Постановление ЕСПЧ от 06.10.2020
Актуально на 04.11.2026.
Как цитировать: Постановление ЕСПЧ от 06.10.2020. 66314/11. 06.10.2020. https://bukva.ai/docs/postanovlenie-6631411
<Дело Демин (Demin) против России> (жалоба № 66314/11) [англ.]
<*> This judgment is final but it may be subject to editorial revision.
In the case of Demin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
and Olga Chernishova, Deputy Section Registrar,
the application (no. 66314/11) 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») by a Russian national, Mr Aleksandr Alekseyevich Demin («the applicant»), on 7 October 2011 (together with additional complaints lodged on 30 November 2012 and 15 January 2013);
the decision to give notice to the Russian Government («the Government») of the complaints under Articles 5, 6, 10, 11 and 13 of the Convention and Article 2 of Protocol No. 4 to the Convention and to declare inadmissible the remainder of the application;
Having deliberated in private on 15 September 2020,
Delivers the following judgment, which was adopted on that date:
1. The present case concerns the applicant's participation in two demonstrations in 2011 and 2012 and the length of two sets of proceedings.
2. The applicant was born in 1954 and lives in Syktyvkar, in the Komi Republic, Russia. He was represented until 2019 by Mr I. Demin, a lawyer practising in Syktyvkar.
3. The Russian Government («the Government») were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Solo demonstration on 10 December 2011
5. At 2 p.m. on 10 December 2011 the applicant held a solo demonstration, displaying placards reading «We stand for fair elections» and «Shame on the elections in Komi». At 2.25 p.m. he was approached by patrol officers P. and Z., who asked him to show his identity documents.
6. A report drawn up by officer P. indicates that he had been instructed to check a person standing next to a block of flats and wearing placards on his front and back. P. had arrived, had «explained the reason for his presence» and had required the applicant to show an identity document. The applicant had refused to give his name or show any identity document. Having consulted the officers' superior, P. had received an order (apparently from the local police station) to take the applicant to the police station for identification. The applicant had then identified himself. After that, P. had received an order to escort the applicant as a possible suspect in connection with a theft. P. had then handed over the applicant to an officer who had arrived in a police vehicle.
7. Patrol officer Z. made a report in similar terms.
8. Senior officer M.'s report indicates that he had been on duty at the town police department and had received a radio communication, apparently from officer P. The latter had told him over the radio that the applicant had not identified himself; M. had then asked him to read out the contents of the placard, and had sent a vehicle to escort the applicant to the town police department for identification. Later on, M. had learnt that the applicant had actually been taken to the local police station on account of a profile indication in connection with a criminal offence.
9. No record of the escorting of the applicant to the police station or of his arrest was compiled. According to the police station logbook, the applicant was admitted there at 3 p.m. He was then taken to the town police department as he resembled the profile of a suspect (Caucasian appearance, around 50 years old) in connection with the theft of a mobile phone from a private vehicle in August 2011. He was made to give fingerprints and be photographed against his will (according to the applicant). As it was concluded that he had not been involved in the theft, he was allowed to leave at or around 3.30 p.m.
10. The applicant sued the police in relation to the above-mentioned actions. On 17 July 2012 the Syktyvkar Town Court of the Komi Republic dismissed his claims. The court considered that the police officers had acted in compliance with the Police Act when they had taken the applicant to the police station. On 13 September 2012 the Supreme Court of the Komi Republic upheld that judgment.
II. Solo demonstration on 24 February 2012
11. On 24 February 2012 the applicant staged a solo demonstration at Stefanovskaya Square in Syktyvkar holding a placard with the phrase «Putin, go away!»
12. It appears that at around 9.20 a.m. the applicant was taken to the police station, on suspicion of an offence under Article 20.2 of the Federal Code of Administrative Offences (CAO). According to the Government, the arresting officer had no statutory authority to compile an offence record on the spot for this type of offence (pursuant to the Ministry of the Interior Decree no. 444 of 2 June 2005). The applicant spent three hours at the police station.
13. On 5 May 2012 the justice of the peace convicted him under Article 20.2 § 2 of the CAO because he had been standing less than 150 metres from a court building, whereas the Public Events Act prohibited public events in the immediate vicinity of court buildings (see, for relevant national legislation, Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 223 and 247, 7 February 2017). The applicant was ordered to pay a fine of 1,000 Russian roubles (RUB) (approximately 24 euros at the time when it was due). On 6 June 2012 the Syktyvkar Town Court upheld the judgment.
14. On 30 March 2004 the authorities instituted criminal proceedings against K. and B., who were accused of causing bodily injuries to the applicant (Article 115 of the Criminal Code).
15. On 7 September 2004 the investigation in respect of B. was disjoined, and a new investigative file (no. 2971501) was created for offences under Articles 115 and 213 of the Criminal Code. On 9 September 2004 the investigation was suspended because B.'s whereabouts had not been determined.
16. Following the Court's request, in 2019 the applicant submitted to the Court a document dated 17 September 2004, which was addressed to investigator Ka. and the Syktyvkar Town Court. This document was entitled «Civil claims for non-pecuniary damage within criminal case no. 2-387/2004» and contained a claim for RUB 100,000 against B. The document bore a stamp «Copy». According to the applicant, he had lodged that claim within the investigator dealing with the investigation against B. and had sought that that claim be admitted to the investigative file.
17. In November 2004 the supervising prosecutor ordered the resumption of the investigation, including the taking of measures to determine B.'s whereabouts. A request to that effect was made to a local authority but it was not complied with. In December 2004 a further decision to suspend the investigation was issued. It was then quashed and the resumption of the investigation was ordered. B.'s whereabouts were determined in May 2005.
18. In the meantime, a case against K. was sent for trial before a justice of the peace. On 19 April 2005 the justice of the peace discontinued the proceedings against K. on a charge under Article 115 § 1 of the Criminal Code, noting the settlement reached between the parties.
19. After May 2005 B. did not attend interviews with the investigator. The investigation in respect of B. was again suspended in March 2006 but was then resumed in June 2006. By a decision of 29 December 2006 the regional prosecutor upheld a complaint by the applicant and acknowledged that the investigation had not been carried out properly. By a judgment of 19 November 2007 the Syktyvkar Town Court upheld a further complaint by the applicant and declared that the investigators' inaction in pursuing the investigation had been unlawful. On 15 January 2008 the Regional Court of the Komi Republic upheld that judgment. On 29 November 2010 the case was discontinued because of the expiry of the time-limit for prosecution. The applicant was informed accordingly soon thereafter.
20. In the meantime, on 1 January 2004 the applicant had been involved in a traffic accident. The applicant applied to the police for the institution of administrative-offence proceedings against the owner of the other vehicle. No proceedings were instituted. An internal inquiry, carried out in September 2005, revealed that the relevant file had been lost. It appears that the applicant learnt about the results of the inquiry soon afterwards.
C. Compensation case
21. In September 2010 the applicant brought civil proceedings under Articles 1070 and 1100 of the Civil Code seeking RUB 25,000 in compensation for non-pecuniary damage on account of the length of the criminal investigation and RUB 5,000 on account of the loss of the file in the CAO proceedings. On 27 January 2011 the Syktyvkar Town Court awarded him RUB 5,000 and RUB 2,000 respectively (equivalent to EUR 123 and 49 at the time). On 11 April 2011 the Supreme Court of the Komi Republic upheld that judgment. The payment of the sums awarded was completed on 5 July 2011.
22. Under the Police Act (Federal Law no. 3-FZ of 7 February 2011, as in force at the relevant time), the police are empowered to check an individual's identity documents where there are reasons to suspect the person of a criminal offence or if his or her name is on a wanted persons list; where there is a reason for prosecuting him or her for an administrative offence; or where there are other grounds, provided for by federal law, for arresting the person (section 13 of the Act). The police are also empowered to take the person to a police station in order to decide whether he or she should be arrested, if that cannot be done on the spot (section 13(13) of the Act), and to apply measures listed in Article 27.1 of the CAO, such as administrative escorting (административное доставление) or administrative arrest (административное задержание) (section 13(8) of the Act).
23. It is appropriate to take into account the statutory conditions, aims and grounds for taking a person to a police station (for instance, by way of administrative escorting), as well as the specific circumstances when such a measure is applied. Thus, any such measure should not be arbitrary and should «take account of proportionality as regards the scope of limitations on individual rights (for instance, as the case may be, freedom of expression or freedom of assembly) vis- \text{а} -vis the actual necessity arising from the circumstances, as well as the practicability of attaining the aim pursued by the measure» (Ruling no. 8-P of 17 March 2017 by the Russian Constitutional Court in relation to section 13(13) of the Police Act of 2011). After a record of escorting has been compiled and if the grounds for escorting are no longer compelling, the person must be released without delay. Continued retention of the person in that case may become arbitrary, thus violating his or her right to liberty and personal security as protected by Article 22 of the Constitution and Article 5 of the Convention. Individuals have the right to challenge the escorting measure applied to them (ibid.).
II. Prosecution of criminal offences
24. Article 21 § 2 of the Russian Constitution provides that no one may be subjected to torture, violence or any other cruel or degrading treatment or punishment.
25. Article 115 of the Criminal Code punishes (by a fine, community work or detention) the intentional infliction of minor damage to health.
26. Under Article 44 of the Russian Code of Criminal Procedure as in force at the material time, a «civil claimant» (гражданский истец) could lodge a claim for compensation in respect of pecuniary or non-pecuniary damage if he or she considered that such damage had been caused to him or her as a direct result of a crime. An inquirer, investigator, prosecutor or judge had to issue a decision recognising a person as a civil claimant. A claim for compensation could be lodged following the institution of criminal proceedings until the completion of the hearing before the trial court.
27. Pursuant to Article 20 §§ 2 and 4 of the Criminal Code as in force at the material time, an offence under Article 115 of the Code was classified as an offence subject to private prosecution, for which proceedings were only instituted upon a complaint by a victim (except for vulnerable victims dependent on the perpetrator) and had to be discontinued if the victim settled with the defendant. In April 2007 this Article was amended to state that an offence under Article 115 § 1 of the Code was classified as an offence subject to private prosecution, for which proceedings were only instituted upon a complaint by a victim (except for vulnerable victims, such as those who were dependent on the perpetrator or could not exercise their own rights, for instance where information about the perpetrator was unknown) and had to be discontinued if the victim settled with the defendant.
28. Referring to Articles 10 and 11 of the Convention, the applicant complained about the termination of his solo demonstration on 10 December 2011 when he had been escorted to the police station and had had his fingerprints and photograph taken there, and also about his arrest and conviction in relation to his solo demonstration on 24 February 2012.
29. The Court considers that the complaint falls to be examined under Article 10 of the Convention, the relevant parts of which read as follows:
«1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority...»
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.»
30. The Government argued that the applicant's complaint relating to the demonstration on 24 February 2012 (the judgment of 5 May 2012 as upheld on appeal on 6 June 2012, see paragraph 13 above) was out of time, being received by the Court on 21 December 2012.
31. The applicant submitted that the complaint had been lodged in time.
32. The Court notes that the application form in which a complaint on this subject was raised for the first time was dispatched to the Court on 30 November 2012, according to the postmark on the envelope. Thus, the complaint was raised before the Court in time.
33. The Court notes that the complaints relating to the events on 10 December 2011 and 24 February 2012 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
(a) Regarding the events on 10 December 2011
34. The applicant alleged that Russian law did not require the mandatory possession of an identity document; the police's power to carry an identity check by requiring such a document to be presented could only be lawful in the circumstances listed in the Police Act (see paragraph 22 above). The applicant had provided officer M. with information about his identity when requested to do so at the venue of his solo demonstration. The officer had immediately ascertained that the applicant was not on any wanted list. The officers had then reported the contents of the applicant's placard to the police station. Thereafter, the applicant had been escorted to the police station, thereby putting an end to his solo demonstration. Thus, there had been «interference» within the meaning of Article 10 § 1 of the Convention. This «interference» had been unlawful since no written record had been compiled in respect of the escorting procedure and the applicant's ensuing short retention in the police station. Nor had it pursued any legitimate aim or been proportionate.
35. The Government argued that the applicant had been taken to the police station because he resembled the profile of a person implicated in the criminal theft of a mobile telephone and for the purpose of confirming his identity, rather than in connection with the exercise of his freedom of expression by way of a solo demonstration. Thus, there had been no interference under Article 10 of the Convention. As to the substance of the complaint, the police had acted within their statutory powers (see paragraph 22 above) and otherwise in compliance with the applicable procedure. As the applicant had not been escorted under the CAO on this occasion, its provisions relating to the compilation of a written record were not relevant in this context.
(b) Regarding the events on 24 February 2012
36. The applicant argued that he had positioned himself some 90 metres from the official building, the area in question not being considered part of the premises of the regional Constitutional Court. In any event, the applicant's solo demonstration had been peaceful, without causing any threat to public safety or impeding the work of that court.
37. The Government's submissions were similar to their position on the relevant aspect as summarised in Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 398 — 99, 7 February 2017.
(a) Solo demonstration on 10 December 2011
38. It is uncontested that the applicant had no identity document on him to present to the police officers who approached him during his solo demonstration. It is in dispute between the parties, however, whether the applicant was taken to the police station because of his ongoing solo demonstration (that is, taking into account the content of his expression as presented on his placard) rather than for another extraneous reason (see, by way of comparison, Primov and Others v. Russia, no. 17391/06, § 102, 12 June 2014, and Nikolayev v. Russia [Committee], no. 61443/13, § 56, 12 February 2019).
39. The Court reiterates that the arrest and detention of protesters may constitute an interference with the right to freedom of expression (see Dilek Aslan v. Turkey, no. 34364/08, § 67, 20 October 2015 and references therein). The Court notes that the reason given for escorting the applicant to the police station was the suspicion that he might have committed the theft of a mobile telephone several months previously. That suspicion appeared to be solely based on the profile indicating «a Caucasian man, around 50 years of age». The applicant was 57 years old at the time and is a man of Caucasian origin. However, it remains unclear whether any other, more specific, traits served as a basis for the suspicion against him. In addition, it was confirmed that he was not on any wanted list in relation to the theft or for any other reason. It appears that the police showed an interest in the applicant on account of the content of the message displayed on his placard and that the theft-related justification was put forward later on, apparently during the investigation into the applicant's complaints (see paragraph 8 above). In the absence of any further material, the Court is not satisfied that the circumstances as established before it disclose a genuine consideration put forward in good faith pertaining to the investigation of a criminal offence. The Court thus considers that the escorting of the applicant to the police station, entailing the termination of his solo demonstration, constituted «interference» with his freedom of expression in the present case (compare with Novikova and Others v. Russia, nos. 25501/07 and 4 others, §§ 178 — 79, 26 April 2016, and see Dilek Aslan, cited above, § 68).
40. The Court considers that the other relevant factual and legal aspects of the applicant's complaint are similar to those it examined in Novikova and Others (cited above, §§ 149 — 84 and 216 — 25), in which it concluded that the «interference» had not been shown to be «necessary in a democratic society». Having examined the parties' submissions and the available material, the Court concludes that those findings are pertinent in the present case and finds no sufficient reason to depart from them (see, in the same vein, Nikolayev, cited above, § 57).
41. Having reached this conclusion, the Court finds it unnecessary to determine whether the taking of the applicant's fingerprints and photograph(s) in the police station, arguably with his consent, also constituted an «interference» under Article 10 of the Convention and entailed a violation of that Article.
(b) Solo demonstration on 24 February 2012
42. The Court considers that the relevant factual and legal aspects of the present case are similar to those it examined in Lashmankin and Others (cited above, §§ 431 — 42; see also Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 127 — 31, 10 April 2018). Having examined the parties' submissions and the available material, the Court finds no sufficient reason to depart from those findings.
43. There have accordingly been violations of Article 10 of the Convention in relation to the events on 10 December 2011 and 24 February 2012.
II. Alleged violations of Article 6 of the Convention
44. The applicant complained of delays in the criminal investigation, resulting in the expiry of the time-limit for prosecution in respect of the injuries he had sustained. He also made a similar complaint concerning his application for administrative-offence proceedings to be instituted in relation to a traffic accident.
45. He complained under Article 6 § 1 of the Convention, the relevant parts of which read as follows:
«In the determination of his civil rights and obligations... everyone is entitled to a... hearing within a reasonable time by [a]... tribunal...»
46. The Government argued that the complaint about the duration of the pre-trial proceedings was out of time being received by the Court on 18 October 2011, which was more than six months after the appeal decision of 11 April 2011 in the compensation case (see paragraph 21 above). They also argued that the civil limb of Article 6 of the Convention was inapplicable because the applicant had not lodged any civil claim in the course of the criminal investigation or in relation to his application for administrative charges to be brought. When preparing their observations in the present application, in 2014 the Government had sought materials from the «case file» in the Supreme Court of the Komi Republic; those materials contained no statement of civil claims or any related information. The document submitted by the applicant to the Court bore no official stamp which would normally be added when registering a document. That document referred to case no. 2-387/2004 which was a civil case relating to another person and having no link to the criminal investigation against B. In 2010 the proceedings against B. had been terminated. According to the applicable regulations, the related materials had been disposed of after expiry of the retention period, except for the judgment. In the Government's view, there was no indication that any (other) «civil right» or «civil obligation» pertaining to the applicant had been at stake in the course of the criminal investigation or in relation to the CAO. In any event, the national court had agreed to examine his civil claims and had granted them in part. Thus, the applicant had lost victim status in respect of his complaint about the length of the criminal investigation and the loss of the file concerning the administrative-offence proceedings.
47. The applicant argued that he had lodged a civil claim during the criminal investigation in September 2004 (see paragraph 16 above), and that the criminal investigation had been unlawfully stalled, resulting in the expiry of the time-limit for prosecuting B.; the slow and negligent processing of his complaint about the traffic accident had likewise resulted in the expiry of the time-limit for prosecution. Both sets of proceedings had been decisive for the determination of the applicant's civil rights and obligations. The civil courts had awarded him derisory amounts of compensation while omitting to acknowledge the violation of his right to an investigation within a reasonable time.
(a) «Reasonable time» requirement as regards the proceedings under the CAO concerning the traffic accident
48. As to the length of the administrative-offence proceedings, the relevant period spanned from January 2004 to September 2005. In the Court's view, this was a relatively short period of time as far as the «reasonable time» requirement under Article 6 § 1 of the Convention is concerned. Accordingly, leaving aside the other admissibility issues, this complaint is, in any event, manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(b) «Reasonable time» requirement as regards the criminal investigation concerning the applicant's injuries
49. As regards applicability of Article 6 to the proceedings at hand, the Court reiterates that the Convention does not confer any right, as such, to have third parties prosecuted or sentenced for a criminal offence. However, domestic law can provide for a right for the victim of the offence to claim reparation for the damage caused by that offence by means of civil-party proceedings, that is by allowing the victim to join criminal proceedings as a civil party. This is one possible way of providing for a civil action for reparation of the damage (see, as a recent authority, Nicolae Virgiliu Tãnase v. Romania [GC], no. 41720/13, § 194, 25 June 2019). Civil-party proceedings come within the scope of Article 6 § 1 under its civil head unless they are brought for purely punitive purposes. Article 6 § 1 applies to the proceedings involving a civil-party claim from the moment the victim has joined as a civil party, even during the preliminary investigation stage taken on its own (ibid., § 207).
50. The applicant had victim status in the criminal proceedings instituted against B. Under the Russian Code of Criminal Procedure, there was also a separate procedural status, that of a civil claimant, for people who wanted to seek compensation for pecuniary or non-pecuniary damage caused as a result of a criminal offence that is being investigated. It was already open to the applicant to lodge a monetary claim at that early stage of the investigation, following the institution of criminal proceedings against B. in 2004 in the present case, and thereby to acquire the status of a civil claimant (see paragraph 26 above).
51. The Court notes that the statement of claim submitted by the applicant referred to the proceedings which appeared to have no link to the proceedings against B. (see paragraph 16 above). No other document has been submitted to the Court to show that the applicant had the status of civil claimant in the criminal proceedings. Furthermore, the Court has taken note of the Government's submission that the materials relating to the investigation against B. had been disposed of following expiry of the retention period. It has not been suggested that that was not the case or that the materials were disposed of in breach of Russian law.
52. Hence, the Court does not find that the applicant has standing to rely before the Court on the civil limb of Article 6 § 1 of the Convention in relation to the right to a trial «within a reasonable time» as regards the criminal investigation in respect of B. (see Janowiec and Others v. Russia (dec.), nos. 55508/07 and 29520/09, § 118, 5 July 2011, and Bolgov v. Russia (dec.), no. 28780/03, 6 May 2010).
53. The Court notes that under Russian law the applicant had standing to complain before Russian courts about the length of the investigation and also had a right to compensation on account of the length of the investigation, a civil-claimant status not being decisive for the purpose of that domestic compensation. It was open to the respondent State to provide for a wider protection in respect of procedural rights afforded to crime victims (Article 53 of the Convention). In the Court's view, this consideration is without prejudice to the admissibility of the complaint raised before the Court under Article 6 of the Convention.
54. Accordingly, the complaint about the length of the criminal investigation is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
III. Other alleged violations of the Convention
55. Lastly, given the scope of the initial complaint before the Court as regards the applicant's solo demonstrations (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), the Court invited the parties to make submissions under Article 5 § 1 of the Convention and Article 2 § 1 of Protocol No. 4; and also, as to the events on 10 December 2011, under Article 5 § 5 to the Convention and Article 13 of the Convention in conjunction with Article 2 § 1 of Protocol No. 4.
56. The Court notes that the applicant's representative has not put forward any specific argument on these issues in his observations and has not alleged any violation of Article 5 § 1 of the Convention. However, by way of a short statement, he did allege a violation of Article 5 § 5 of the Convention and of Article 2 § 1 of Protocol No. 4 to the Convention.
57. In view of the above considerations and the scope of the Court's findings of a violation under Article 10 of the Convention, it is not necessary in the present case to examine separately the admissibility and merits of those remaining issues under the above provisions of the Convention or the Protocols thereto.
IV. Application of Article 41 of the Convention
58. 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.»
59. The applicant submitted no claim for just satisfaction within the time allowed by the Court for that purpose.
60. There are no compelling considerations in favour of making an award despite the applicant's non-compliance with Rule 60 § 2 of the Rules of Court (see Nagmetov v. Russia [GC], no. 35589/08, §§ 80 — 81, 30 March 2017).
1. Declares the applicant's complaints relating to his right to freedom of expression in relation to the events on 10 December 2011 and 24 February 2012 admissible and the complaints about the length of proceedings inadmissible;
2. Holds that there have been violations of Article 10 of the Convention in relation to the above events;
3. Holds that it is not necessary to examine separately the admissibility and merits of the remaining issues under the Convention or the Protocols thereto concerning the above-mentioned events;
4. Holds that it is not necessary to make an award under Article 41 of the Convention.
Done in English, and notified in writing on 6 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.