Новости судебных дел
Судебное дело "А.В. Захаркин против России"
First Section Registrar So/ren Nielsen European Court of Human Rights 22 October 2014 Written Observations on behalf of the applicant in reply to observations by the Representative of the Russian Federation at the European Court of Human Rights Application No. 40377/10 Zakharkin v Russia Dear Sir, In reply to the written observations by the Representative of the Russian Federation at the European Court of Human Rights (Agent) of 2 September 2014 No. 14-4104-14 we submit written observations on behalf of the applicant to the European Court of Human Rights. IN REPLY TO THE ANSWERS BY THE AGENT TO QUESTIONS Nos. 1, 2, 5 - violations of Articles 10 and 11 of the Convention 1. The Agent considers that the interference with the rights of the applicant in this case, taking into account margin or appreciation of the state, was reasonable and not amounted to violation of the provisions of Articles 10 and 11 of the Convention. Overview: 2. Article 10 and 11 of the European Convention have been declared by the European Court of Human Rights as being the foundation of a democratic society. However, the state can legally restrict those rights if there is a law that pursues a legitimate aim and that is necessary in a democratic society. The law must be clear and precise so that the applicant knows which actions will be followed by an arrest and fine. To have a legitimate aim, the restriction must fit into one of the categories enumerated in the second paragraph of both articles. As for the condition of the necessity in a democratic society, the state must prove that the restriction is proportionate to the aim pursued. 3. Before analyzing the Court's requirements, we would like to specify that the Court makes a difference between illegal and legal protests. Illegal protests are those that have not been authorized, while legal protests would therefore be the opposite, meaning when the authorization has been issued for the protest. The requirements for an illegal protest to be legitimate for the Court is narrow, however in our case, solo protesting should be legal without authorization and that is what we will try to argue. Quality of the Law 4. The law must be clear and precise for the citizens to be able to "regulate their conduct" Rekvenyi v. Hungary, ECtHR, App. No. 25390/94, 20 May 1990 para 34). Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as `law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. (Sunday Times judgment, p. 31, para. 49; Silver and Others judgment, p. 33, paras. 87 and 88) 5. In our case, the precision of the law can be questioned. In fact, Mr. Zakharkin thought that he regulated conduct of his fellows in a way that was following the law. The fact that it isn't clear that solo protesting is covered by the law in terms of the obligation to give notice to local government means that the law is not precise and clear enough. 6. When organizing solo protesters Mr. Zaharkin thought that he was following Part 1 Article 7 of the Law "On assemblies, meetings, demonstrations, processions and picketing." A notice of holding the public event (except for a rally and picketing held by a single participant) shall be sent by its promoter in writing to the executive power body of the Subject of the Russian Federation or the body of local self-government within the period not earlier than fifteen and not later than ten days prior to holding of the public event. 7. In addition to the irregularities of the law and practice of its implementation in terms of the need to send notification, we state further in our observation that it is not necessary in a democratic society and even that it is a legal absurdity to require a single person protesting on a street to register this protesting with authorities (to send a notice of holding the public event) in advance as this would require all pedestrians to authorize their movements on the streets. Legitimate aim: 8. It has been accepted by the Court that regulating protests has a legitimate aim. (Nemtsov v Russia, ECtHR, App. no. 1774/11, 31 July 2014 and Eva Molnar v Hungary, ECtHR, App. no. 10346/05, 7 January 2009). For the public order and national security, a government can require the protests to be subject to authorization (Eva Molnar v Hungary,). However, as established by Eva Molnar v Hungary, if the requirement of authorization is in fact just a hidden obstacle to Article 11, then there would be no legitimate aim to the measure. 9. Asking a solo protester to give his itinerary days in advance when there could not be potential disturbance to the public order (in the same way as there is no potential danger in a single pedestrian walking on a street) is just a hidden obstacle to the rights protected under Article 11. A peaceful single protester standing on the sidewalk by definition as a regular citizen is not a threat or a disturbance that needs to be supervised by the police. There is no need to notify the local government so that it can arrange special police forces to oversee public order at the time and the place of a single protest. The only goal of advance notification is to evaluate if a public event requires enforcement of regular police on city streets. A solo person on a street does not require enforcement. If this were the case, every single person walking to work would be a threat and therefore would need to ask for authorization to go to his or her office. It would be a legal absurdity that would drastically affect people and their freedom of expression. 10. Therefore the aim of the interference with Mr. Zakharkin's rights in terms of requiring him to provide notification about forthcoming solo picketing by definition posing no threat to public order is not to protect the public, but rather to protect the state from being questioned by the public. Consequently, as established by Eva Molnar v Hungary, the requirement of the legitimate aim is not met. Necessary in a democratic society: 11. The right to freedom of assembly and freedom of expression are the foundation of a democratic society. If there are restrictions to the right to freedom of assembly, they must be "convincingly established" and the exception of the second paragraph must be "narrowly interpreted". (Nemtsov v Russia, ECtHR, App. no. 1774/11, 31 July 2014 at para 72). 12. The Agent must show that it is necessary in a democratic society to restrain the solo protesting, which the Agent did not do. Necessity implies the existence of a "pressing social need" (Rekvenyi v. Hungary, ECtHR, App. No. 25390/94, 20 May 1990, para 42). It is not a pressing social need to restrain a peaceful solo protester, because there is no interference to the public order or no actual need to have police forces looking after one person protesting while standing on the sidewalk. Requiring peaceful single protesters to ask for an authorization restrains the right to freedom of assembly and freedom of expression in such a way that it will discourage people to show their conviction. 13. In Ezelin v.France, ECtHR App. No 11800/85 and in Nemtsov v Russia, ECtHR, App. no. 1774/11, 31 July 2014, 26 April 1991, the Court clearly states that Articles 10 and 11 cannot be restrained by a state in a way that would discourage others from showing their convictions. Moreover, the Court in that judgement declares that any sanction, even at the lower end of the scale of penalties, is a limitation to the rights of freedom of assembly and freedom of expression and there should not be any limitation as long as the person does not commit any reprehensible act (Ezelin v.France, ECtHR App. No 11800/85, 26 April 1991 at para 53). Although the solo protests in that case were legal as they did not requires authorization, and the sanction occurred within a disciplinary context, the principle remains applicable to Mr. Zakharkin for whom the restriction was the requirement to ask for authorization. As we submitted earlier, solo protesting should not need an authorization to be legal, and therefore any restriction, even the smallest one, would not be legitimate as long as the solo protester does not commit any reprehensible act. Proportionality of the restriction 14. Even if the measure has a legitimate aim and is necessary in a democratic society, it needs to be proportionate. In the Piermont v France, ECtHR, App. No. 15773/89, November 3, 1994, the Court established that a good balance should be kept between the prevention of disorder and the freedom of expression protected by Article 10 of the Convention. If the balance is not kept, than there is a violation of Article 10. To have a law that requires authorization by single protestors is not proportionate to the aim pursued. There is no need for such a restriction of the citizens' right of expression. A peaceful single protester standing (not even walking) on the sidewalk does not create a disturbance or traffic which would require an authorization in order to alert the police to potential dangers. 15. In addition and without prejudice to the foregoing, even if authorization had been a necessary requirement, the police's decision to arrest Mr. Zakharkin may not have been a proportionate reaction. In Oya Ataman v Turkey, ECtHR, App. No. 74552/01, 5 March 2007 at para 42, the Court held that even for unauthorized protests, "where demonstrators do not engage in acts of violence, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance". Arresting peaceful solo protesters does not show a degree of tolerance, on the contrary: it restrains the right of freedom of expression used peacefully without any interference to the public safety or order. 16. Therefore, it was violation of Articles 10 and 11 of the Convention. IN REPLY TO THE ANSWERS BY THE AGENT TO QUESTIONS No. 3. Violation of Articles 5 of the Convention 17. According to Article 5(1)c of the Convention everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. Only one provision "c" of the Article 5(1) might be applicable to circumstances of the Zakharkin's case - "the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so." However, provision "c" of the Article 5(1) of the Convention is not applicable to Zakharkin as he had not committed any offence. Indeed he followed the Law. 18. Mr. Zakharkin did not commit any offence, therefore he could not be arrested. 19. Moreover, Mr. Zakharkin could not be arrested for being on the street when it was -38C or in order to save him from the cold by arresting him. IN REPLY TO THE ANSWERS BY THE AGENT TO QUESTIONS No. 4. Violation of Article 6 of the Convention - violation of the impartiality requirement on account of the absence of any prosecuting authority and the role of the judge in these circumstances The tribunal was not impartial within the meaning of Article 6. 20. The judicial process leading to Mr. Zakharkin's fine was not impartial because it lacked objective guarantees of impartiality, thereby undermining the public's confidence in the judiciary. The European Court of Human Rights has repeatedly drawn a distinction between "a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect" (Piersack v. Belgium, ECtHR App. No. 8692/79, 1 October 1982 at para 30). 21. By consistently applying the objective test in addition to the subjective, the Court has indicated that the inquiry is of broader significance than just determining whether a particular judge lacked impartiality on a given matter. Instead, "[w]hat is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused." (Hauschildt v Denmark, ECtHR App. no. 10486/83, 24 May 1989 at para 48). In the case of Mr. Zakharkin, the judge's assuming prosecutorial functions and the absence of an independent prosecutor are sufficient to erode public confidence in the judicial system. 22. The judge's assuming prosecutorial functions also breached Article 6 of the Convention because Mr. Zakharkin himself had objective reasons to doubt the impartiality of the judge. In applying the objective test, "the standpoint of the accused is important but not decisive" (Piersack v. Belgium ECtHR App. No. 8692/79, 1 October 1982 at para 31 & Hauschildt v Denmark at para 48). In addition, the fear of lack of impartiality must be justifiable objectively (Hauschildt v Denmark, ECtHR App. no. 10486/83, 24 May 1989 at para 48). In cases involving prior involvement of a trial judge in pre-trial investigative functions, the European Court of Human Rights has noted that an accused would have objective reasons to fear seeing a judge who had previously interrogated him subsequently partaking in the trial court decision (de Cubber v. Belgium, ECtHR App. No. 9186/80, 26 October 1984 at para 29, & Oleksandr Volkov v. Ukraine, ECtHR App no. 21722/11 at para 115). In the case of Mr. Zakharkin, while the judge was not involved in pre-trial decisions, Mr. Zakharkin's seeing a person responsible for adjudicating his claim simultaneously interrogate him in the absence of an independent prosecutor would lead to a similar objectively justifiable fear. As such, the judge's assuming investigative or prosecutorial functions was sufficient to breach Article 6 of the Convention because Mr. Zakharkin's fears were objectively justified. 23. The fact that Mr. Zakharkin's judge was not involved in the case does not mitigate his lack of impartiality. In some situations wherein a court partakes in summary procedures for contempt of court, the European Court of Human Rights has held that judges' acting as adjudicators while simultaneously determining the charge can lead to lack of impartiality. In such cases, the Court has noted that: the confusion of roles between complainant, witness, prosecutor and judge could self-evidently prompt objectively justified fears as to the conformity of the proceedings with the time-honoured principle that no one should be a judge in his or her own cause and, consequently, as to the impartiality of the bench (Kyprianou v. Cyprus, ECtHR App. no. 73797/01, 15 December 2005 at para 127). 24. In Mr. Zakharkin's case there has been a similar conflation of roles, with the judge's assuming strong investigatory powers in the absence of an independent prosecutor. While the judge may not have had a personal interest in the outcome of Mr. Zakharkin's case, by performing investigative roles normally limited to the executive branch, the judge assumed a political role incompatible with the idea of an independent judiciary. In this role as a de facto extension of the executive branch, the judge gave the appearance of having an interest in the outcome of the case. Consequently, the judge's simultaneous involvement in investigative and adjudicatory functions led to a breach of Article 6 of the Convention. 25. Moreover, the conviction of Mr. Zakharkin was based solely on documents provided by the police. The tribunal was not independent within the meaning of Article 6 26. The judicial process that led to Mr. Zakharkin's fine was not independent within the meaning of Art. 6. In evaluating independence of a court, it is necessary to consider the: manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (Findlay v. The United Kingdom, ECtHR App no. 22107/93, 25 February 1997 at para 73). 27. In Findlay v. United Kingdom, the Court considered a court martial whose limited safeguards and subsequent review by other independent judicial bodies were insufficient to mitigate the problematic involvement of a convening officer in prosecutorial and judicial functions (Findlay v. United Kingdom, ECtHR App no. 22107/93, 25 February 1997 at para 72). In the case of Mr. Zakharkin, the judicial body did not even offer the pretext of limited guarantees against outside pressures, as the absence of a duly appointed prosecutor in Mr. Zakharkin's case eroded the distinction between the executive and judicial branches, leaving the judge to occupy both roles. Consequently, the judge acted as if he were a member of the executive branch, thereby erasing any appearance of independence. 28. Therefore, there was a violation of Article 6. AS REGARDS THE ISSUE OF PROVIDING FREE LEGAL ASSISTANCE TO THE APPLICANT 29. A similar position by the Agent has already been expressed in the observations in the case of Mikhailova v. Russia No. 46998/08. To reply to this position we state the following. 30. The Court has held that domestic courts must have "regard to the object and purpose of [Article 6 S: 3(c)]", which states a defendant has the right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require (Pakelli v. Germany, No. 8398/78, 25 April 1983). In Pakelli, the Court noted that the object and purpose of the article necessitates that it be read not as a choice between allowing the accused to defend himself in person or through legal counsel, but that "a `person charged with a criminal offence' who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing." In other words, the accused has the fundamental human right to choose whether he prefers to present his case by himself or through legal counsel. A tribunal cannot make this decision for the accused. It is submitted that this proposition holds true even if domestic law allows an accused to appear in person to defend himself. 31. In Pakelli, the Court further held that "it goes without saying that the personal appearance of the appellant would not have compensated for the absence of his lawyer: without the services of a legal practitioner, Mr. Pakelli could not have made a useful contribution to the examination of the legal issues arising ..." 32. In Ezeh and Connors v. The United Kingdom, Nos. 39665/98 and 40086/98, 9 October 2003, the Court reached the same conclusion, holding that an accused was "denied the right to be legally represented in the proceedings before the prison governor" in violation of Article 6 when the "governor excluded the applicants' legal representation." The Convention violation for excluding legal counsel was "irrespective of whether they could have obtained the services of a lawyer free of charge." 33. In Zdravko Stanev v. Bulgaria, No. 32238/04, 6 November 2012, the Court highlighted that even an educated man cannot be deemed prepared to represent himself personally before a tribunal and that the "interests of justice demanded that, in order to receive a fair hearing, the applicant ought to have benefited from free legal representation during the proceedings before the Sliven Regional Court." In the words of the Court: [A]lthough it is not in dispute that the applicant had a university degree, there is no suggestion that he had any legal training, and while the proceedings were not of the highest level of complexity, the relevant issues included the rules on admissibility of evidence, the rules of procedure, and the meaning of intent. In addition, the Court notes that the applicant was charged with a criminal offence which involved in impugnment of a senior member of the judiciary and which called into question the integrity of the judicial process in Bulgaria. . . . As such, a qualified lawyer would undoubtedly have been in a position to plead the case with greater clarity and to counter more effectively the arguments raised by the prosecution. The fact that the applicant, as an educated man, might have been able to understand the proceedings does not alter the fact that without the services of a legal practitioner he was almost certainly unable to defend himself effectively. [emphasis added] 34. It is submitted that the case law is consistent and clear that the interests of justice and compliance with Article 6 necessitates that an accused in a criminal proceeding who wants legal representation must have access to it, and that an individual cannot be considered to have had an adequate opportunity to defend himself merely because he was present and permitted to speak at a hearing. The Government's observations 35. In the present case, the Government relies upon the fact that (1) the Applicant was able to participate in the proceedings, (2) the amount of the fine imposed on the applicant was small and (3) that the proceedings are "simple" (according to the criteria set out in Gutfreund v France, No. 45681/99, 25 April 2002) to show that the interests of justice did not require that legal assistance be provided free of charge. In all aspects, the reliance is misplaced. 36. It is not correct to describe the proceedings before the Justice of the Peace or District Court as "simple". The court procedure involved the Applicant being called before a judge to give full oral and written submissions. The Applicant was also entitled to call and cross-examine witnesses. The nature of the offences of which the Applicant was accused was criminal. 37. The Applicant is not a lawyer. He was placed in an emotionally charged situation as she faced charge of a criminal nature with a possible sentence of imprisonment if he refused or could not pay the initial fine. Although he could physically appear before the judge, submit written and oral statements, and cross-examine witnesses, as a person with no legal background, he could not do this effectively without legal assistance. The applicant was devoid of any effective assistance before the courts because he was unable to afford legal assistance, and was therefore unable to effectively present his argument, cross-examine witnesses and function effectively at the hearings. 38. In such a case, it is submitted that it is in the interests of justice to provide an accused with a legal representative who can effectively take care of the legal and emotional burden, can present the accused's case calmly and dispassionately, making use of his/her legal training to focus on making the legally important points required to found a successful defence. 39. The fact that the Applicant lacked sufficient means to pay for qualified legal representation himself and that the Russian authorities did not provide him free legal assistance was therefore a crucial factor affecting the fairness of the trial. This principle of `fairness', which has been recognised by the Court (see McVicar v. the United Kingdom, No. 46311/99, 7 August 2002), should have meant that in this case the Applicant received the assistance of a lawyer. 40. Lack of a lawyer representing the applicant in a trial of the charge means that the functions of a defending lawyer were assumed by a judge. Therefore, in this case the judge conducted functions of a judge, of a prosecutor and of a defending lawyer. This situation could not be called a fair trial. 41. The fact that the applicant did not benefit from any legal assistance and that the judge assumed all the functions of actors of the trial was a prejudice which, it is submitted, violated Article 6 of the Convention. AS REGARDS THE STATEMENT BY THE AGENT ABOUT NON-EXHAUSTION OF DOMESTIC REMEDIES 42. The Court has recognized on many occasions that application of the rule requiring exhaustion of domestic remedies is neither absolute nor capable of being applied automatically, but rather "must be applied with some degree of flexibility and without excessive formalism" given its application "in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up." In reviewing whether an applicant has observed the rule, the Court will consider the particular circumstances of each individual case, including not only the existence of formal remedies in the legal system of the respondent state, but also the general legal and political context in which they operate, as well as the personal circumstances of the applicant. 43. The Court has recognized that an applicant need not always exhaust domestic remedies. The Court will often dismiss a preliminary objection by a respondent state that the applicant has not exhausted domestic remedies where the state has not "established with sufficient certainty that the remedy advanced ... had a reasonable prospect of success."^ The Court has interpreted this requirement in the context of Article 13 as a requirement that the applicant have an "effective" remedy. An effective remedy does not require the certainty of a favorable outcome, but it does require that the remedy either "prevent the alleged violation or its continuation or ... provid[e] adequate redress for any violation that has already occurred."^ 44. The Court has concluded that an applicant need not pursue every available form of relief where that applicant brought a number of unsuccessful court complaints. In Arutyunyan v. Russia, the applicant complained that the conditions of his detention violated Article 3 of the Convention. Russia objected to the admissibility of the application on the basis that the applicant had not exhausted domestic remedies--even though he had brought numerous complaints with the facility administration and various law-enforcement and executive authorities, as well as the Russian courts--because he had not brought a separate tort action. The Court concluded that the applicant was not required to file "a separate action with the same court": The Court ... does not find it unreasonable that in a situation where the domestic courts had analysed, a number of times, the applicant's complaint of inadequate conditions of detention, he did not lodge a separate action with the same court following the formal tort procedure as required by the Russian Civil Code. In circumstances where the domestic courts at two levels of jurisdiction had examined and dismissed the applicant's complaints, having found that the conditions of his detention fully complied with the domestic legal norms, it is not apparent that a tort action before the same courts would have been any more successful, would have been decided on the basis of any other issues or could have even passed the admissibility stage.^ 45. It is worth noting that the existence of a judicial decision providing the relief requested may be sufficient to support a respondent state's contention that exhaustion of domestic remedies is required. In Ananyev & Others v. Russia, the Court considered complaints that the applicants had been detained in inhuman and degrading conditions in remand centers while awaiting criminal trials against them. The Court recognized that a judicial decision showing an available remedy would have supported Russia's argument that exhaustion was required, but ultimately rejected Russia's objection to the non-exhaustion of domestic remedies and found a violation of Article 13 where "[t]he Russian Government ... did not submit a single judicial decision showing that the complainant had been able to vindicate his or her rights by [submitting a judicial complaint regarding the conditions of prison detention]."^ 46. The same situation in the case of the Applicant. Two judicial instances (justice of the peace and a district court judge confirmed legality of actions of the police). Having demanded that Mr. Zakharkin to file a separate law suit against the police's actions, the Agent did not submit a single judicial decision showing that the suggested law suit would be able to vindicate Mr. Zakharkin's rights by submitting a separate law suit regarding police's actions, legality of which the justice of the peace and a district court judge has already considered. 47. Therefore we submit that the Applicant Mr. Zakharkin has exhausted effective domestic remedies. THEREFORE I SUBMIT: 1. Mr. Zakharkin has exhausted effective domestic remedies. 2. There was a violation of Articles 10 and 11 of the Convention. 3. There was a violation of Article 5 of the Convention. 4. Article 6 of the Convention was applicable to the domestic proceedings in the present case, under the criminal limb. 5. There was a violation of Article 6 in two regards: a. lack of prosecution to present the charge before the judge; b. lack of free legal assistance offered to the applicant to fight the charge leading to the situation when the judge assumed all the functions therefore breached the guarantee of a fair trial under Article 6 of the Convention. CLAIMS FOR JUST SATISFACTION With regard to just satisfaction claims, the Applicant asks for compensation of: 1. RUB 1,500 in respect of pecuniary damage caused by ordering the Applicant to pay fines of RUB 1,500 under Article 20.2 (paragraph 1) of the Code of Administrative Offences; 2. EUR 10,000 in respect of non-pecuniary damage. ANTON BURKOV Representative of the applicant email@example.com ^See, e.g., Maskhadova & Others v. Russia, No. 18071/05, S:S: 206-07 (June 6, 2013) (dismissing state's preliminary objection based on failure to exhaust domestic remedies where there "was some uncertainty in domestic law as regards the status of decisions taken under [the proposed domestic remedy]" and where subsequent Constitutional Court ruling called for judicial review of decisions taken under proposed domestic remedy but "only enabled an applicant to ask for a review of formal lawfulness of the relevant decision, but not to disagree with the well-foundedness and proportionality of the measure as such"). ^Ananyev at S: 96. ^Arutyunyan at S: 64. ^Ananyev at S: 110 ("The Court, for its part, has not noted any examples of the successful use of this remedy in any of the conditions-of-detention cases that have previously come before it."). 1
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