Постановление ЕСПЧ от 05.04.2022

<Дело Семенов (Semenov) против России> (жалоба № 39696/12) [англ.]

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

In the case of Semenov v. Russia,

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

Darian Pavli, President,

Peeter Roosma,

Mikhail Lobov, judges,

and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 39696/12) 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 14 May 2012 by a Russian national, Mr Andrey Aleksandrovich Semenov, born in 1979 and living in Dedovsk («the applicant») who was represented before the Court by Mr Lesnyak, a lawyer practising in Moscow;

the decision to give notice of the complaints concerning violations of the rights to freedom of expression and assembly and the right not to be discriminated against 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 Mr M. Vinogradov, his successor in that office, and to declare the remainder of the application inadmissible;

the parties' observations;

Having deliberated in private on 15 March 2022,

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

SUBJECT MATTER OF THE CASE

1. On 20 July 2012 the applicant participated in a demonstration in Moscow to raise public awareness of constitutional rights and freedoms. The demonstration had been approved by the authorities. During the demonstration, the applicant held a banner which read «Russia without Putin». He was supported by other participants. Police officers who were present on the spot repeatedly ordered the applicant to remove the banner. As the applicant refused to comply, he was arrested and taken to the police station for the purposes of compiling an administrative offence record. During the arrest, the applicant physically resisted the police officers and pushed them away.

2. On 21 July 2012 the justice of the peace of the 399th Circuit of the Zamoskvoretskiy District of Moscow found the applicant guilty under Article 20.2 § 5 of the Code of Administrative Offences («the CAO») for a breach of the procedure for holding a public event. The court found that «the banner displayed [by the applicant] was contrary to the declared aim of the demonstration and was clearly political in nature». The court fined the applicant 10,000 Russian roubles (RUB) (equivalent to 121 euros (EUR)). In a separate judgment delivered on the same day, the same court established that the applicant had refused to comply with the police officers' repeated orders to remove the banner and that he had physically resisted them during the arrest, in violation of Article 19.3 § 1 of the CAO (failure to comply with a lawful order of an official in connection with the exercise of his duties). The court sentenced the applicant to four days' administrative detention. On 7 September and 3 October 2012 the Zamoskvoretskiy District Court of Moscow upheld the above judgments on appeal.

3. The applicant was also administratively prosecuted and fined for taking part in the unauthorised public event in 2011. The relevant facts and complaint under Article 11 of the Convention are set out in the Appendix.

THE COURT'S ASSESSMENT

I. Alleged violation of Articles 10 and 11 of the Convention

4. The applicant complained that his arrest and the administrative offence proceedings against him had violated his rights to freedom of expression and peaceful assembly, contrary to Articles 10 and 11 of the Convention.

5. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

6. The Court will examine this complaint under Article 10 of the Convention, taking into account the general principles it has established in the context of Article 11 of the Convention (see Fáber v. Hungary, no. 40721/08, § 19 and §§ 32 — 41, 24 July 2012).

7. It has not been disputed by the parties that the police officers' orders to remove the banner, the applicant's arrest during the demonstration, and his subsequent convictions constituted an interference with his right to freedom of expression. That interference was based on section 6 (3) of the Public Events Act (no. FZ-54 of 19 June 2004), which provided that participants in a public event must comply with lawful police orders and follow the rules for the event. Even assuming that the interference pursued the legitimate aims of «prevention of disorder» and «the protection of the rights and freedoms of others» (compare Fáber , cited above, § 31), it remains to be ascertained whether it was «necessary in a democratic society».

8. The Court notes that during the demonstration the applicant displayed a banner which expressed his opinion on the President's policies, thereby contributing to an ongoing political debate on a matter of public concern. He acted peacefully and did not create any disturbance of public order (see Laguna Guzman v. Spain, no. 41462/17, §§ 33, 51 — 52, 6 October 2020, with further references, and, by contrast, Éva Molnár v. Hungary, no. 10346/05, § 41, 7 October 2008). There was no conflict between the applicant and the other participants in the demonstration because of the message he conveyed; nor was it suggested that such a conflict could emerge (see, by contrast, Fáber , cited above, §§ 53 — 58). On the contrary, the other participants in the demonstration supported the applicant (see paragraph 1 above). The police intervention was therefore triggered by the contents of the banner as such and not by the applicant's provocative or otherwise offensive conduct. The domestic courts justified the applicant's administrative convictions by mere reference to the «clearly political nature» of the banner and its deemed contradiction with the declared aim of the demonstration (see paragraph 2 above). Their judgments, however, contained no analysis as to why they viewed the «clearly political nature» of the banner as problematic, given that it contained no incitement to violence or rejection of democratic principles (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001-IX). Furthermore, the domestic courts omitted to indicate what the alleged differences were between the declared aim of the demonstration and the applicant's banner (see Sergey Kuznetsov v. Russia, no. 10877/04, § 45, 23 October 2008). In such circumstances, regard being had to the severity of the penalties faced by the applicant (see paragraph 2 above) and the fact that he had been removed from the demonstration venue, it cannot be said that the interference with his freedom of expression was necessary in a democratic society.

9. There has accordingly been a violation of Article 10 of the Convention interpreted in the light of Article 11.

II. Alleged violation of Article 14 of the Convention

10. The applicant further complained under Article 14 of the Convention taken in conjunction with Articles 10 and 11 that he had been discriminated against on account of his political opinion.

11. Having regard to its findings above, the Court does not find it necessary to continue a separate examination of this complaint (see Moscow Branch of the Salvation Army v. Russia, no. 72881/01, § 100, ECHR 2006-XI).

III. Other alleged violations under well-established case-law

12. The applicant also complained under Article 11 of the Convention about his administrative arrest and conviction for participation in the unauthorised public event on 31 August 2011 (for further details see the Appendix). This complaint, which falls under the well-established case-law of the Court, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 11 of the Convention in the light of its findings in Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 402 — 78, 7 February 2017).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

13. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage and 90,000 Russian roubles (approximately EUR 1,083) in respect of costs and expenses incurred before the Court.

14. The Government contested those claims.

15. The Court awards the applicant EUR 9,800 in respect of non-pecuniary damage, and EUR 850 in respect of costs and expenses incurred before the Court, plus any tax that may be chargeable to the applicant on these amounts.

16. 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

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds that there is no need to examine the complaint under Article 14 of the Convention;

4. Holds that there has been a violation of Article 11 of the Convention as regards the complaint raised under the well-established case-law of the Court;

5. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 9,800 (nine thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

6. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 5 April 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Appendix

Nature of the public event Location Date	Measures applied under the administrative offence procedure	Final domestic decision in the administrative offence procedure Date	Complaints under well-established case-law (violation)
Strategy-31 public event (rally in support of the freedom of peaceful assembly) Triumfalnaya Square, Moscow 31/08/2011	Administrative arrest and conviction under Article 20.2 § 2 of the Code of Administrative Offences, with the penalty of an administrative fine of RUB 500	The Tverskoy District Court of Moscow 30/11/2011	Article 11 — disproportionate measures taken against the applicant as a participant in a peaceful assembly, namely the applicant's administrative arrest and conviction for participating in an unauthorised public event (Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 402 — 78, 7 February 2017).

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