Kasparov and Others v. Russia (application no. 51988/07), 13.12.16

Principal facts

The applicants are Garri Kasparov, the former World Chess Champion and political activist, as well as six other activists, Aleksandr Averin, Yuriy Orel, Lev Ponomarev, Aleksandr Stelmakh, Aleksey Tarasov, and Andrey Toropov. They are all Russian nationals who were born in 1963, 1981, 1968, 1941, 1978, 1968, and 1973, respectively, and live in Moscow or the Moscow region.

On 24 November 2007 a series of protest rallies were organised by opposition politicians in several Russian cities, including Moscow. The applicants, having attended a gathering on Academician Sakharov Prospekt in Moscow, were on their way to another authorised gathering on Chistoprudnyy Boulevard when they were stopped by the riot police and arrested.

Mr Kasparov and Mr Averin were then escorted to the Basmannyy district police station on suspicion of an administrative offence, namely marching without authorisation and refusing to disperse. Once at the station their administrative detention was ordered. Mr Kasparov was released at 6.20 p.m. the same day and Mr Averin at some point on 26 November 2007.

In the ensuing administrative proceedings both men contested that their procession had caused a disturbance and denied that they had had an opportunity to disperse before being arrested. The Justice of the Peace found them guilty of the two administrative charges against them and sentenced them to five days’ administrative detention. In both sets of proceedings, the Justice of the Peace based her findings on police officers’ witness statements and written police reports according to which the applicants had participated in an unauthorised march, chanting “Down with Putin!”. The applicants requested to have other witnesses called and to admit additional evidence such as video recordings, but their requests were refused.

The other five applicants were arrested in similar circumstances and also convicted of administrative offences.

 Complaints, procedure and composition of the Court

Relying on Article 5 § 1 (right to liberty and  security),  Article  10  (freedom  of  expression)  and Article 11 (freedom of assembly and association), the applicants complained about  their  arrest during the demonstration and ensuing convictions of administrative offences. Further relying on Article 6 § 1 (right to a fair trial), they also alleged that the administrative proceedings brought against them had not been fair, in particular because the court had given undue weight to the police’s version of events. Lastly, they alleged under Article 18 (limitation on use of restrictions on rights) that their arrest and detention had undermined their right to freedom of assembly and freedom of expression, and had been intended as political revenge.

Decision of the Court

The Court rejected as inadmissible the application in so far as it had been lodged by the five applicants Mr Orel, Mr Ponomarev, Mr Stelmakh, Mr Tarasov and Mr Toropov because their alleged legal representatives had brought their cases to the Court without an authorisation form confirming that the applicants wished them to lodge an application on their behalf.

Article 11 (freedom of assembly)

As in several other identical Russian cases which have come before the Court, the applicants’ – undeniably peaceful – procession had been dispersed, the applicants arrested and sentenced to a term of imprisonment without any assessment of the disturbance they had caused, merely because they had marched without authorisation and allegedly ignored police orders stop. Therefore, even if the applicants’ arrest and administrative detention had complied with domestic law and served the legitimate aim of preventing disorder, the Government had failed to demonstrate that it had been necessary to take such measures.

Moreover, those measures had had the serious potential to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate. The chilling effect of the sanctions had been amplified by the fact that they had targeted Mr Kasparov, a well-known public figure, whose deprivation of liberty had been bound to attract wide media coverage.

There had therefore been a violation of Article 11 as regards both applicants.

Article 5 (right to liberty and security)

The Court accepted that a large group of protestors walking in a cluster could reasonably have been perceived as a march and that the police therefore had had formal grounds for charging the applicants with an administrative offence. Furthermore, given the number of protestors and the scale of agitation, it might not have been possible to draw up all the relevant documents on the spot, having made it necessary to escort the applicants to the police station. Once at the police station, their administrative detention had been ordered, which, according to the relevant domestic law, should not as a general rule exceed three hours. That time-limit had been complied with as concerned Mr Kasparov, who had appeared at 6.20 p.m. before the Justice of the Peace on the same afternoon as the demonstration and been sentenced to five days’ administrative detention. However, as concerned Mr Averin, neither the Government nor any other domestic authority had provided any justification for his being detained for 48 hours before being sentenced to five days’ administrative detention. His detention pending trial had therefore been unlawful.

The Court consequently found that there had been no violation of Article 5 § 1 as concerned Mr Kasparov, but found that there had been a violation as concerned Mr Averin.

Article 6 (right to a fair trial)

The Court noted that, as in a number of other similar applications against Russia concerning the conduct of administrative proceedings against people charged with breaching the rules for public events or with failing to obey police orders to disperse, the applicants had been given no opportunity at all to give evidence in support of their version of events. Indeed, the courts, relying exclusively on the police’s version of events, had not required the police to justify their interference with the applicants’ right to freedom of assembly, which included a reasonable opportunity to disperse when such an order was given.

The Court therefore found that the administrative proceedings against both applicants, taken as a whole, had not been fair, in violation of Article 6 § 1.

Article 18 (limitation on use of restrictions on rights)

The Court considered that there was no need to examine the complaint under Article 18 as it had already found, under Articles 5 and 11, that the applicants’ arrest and administrative detention had the effect of preventing and discouraging them and others from participating in protest rallies and actively engaging in opposition politics.

Article 41 (just satisfaction)

The Court held that Russia was to pay each of the applicants 5,000 euros (EUR) in respect of non- pecuniary damage and EUR 3,000 for costs and expenses.