European Court of Human Rights Ruling of the Week

ECtHR Rulings of the Week: 13 judgments related to Russia, while Russia denies Salman Tepsurkaev was detained and tortured by law enforcement officers

This week there have been 13 judgments of the European Court of Human Rights concerning Russia, dealing with violations of the right to life (Article 2), the prohibition on torture (Article 3), security and liberty of person (Article 5), right to fair trial (Article 6); the prohibition on punishment where there has been no violation of the law (Article 7); freedom of expression (Article 10); freedom of assembly and association (Article 11); the right to an effective remedy (Article 13); the right to just satisfaction (Article 41); the protection of property (Article 1 of Protocol No. 1); and compensation for wrongful conviction (Article 4 of Protocol No. 7).

In the latest development in the case of Salman Tepurkaev, on 5 October 2020 Caucasian Knot reported that, in response to questions from the European Court of Human Rights, Mikhail Galperin, Representative of the Russian Federation at the European Court of Human Rights, stated that Tepsurkaev, a native of Chechnya, was not detained by law enforcers and was not subjected to ill-treatment. Human rights defenders and activists of the movement “1Adat” treated the Mr Galperin’s statement as unconvincing. The “Caucasian Knot” has reported that on September 14, the European Court of Human Rights (ECtHR) requested the Russian authorities to provide the information whether Salman Tepsurkaev was kidnapped and tortured and whether an investigation was being carried out into the case.

Agapov v. Russia, 6 October 2020

Art 6 § 2 • Presumption of innocence • Statement by domestic courts in civil proceedings for non-payment of taxes, relating to applicant’s criminal guilt for tax evasion, and for which he had not been convicted given that the prosecution was time-barred • Statement went beyond determining facts and encompassed judicial authorities’ opinion on the applicant’s mens rea • Imputation of criminal guilt, inconsistent with right to presumption of innocence

Art 1 P1 • Peaceful enjoyment of possessions • By piercing the corporate veil, court imposed a duty on applicant to pay tax arrears, penalty and fine owed by limited liability company, for which he had been managing director • Duty based on allegation of criminal conduct of applicant, for which he had not been convicted • Court decision unlawful

  1. A violation of Article 6 § 2 of the Convention;
  2. A violation of Article 1 of Protocol No. 1;
  3. The respondent State is to pay the applicant EUR 688, plus any tax that may be chargeable, in respect of pecuniary damage;  EUR 7,800, plus any tax that may be chargeable, in respect of non-pecuniary damage.

Borets-Pervak and Maldon v. Russia, 6 October 2020

  1. A violation of Article 11 of the Convention in respect of both applicants;
  2. A violation of Articles 5 and 6 of the Convention as regards the other complaints raised under the well‑established case-law of the Court (see the appended table);
  3. The respondent State is to pay the applicants, within three months, the following amounts: to the first applicant EUR 7,500, plus any tax that may be chargeable, in respect of non‑pecuniary damage; to the second applicant EUR 5,000, plus any tax that may be chargeable, in respect of non‑pecuniary damage; to each applicant EUR 1,700 plus any tax that may be chargeable to the applicants, for costs and expenses, payable in the second applicant’s case to her representative.

Daniliny v. Russia, 6 October 2020

  1. A violation of the substantive aspect of Article 2 of the Convention on account of Mr Timur Danilin’s disappearance;
  2. A violation of the procedural aspect of Article 2 of the Convention on account of the failure to carry out an effective investigation into the circumstances in which Mr Danilin disappeared;
  3. A violation of Article 3 of the Convention on account of the applicants’ mental suffering;
  4. A violation of Article 5 of the Convention on account of Mr Danilin’s unlawful detention;
  5. A violation of Article 13 of the Convention in conjunction with Article 3;
  6. The respondent State is to pay the applicants, within three months, the following amounts: EUR 10,000 to each of the applicants, plus any tax that may be chargeable, in respect of pecuniary damage;  EUR 80,000 to the applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage; EUR 2,000, plus any tax that may be chargeable to the applicants, in respect of costs and expenses.

Demin v. Russia, 6 October 2020

  1. Violations of Article 10 of the Convention.

Karastelev and Others v. Russia, 6 October 2020

Art 10 • Freedom of expression • Prosecutor’s unfettered discretion to issue warnings, cautions and orders under “anti-extremism” legislation lacking foreseeability and safeguards • Lack of foreseeable criteria for deducing the risk of the “extremist activity” to be prevented • No clear criteria to distinguish between non-punishable conduct, conduct that would give rise to a warning or by itself entail criminal liability • Prosecutors not required to take due account of the factors and principles developed in Court’s freedom of expression case-law • Lack of safeguards against arbitrariness and inadequate judicial review • Failure to demonstrate that the applicants’ conduct was capable of leading to violent obstructive conduct toward the authorities

Art 6 § 1 • Access to court • Unjustified discontinuation of the proceedings brought by the first applicant, with reference to the parallel proceedings brought by the second applicant

  1.  A violation of Article 6 § 1 of the Convention as regards the judicial review proceedings brought by the first applicant;
  2. A violation of Article 10 of the Convention in respect of the first and second applicants;
  3. The respondent State is to pay the first applicant, Mr Vadim Karastelev, EUR 3,000, plus any tax that may be chargeable, in respect of non-pecuniary damage; that the respondent State is to pay the European Human Rights Advocacy Centre – EHRAC (United Kingdom) EUR 850, in respect of costs and expenses.

Karelskiy and Others v. Russia, 6 October 2020

  1. A violation of Article 11 of the Convention in respect of all applicants;
  2. A violation of Articles 5 and 6 of the Convention as regards the other complaints raised under the well‑established case-law of the Court (see the appended table);
  3. The respondent State is to pay the applicants, within three months, the following amounts: the amounts indicated in the appended table, plus any tax that may be chargeable, in respect of pecuniary damage; EUR 5,000 to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage; EUR 9,350, plus any tax that may be chargeable to the applicants, in respect of costs and expenses jointly, to be paid into the representatives’ bank accounts, as indicated by the applicants.

Mikhail Mironov v. Russia, 6 October 2020

Art 6 § 1 (civil proceedings) • Impartial tribunal  • Judge’s withdrawal statement in related proceedings, merely related to facts, not giving rise to doubts as to personal impartiality • Applicant’s challenge of judge bias rejected by the judge concerned • Challenge for bias not considered an abuse of process or irrelevant and not capable of paralysing the respondent State’s judicial system • Circumstances indicating it inappropriate for judge to decide on the challenge against himself • Lack of proper response to applicant’s concerns about lack of impartiality • No remedy making good procedural defects

  1.  A violation of Article 6 § 1 of the Convention on account of the procedure for considering challenges for bias;
  2. A violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

Nadtoka v. Russia (No. 2), 6 October 2020

Art 41 • Revision of judgment in respect of deceased applicant • Award to be made to heir

  1. The Court revises its judgment of 8 October 2019 in so far as it concerns the application of Article 41 of the Convention to the claims in application no. 29097/08;
  2. The respondent State is to pay Ms Elena Vladimirovna Lukyanova, the heir of Ms Yelena Mikhaylovna Nadtoka, EUR 3,000, plus any tax that may be chargeable, in respect of non-pecuniary damage; EUR 850, plus any tax that may be chargeable to her, in respect of costs and expenses.

Svarovskiy and Others v. Russia, 6 October 2020

  1. A violation of Article 11 of the Convention in respect of all applicants;
  2. A violation of Articles 5 and 6 of the Convention and of Article 4 of Protocol No. 7 to the Convention as regards the other complaints raised under the well‑established case-law of the Court (see the appended table);
  3. The respondent State is to pay the applicants, 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, except in relation to the payment of costs and expenses payable to EHRAC, which are to be paid in euros: the amounts indicated in the appended table, plus any tax that may be chargeable, in respect of pecuniary damage; EUR 5,000 (five thousand euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;  the following amounts, plus any tax that may be chargeable to the applicants, in respect of costs and expenses: EUR 1,700 to the applicant in application no. 47800/14; EUR 9,350 jointly to the applicants in application no. 67936/14, payable to the applicants’ representatives, as indicated by the applicants; EUR 1,700 to the applicant in application no. 68196/14, payable to the applicant’s representative, as indicated by the applicant.

Udaltsov v. Russia, 6 October 2020

Art 5 § 1 • Lawful arrest or detention • Arbitrary administrative detention after charge of disobeying a lawful order by police • Lack of clarity on factual and legal elements underlying the charge • No adequate opportunity for applicant to benefit from legal assistance during trial • Domestic court’s superficial assessment of applicant’s alibi • Retention in hospital under guard of law-enforcement officers after expiry of applicant’s term of detention without justification • Deprivation of liberty with no legitimate purpose

Art 6 § 1 (criminal) and 6 § 3 (b)+(c) • Fair hearing • Adequate time and facilities • Applicant’s  lawyer notified of ongoing proceedings half an hour before hearing • Charge involving certain complexity • Applicant accused of an offence punishable by detention and under arrest at the relevant time • No reasonable opportunity to put forward a viable defence

Art 18 (+ 5 § 1) • Detention allegedly aimed at intimidating applicant and impeding his civic and political activities • Submitted arguments essentially the same as those under Article 5 • Article 18 not a fundamental aspect of the case

  1. A violation of Article 5 § 1 of the Convention on account of the administrative detention under the judgment of 4 December 2011;
  2. A violation of Article 5 § 1 of the Convention as regards the applicant’s presence in the hospital on 9 and 10 December 2011;
  3. A violation of Article 5 § 1 of the Convention on account of the administrative detention under the judgment of 10 December 2011;
  4. A violation of Article 6 of the Convention as regards the judgment of 4 December 2011 as upheld on 5 December 2011.
  5. The respondent State is to pay the applicant EUR 12,800, plus any tax that may be chargeable, in respect of non-pecuniary damage.

On 9 October 2020, RAPSI, reported: “Moscow’s Simonovsky District Court on Friday dismissed a lawsuit filed by opposition figure Sergey Udaltsov seeking lifting of an administrative supervision including a ban to attend rallies until 2021 imposed on him, RAPSI learnt from the court. In September 2018, the city’s Simonovsky District Court ordered Udaltsov to be subject to administrative supervision until August 2021 when his criminal record is to be canceled. The opposition activist was ordered to visit police twice a month, banned from attending mass rallies, demonstrations and other public events and leaving Moscow Region.  Later, he filed a complaint against this decision with the European Court of Human Rights. In 2012, organizers of mass riots in Moscow Leonid Razvozzhayev and Udaltsov were sentenced to 4.5 years in prison each based partly on testimony by Konstantin Lebedev, who was sentenced to 2.5 years in prison but released on parole.”

Velilyayeva c. Russie, 6 October 2020

  1.  Violation de l’article 6 § 1 de la Convention au regard d’équité de la procédure ;
  2. L’État défendeur doit verser à la requérante, dans les trois mois, la somme suivante, à convertir dans la monnaie de l’État défendeur au taux applicable à la date du règlement: 1 000 EUR, plus tout montant pouvant être dû à titre d’impôt sur cette somme, pour dommage moral.

Vladovskiye v. Russia, 6 October 2020

  1. A violation of Article 3 of the Convention under its substantive and procedural limbs on account of the first applicant’s ill-treatment in the Leninskiy ROVD and the lack of an effective investigation into the matter;
  2. The respondent State is to pay the first applicant, within three months, EUR 33,800, plus any tax that may be chargeable, in respect of non-pecuniary damage.

On this case Caucasian Knot reported on 6 October 2020: “The European Court of Human Rights (ECtHR) awarded 33,800 euros in compensation to Mikhail Vladovsky, a resident of Chechnya, in a case on his torture by the police, the ECtHR reported. The “Caucasian Knot” has reported that in 2006, the Prosecutor’s Office of Chechnya instituted a case on torture of Mikhail Vladovsky, a resident of the region. Policemen tortured him for refusing to confirm his alleged participation in a terror act, the “Committee Against Torture” (CaT) reported.”

Yelkhoroyev v. Russia, 6 October 2020

  1.  A violation of the substantive aspect of Article 2 of the Convention on account of Ms Zalina Yelkhoroyeva’s disappearance;
  2. A violation of the procedural aspect of Article 2 of the Convention on account of the authorities’ failure to investigate Ms Yelkhoroyeva’s disappearance;
  3. A violation of Article 3 of the Convention on account of the applicant’s mental suffering;
  4. A violation of Article 5 of the Convention on account of Ms Yelkhoroyeva’s unlawful detention;
  5. A violation of Article 13 in conjunction with Article 3 of the Convention;
  6. The respondent State is to pay the applicant, within three months, the following amounts: EUR 900, plus any tax that may be chargeable, in respect of pecuniary damage;  EUR 80,000, plus any tax that may be chargeable, in respect of non-pecuniary damage; EUR 2,500, plus any tax that may be chargeable to the applicant, to be paid into the representatives’ bank accounts, as indicated by the applicant.

Leave a Reply