the first applicant's arrest and transfer to the police station had been justified for the purposes of facilitating subsequent administrative proceedings. The fact that these proceedings had later been terminated had not invalidated the lawfulness of the first applicant's arrest. On 6 February 2015 the St Petersburg City Court dismissed the first applicant's cassation appeal against the judgment of 24 April 2014 and the appeal decision of 6 October 2014.

3. On an unspecified date in 2014 the second applicant brought civil proceedings against the State. She claimed that her arrest at the venue of the gathering and transfer to the police station had been unlawful and that the police had failed to ensure public order during the gathering on 12 October 2013 and safety of its participants. She claimed non-pecuniary damage in the amount 225,000 Russian roubles (RUB; approximately 3,100 euros at the time (EUR)). On 16 December 2014 the Petrogradskiy District Court of St Petersburg partly granted the claim. The court found that the second applicant's arrest and transfer to the police station had been unlawful and awarded her RUB 2,000 (about EUR 28 at the time). The court dismissed the remainder of the second applicant's claims concerning police inaction for the lack of evidence. The second applicant's subsequent appeals against the judgment of 16 December 2014 were dismissed, with the final decision being delivered by the Supreme Court of Russia on 22 January 2016.

4. The applicants complained under Article 5 of the Convention that their arrest, transfer to the police station and subsequent detention there for several hours had been unlawful. They further complained under Article 11, taken alone and in conjunction with Article 14, that the authorities had failed to enable the public gathering to proceed peacefully, that their interference with the applicants' freedom of peaceful assembly had been arbitrary, and that the police arrested only the participants in the LGBTI public event and disregarded the breaches of public order by their opponents.

THE COURT'S ASSESSMENT

I. 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.

II. Alleged violations of Articles 5 § 1, 11 and Article 14 in conjunction with Article 11 of the Convention

A. Admissibility

6. The Government submitted that the first applicant had failed to exhaust domestic remedies in respect of all her complaints by lodging a cassation appeal against the judgment of 6 February 2015 by the St Petersburg City Court with the Supreme Court of Russia. They further submitted that both applicants had lost their victim status with regards to their Article 5 § 1 complaint because the courts discontinued their administrative offence cases (see paragraph 1 above) and the second applicant, in addition, was awarded compensation for her unlawful detention (see paragraph 3 above).

7. The Court observes that the first applicant lodged her application with the Court on 25 March 2015, that is (i) within six months after the appeal decision of 6 October 2014; and (ii) before the Court examined the amended two-layer cassation procedure in Abramyan and Others v. Russia ((dec.), nos. 38951/13 and 59611/13, §§ 76 — 96, 12 May 2015) in May 2015 and made available that decision to the public in June 2015. Thus, the first applicant has complied with the six-month rule in view of the state of the applicable and consistent case-law at the time (see, among many others, Uzbyakov v. Russia, no. 71160/13, § 72, 5 May 2020). She was not therefore required to lodge the first cassation appeal, which she did, however, out of prudence but to no avail. Yet it cannot be held against her — in terms of the requirement to exhaust domestic remedies — that she did not lodge the second cassation appeal before the Supreme Court of Russia. In any event, the Government have not specified whether, as of June 2015, the applicable time-limit for lodging such an appeal did not expire and whether the first applicant could therefore still avail herself of the remedy in question (see Kocherov and Sergeyeva v. Russia, no. 16899/13, §§ 67 — 68, 29 March 2016). Lastly, other demonstrators did lodge similar complaints before the Supreme Court but without any success. It would be excessive to require the first applicant to do the same in the circumstances of the case (see Mariya Alekhina and Others v. Russia, no. 38004/12, § 247, 17 July 2018). The Government's objection to this effect should therefore be dismissed.

8. As regards the Government's argument about the loss by the applicants of their victim status under Article 5 § 1 of the Convention, the Court observes the following. First, the courts, when discontinuing the administrative offence cases against the applicants, had only established the lack of elements of an administrative offence in their acts, but did not acknowledge the unlawfulness of their detention (see paragraph 1 above). The Court is not therefore satisfied that, absent such acknowledgment, discontinuation of the administrative offence proceedings against the applicants constituted adequate and sufficient redress in respect of the interference with their rights under Article 5 § 1 of the Convention (see, among many others, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006-V, and Blyudik v. Russia, no. 46401/08, §§ 49 — 50, 25 June 2019). Secondly, with respect to the second applicant the Court notes that even though the domestic courts in civil proceedings found that her deprivation of liberty on 12 October 2013 had been unlawful (see paragraph 3 above), the amount of EUR 28 awarded to her in respect of non-pecuniary damage cannot be considered appropriate and sufficient redress for the alleged breach of the Convention (see, for example, Gremina v. Russia, no. 17054/08, § 66, 26 May 2020, with further references). Both applicants can therefore still claim to be victims of the alleged violation of Article 5 § 1 the Convention. The Government's objection to this effect should be dismissed.

9. The Court finds that the applicants' complaints under Articles 5 § 1, 11 and 14 in conjunction with Article 11 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other grounds. Accordingly, they must be declared admissible.

B. Merits

10. The Court notes that the issues arising in the present case under Articles 11 and 14 of the Convention have been already considered and ruled upon by the Court in Berkman (cited above) that concerned the same public event. Having examined all the material before it, the Court does not see any reason to resolve the present case differently. It therefore finds, for the reasons advanced in Berkman (ibid., §§ 50 — 63), that there has been, in respect of both applicants, a violation of the respondent State's positive obligations under Article 11 of the Convention taken alone and in conjunction with Article 14, a violation of the respondent State's negative obligations under Article 11 of the Convention, and no violation of Article 14 taken in conjunction with negative obligations under Article 11 of the Convention.

11. The applicants' complaint under Article 5 § 1 of the Convention about their unlawful arrest falls under the well-established case-law of the Court. Having examined all the material before it, the Court concludes that it discloses a violation of Article 5 § 1 of the Convention in the light of its findings in Butkevich v. Russia (no. 5865/07, §§ 61 — 65, 13 February 2018). Having reached this conclusion, in the circumstances of this case the Court does not consider necessary to examine the merits of the applicants' complaint under Article 5 § 1 of the Convention concerning their delayed release from the police station (see Berkman, cited above, § 38, with further references).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12. The applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage. They did not claim costs and expenses.

13. The Government contested the applicants' claim as excessive.

14. Taking into account the sum already awarded by the domestic courts to the second applicant (see paragraph 3 above), the Court awards the first applicant EUR 9,750 and the second applicant EUR 9,700 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants on these amounts.

15. 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 5 § 1 of the Convention on account of each applicant's arrest;

4. Holds that there has been a violation of the respondent State's positive obligations under Article 11 of the Convention taken alone and in conjunction with Article 14;

5. Holds that there has been a violation of the respondent State's negative obligations under Article 11 of the Convention;

6. Holds that there has been no violation of Article 14 taken in conjunction with the State's negative obligations under Article 11 of the Convention;

7. Holds that there is no need to examine separately the merits of the applicants' complaint under Article 5 § 1 of the Convention concerning their detention at the police station;

8. Holds

(a) that the respondent State is to pay the first applicant EUR 9,750 (nine thousand seven hundred and fifty euros) and the second applicant EUR 9,700 (nine thousand seven hundred euros), plus any tax that may be chargeable, within three months, in respect of non-pecuniary damage, 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;

9. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 20 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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