CASE OF TARANENKO v. RUSSIA

1. The case originated in an application (no. 19554/05) 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, Ms Yevgeniya Vladimirovna Taranenko (“the applicant”), on 12 April 2005.
2. The applicant was represented by Ms E. Liptser, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that she had been detained in inhuman conditions, that her detention had been excessively long and that her prosecution and conviction for participation in a protest action against the President ’ s policies had violated her rights to freedom of expression and freedom of assembly.
4. On 16 March 2009 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1981 and lives in Moscow.
A. Events leading to the applicant ’ s arrest and prosecution
6. The media reported that on 14 December 2004 a group of about forty members of the National Bolsheviks Party (also referred to herein as “the Party”) occupied the reception area of the President ’ s Administration building in Moscow and locked themselves in an office on the ground floor.
7. They asked for a meeting with the President, the deputy head of the President ’ s Administration Mr Surkov, and the President ’ s economic advisor Mr Illarionov. They waved placards with “Putin, resign!” («Путин, уйди!») written on them through the window and distributed leaflets with a printed address to the President that listed ten ways in which he had failed to uphold the Russian Constitution, and a call for his resignation.
8. The intruders stayed in the office for an hour and a half until the police broke through the door. During the arrest, they did not offer any resistance to the authorities.
2. The applicant ’ s version of events
9. According to the applicant, she was not a member of the National Bolsheviks Party. She was writing a master ’ s thesis in sociology on forms of activity of radical political movements in modern Russia. On 14 December 2004 one of the members of the National Bolsheviks Party told her about the direct action in the President ’ s Administration building planned for that day. She came to witness the protest action in order to collect information for her thesis. She did not take part in the occupation of the office, but merely watched the action, took notes and pictures.
10. The indictment of the applicant states that at 12.30 p.m. on 14 December 2004 forty Party members effected an unauthorised entry into the reception area of the building used by the President of the Russian Federation ’ s Administration. Some of them pushed back the guards at the entrance and occupied room no. 14 on the ground floor. They locked themselves in, blocked the door with a heavy safe and let other members of their group enter through the window.
11. Until the police arrived, the Party members, including the applicant, waved placards through the office window, threw out leaflets and chanted slogans calling for the President ’ s resignation. They stayed in the office for approximately one hour, destroyed office furniture and equipment and damaged the walls and the ceiling.
B. The criminal proceedings against the applicant
1. Decisions concerning the extension of a custodial measure
12. On 14 December 2004 the applicant was arrested.
13. On 16 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicant ’ s detention on the grounds that she was suspected of an especially serious criminal offence, might abscond, reoffend, interfere with the witnesses or obstruct the investigation in some other way.
14. On 22 December 2004 the applicant was charged with the attempted violent overthrow of the State (Article 278 of the Criminal Code) and intentional destruction and degradation of others ’ property in public places (Articles 167 § 2 and 214).
15. On the same date the applicant asked to be released, referring to her clean criminal record, permanent residence in Moscow and permanent employment as a school teacher.
16. On 24 December 2004 the investigator refused her request, referring to the gravity of the charges, the absence of a registered residence in Moscow and the risk that she might abscond.
17. On 7 February 2005 the Zamoskvoretskiy District Court of Moscow extended the applicant ’ s detention until 14 April 200 5, finding that the grounds on which the preventive measure had previously been imposed still persisted and there was no reason to vary the preventive measure.
18. On 15 February 2005 the charges against the applicant were amended to that of a charge of participation in mass disorder, an offence under Article 212 § 2 of the Criminal Code.
19. On 8 April 2005 the Zamoskvoretskiy District Court extended the applicant ’ s detention until 14 July 2005, referring to the gravity of the charge and the risk that she might abscond or interfere with the investigation.
20. On 7 June 2005 the investigation was completed and thirty-nine people, including the applicant, were committed for trial.
21. On 30 June 2005 the Tverskoy District Court of Moscow held a preliminary hearing. It rejected the defendants ’ requests to be released. It stated that it had taken into account the defendants ’ characters, their young age, frail health, family situation and stable way of life. However, it found, referring to the gravity of the charges, that “the case file gives sufficient reasons to believe that, once released, the defendants would flee or interfere with the trial”. It therefore ordered that all defendants should remain in custody. On 17 August 2005 the Moscow City Court rejected appeals lodged by several of the applicant ’ s co-defendants.
22. On 27 July 2005 the applicant and her co-defendants lodged applications for release. On 27 July 2005 the Tverskoy District Court rejected the applications, finding that their detention was lawful and justified. In particular, it noted that their detention had been extended by the court order of 30 June 2005 and, under the Code of Criminal Procedure, that order was valid for six months. On 5 October 2005 the Moscow City Court upheld the decision on appeal.
23. On 3 August 2005 the applicant and her co-defendants filed new applications for release. On 10 August 2005 the Tverskoy District Court rejected the applications. It held:
“The court takes into account the defence ’ s argument that an individual approach to each defendant ’ s situation is essential when deciding on a preventive measure.
Examining the grounds on which ... the court ordered and extended detention in respect of all the defendants without exception ... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all the defendants, and to the personal guarantees offered by certain private individuals and included in the case file, the court concludes that, if released, each of the applicants might abscond or obstruct justice in some other way ...
In the court ’ s view, in these circumstances, having regard to the gravity of the charges, there are no grounds for varying or revoking the preventive measure in respect of any defendant...”
24. On 2 November 2005 the Moscow City Court upheld the decision on appeal.
25. During the trial the applicant and her co-defendants stated that they had taken part in a peaceful protest against President Putin ’ s policies. According to the plan of the protest action agreed in advance, they were to go to the President ’ s Administration building to meet officials and hand over a petition that listed the President ’ s ten failures to comply with the Constitution and contained a call for his resignation. They were then to talk to journalists. On 14 December 2004 they had entered the reception area of the President ’ s Administration building as planned and had gone into a vacant office on the ground floor. The guards had followed them and had hit those who had lagged behind, had pushed them into the office and had shut the door behind them. The guards had threatened to use force against the protesters. Taking fright, the protesters had locked the office door and blocked it with a metal safe. They had chanted slogans and distributed leaflets through the windows, thereby expressing their opinions about important political issues. They denied destroying any furniture or offering resistance to the police. They claimed that the furniture had been destroyed by the police officers who had broken down the door and arrested them.
26. The employees and the guards of the President ’ s Administration stated that on 14 December 2004 a group of about forty people had rushed into the President ’ s Administration ’ s reception area. They had pushed one of the guards aside, had scurried through the metal detectors and had jumped over tables and chairs. They had run into one of the offices, had locked the door and had started to chant political slogans. The police had arrived and ordered that the office be vacated. As the protesters had failed to comply, the police had broken down the door and arrested them. Some of the witnesses stated that the protesters had showed resistance to the police, in particular by preventing them from forcing open the door.
27. The police officers who had participated in the arrest stated that before breaking the door down they had ordered that the premises be vacated. Having received no response, they had forced open the door and had arrested the protesters. They denied breaking any furniture in the office, stating that it had been damaged before their arrival.
28. On 8 December 2005 the Tverskoy District Court found the applicant and her co-defendants guilty of participation in mass disorder. It found it established that the defendants had unlawfully entered the President ’ s Administration building without complying with the requisite entry formalities. In particular, they had bypassed identity and security checks and had pushed aside the guard who had attempted to stop them. They had then proceeded to one of the offices without being registered at the reception desk and without complying with the guards ’ lawful demands to leave the premises. In view of their unlawful and aggressive behaviour, they could not argue that they had participated in a peaceful political action. The court also held as follows:
“[The defendants], acting in conspiracy, committed serious breaches of public safety and order by disregarding established norms of conduct and showing manifest disrespect for society ... They effected an unauthorised entry into the reception area of the President of the Russian Federation ’ s Administration building and took over office no. 14 on the ground floor ... They then blocked the door with a heavy metal safe and conducted an unauthorised meeting, during which they waved the National Bolsheviks Party flag and placards, threw anti- [Putin] leaflets out [of windows] and issued an unlawful ultimatum by calling for the President ’ s resignation, thereby destabilising the normal functioning of the President ’ s Administration and preventing its reception personnel from performing their service duties, namely ... reception of members of the public and examination of applications from citizens of the Russian Federation ...
While performing the above disorderly acts [the defendants] ... destroyed and damaged property in the offices of the reception area of the President ’ s Administration building ... ”
29. In respect of the applicant, the court noted that it was irrelevant whether she had joined the direct action for academic or other purposes. It had been established that she had directly participated in the mass disorder together with the others. Taking into account the fact that the defendants had voluntarily compensated the pecuniary damage in the amount of 74,707.08 Russian roubles (approximately 2,200 euros) caused by their actions and that the applicant had positive character references, the court sentenced her to three years ’ imprisonment, but suspended the sentence and put her on three years ’ probation. She was immediately released.
30. In her appeal submissions the applicant complained, in particular, that she had been convicted, in breach of Article 10 of the Convention, for her participation in a peaceful assembly and for public expression of her opinions about important political issues.
31. On 29 March 2006 the Moscow City Court upheld the judgment on appeal.
32. From 16 December 2004 to 8 December 2005 the applicant was held in detention facility no. IZ-77/6 in Moscow.
33. According to the applicant, her cell, which accommodated forty inmates, was overcrowded. The applicant suffered from psoriasis ( a skin disease), chronic pyelonephritis ( a kidney infection ), chronic bronchitis and allergies. She did not receive medical treatment appropriate for her conditions.
34. According to the Government, from 17 to 20 December 2004 the applicant was held in cell no. 307, which measured 132.1 sq. m and housed thirty-two inmates. From 20 December 2004 to 13 October 2005 and from 21 October to 8 December 2005 the applicant was held in cell no. 303, which measured 123.4 sq. m and housed twenty-seven to thirty inmates. From 13 to 21 October 2005 the applicant was held in cell no. 120, which measured 22.9 sq. m and housed two inmates. The applicant had a separate bunk at all times and was provided with bedding. In support of their position, the Government submitted certificates issued by the remand centre governor on 25 June 2009 and selected pages from the prison population register which recorded, for each day, the number of sleeping bunks and the number of inmates in each of the remand centre ’ s cells.
35. Relying on certificates of the same date from the remand centre governor, the Government further submitted that all cells had been equipped with toilet facilities which were separated from the living area by a partition. There had been forced ventilation in the cells. The windows had been large and had not been blocked by shutters. The cells had had sufficient artificial light, which had been located so as not to disturb the inmates ’ sleep. There had been no insects or rodents in the detention facility, as all the cells had been disinfected every month. Hot food had been served three times a day. Inmates had been able to take an hour-long daily walk in the exercise yards. They had been allowed to take a shower at least once a week.
36. Relying on the applicant ’ s medical records, the Government submitted that the applicant had been regularly examined by specialist doctors and had been prescribed treatment when necessary.
37. Participation in mass disorder accompanied by violence, riots, arson, destruction of property, use of firearms or explosives or armed resistance to the authorities is punishable by three to eight years ’ imprisonment (Article 212 § 2 of the Criminal Code).
38. For a summary of the relevant domestic law provisions governing the conditions and length of pre-trial detention, see the cases of Dolgova v. Russia, no. 11886/05, §§ 26-31, 2 March 2006, and Lind v. Russia, no. 25664/05, §§ 47-52, 6 December 2007.
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
39. The applicant complained that the conditions of her detention from 16 December 2004 to 8 December 2005 in remand centre no. IZ-77/6 in Moscow had been in breach of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
40. The Government submitted that the conditions of the applicant ’ s detention had been satisfactory. The number of inmates in her cells had been below their design capacity and she had been provided with an individual bunk and bedding at all times. The cells had had both natural and artificial light and forced ventilation. All health and safety and hygiene standards had been met. Inmates had received food three times a day. The applicant had received medical treatment appropriate for her conditions. In sum, the conditions of her detention had been compatible with Article 3.
41. The applicant maintained her claims.
42. The Court notes that the applicant did not describe the conditions of her detention in much detail. Nor did she challenge the description of the conditions submitted by the Government, who asserted that the personal space afforded to her had exceeded four square metres and that the medical treatment she received had been appropriate for her conditions (see paragraphs 34 to 36 above). In such circumstances, the Court considers, on the basis of the information provided by the parties, that the conditions of the applicant ’ s detention did not reach the threshold of severity to fall within the ambit of Article 3 of the Convention.
43. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
44. The applicant complained under Article 5 § 1 (c) of the Convention that there had been no grounds to detain her and that the domestic courts had not had due regard to the defence ’ s arguments. Under Article 5 § 3, she complained of a violation of her right to trial within a reasonable time and alleged that the detention orders had not been based on sufficient reasons. The relevant parts of Article 5 read as follows:
“1. 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:
(c) 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;
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial ...”
45. As regards the applicant ’ s complaint that her detention was unlawful, the Court notes that on 1 6 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicant ’ s remand in custody. The applicant ’ s detention was subsequently extended on several occasions by the domestic courts.
46. The domestic courts acted within their powers in making those decisions and there is nothing to suggest that they were invalid or unlawful under domestic law. The question of whether the reasons for the decisions were sufficient and relevant is analysed below in connection with the issue of compliance with Article 5 § 3 (compare Khudoyorov v. Russia, no. 6847/02, §§ 152 and 153, ECHR 2005 ‑ X (extracts)).
47. The Court finds that the applicant ’ s detention was compatible with the requirements of Article 5 § 1 of the Convention. It follows that this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
48. As regards the applicant ’ s complaint of a violation of her right to trial within a reasonable time or to release pending trial, the Court finds that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
49. The applicant submitted that the domestic courts had not advanced “relevant and sufficient” reasons to hold her in custody for almost a year. The domestic authorities had extended her detention relying essentially on the gravity of the charge without examining her individual situation or demonstrating the existence of specific facts in support of their conclusion that she might abscond, interfere with the investigation or reoffend. She also referred to the case of Dolgova v. Russia (cited above) lodged by her co-defendant, where a violation of Article 5 § 3 had been found in similar circumstances.
50. The Government submitted that the decisions to remand the applicant in custody had been lawful and well-reasoned. She had been charged with a serious criminal offence of mass disorder committed by an organised group and accompanied by riots and destruction of property. Her pre-trial detention had therefore been justified.
51. The Court observes that the applicant was remanded in custody on 14 December 2004. On 8 December 2005 the trial court convicted her of a criminal offence, put her on probation and immediately released her. The period to be taken into consideration lasted almost twelve months.
52. The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts extended an applicant ’ s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Khudoyorov, cited above; Mamedova v. Russia, no. 7064/05, 1 June 2006; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012).
53. The Court further notes that it has previously examined similar complaints lodged by the applicant ’ s co-defendants and found a violation of their rights set out in Article 5 § 3 of the Convention (see Dolgova v. Russia, cited above, §§ 38-50; Lind v. Russia, cited above, §§ 74-86; Kolunov v. Russia, no. 26436/05, § § 48-58, 9 October 2012; Zentsov and Others v. Russia, no. 35297/05, § § 56-66, 23 October 2012; Manulin v. Russia, no. 26676/06, § § 55-62, 11 April 2013; and Vyatkin v. Russia, no. 18813/06, § § 50-57, 11 April 2013 ). In each case the Court noted, in particular, the domestic courts ’ reliance on the gravity of the charges as the main factor for the assessment of the applicant ’ s potential to abscond, reoffend or obstruct the course of justice, their reluctance to devote proper attention to a discussion of the applicant ’ s personal situation or to have proper regard to the factors pointing in favour of his or her release, the use of collective detention orders without a case-by-case assessment of the grounds for detention in respect of each co-defendant and the failure to thoroughly examine the possibility of applying another, less rigid, measure of restraint, such as bail.
54. Having regard to the materials in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Indeed, the domestic courts inferred the risks of absconding, reoffending or interfering with the proceedings essentially from the gravity of the charge against the applicant. They did not point to any aspects of the applicant ’ s character or behaviour that would justify their conclusion that she presented such risks. They gave no heed to important and relevant facts supporting the applicant ’ s petitions for release and reducing the above risks, such as her clean criminal record, permanent place of residence and employment. Nor did they consider the possibility of ensuring the applicant ’ s attendance by the use of a more lenient preventive measure. Finally, after the case had been submitted for trial in June 2005 the domestic courts issued collective detention orders, using the same summary formula to refuse the applications for release and extend the pre-trial detention of thirty-nine people, notwithstanding the defence ’ s express request that each detainee ’ s situation be dealt with individually.
55. Having regard to the above, the Court considers that by failing to address specific facts or consider alternative “preventive measures” and by relying essentially on the gravity of the charges, the authorities extended the applicant ’ s detention on grounds which, although “relevant”, cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.
56. There has accordingly been a violation of Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION
57. The applicant complained that her arrest, the detention pending trial and the sentence imposed on her at the end of the criminal proceedings had violated her right to freedom of expression under Article 10 of the Convention and her right to freedom of assembly under Article 11 of the Convention. These Articles 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 and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”
58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
59. The Government submitted that the applicant, together with other members of the National Bolsheviks Party, had effected a forcible and unauthorised entry into the premises of the President ’ s Administration and had destroyed State property there. Their protest had not therefore been peaceful. The purpose of their actions had been to attract attention to the unlawful activities of the National Bolsheviks Party, rather than to express opinions or impart information or ideas. Instead of expressing their opinions in one of the ways permitted by Russian law – such as at a public gathering, meeting, demonstration, march or a picket – they had acted in a manner constituting a criminal offence. The prosecution of the applicant for that criminal offence had not therefore interfered with her freedom of expression.
60. The Government further argued that the applicant had not been persecuted for her political opinions or demands. She had been prosecuted for participation in mass disorder involving destruction of State property. Her arrest, detention and conviction had therefore pursued the legitimate aims of protecting public order, resuming the normal functioning of the President ’ s Administration, and investigating criminal offences and punishing those responsible.
61. The applicant submitted that she had participated in a protest against the President ’ s policies, which in her opinion violated citizens ’ rights. The participants in the protest action of 14 December 200 4 had considered that a petition addressed to the President ’ s Advisor might be more effective than any of the methods of public assembly – such as public gatherings, meetings, demonstrations, marches or pickets – suggested by the Government. She argued in that connection that Article 10 protected not only the substance of the ideas and information expressed, but also the form in which they were conveyed.
62. The applicant further submitted that the protest action had been a peaceful one. The participants had entered the President ’ s Administration building with the aim of handing over a petition. Given that their protest had taken place in a locked office, their actions could not be classified as mass disorder under Russian criminal law. They had not destroyed any property; the property had been in fact damaged by the arresting police officers. The participants in the protest had moreover compensated the damage in full. In those circumstances, her arrest, remand in custody for a year and the sentence imposed on her – three years ’ imprisonment, suspended for three years – had been disproportionate to any legitimate aim.
63. According to the Court ’ s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Jersild v. Denmark, 23 September 1994, § 37, Series A no. 298 ).
64. Moreover, Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204; Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001 ‑ III; and Women On Waves and Others v. Portugal, no. 31276/05, § 30, 3 February 2009 ).
65. Similarly, the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively (see Djavit An v. Turkey, no. 20652/92, § 56, ECHR 2003 ‑ III, and Barraco v. France, no. 31684/05, § 41, 5 March 2009 ). A balance must be always struck between the legitimate aims listed in Article 11 § 2 and the right to free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places (see Ezelin v. France, 26 April 1991, § 52, Series A no. 202 ).
66. However, Article 11 of the Convention only protects the right to “peaceful assembly”. That notion does not cover a demonstration where the organisers and participants have violent intentions (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 77, ECHR 2001 ‑ IX, and Galstyan v. Armenia, no. 26986/03, § 101, 15 November 2007). Nonetheless, even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not fall outside the scope of Article 11 § 1, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that Article (see Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 103, ECHR 2011 (extracts)).
67. To sum up, the Court reiterates that any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles do a disservice to democracy and often even endanger it (see Fáber v. Hungary, no. 40721/08, § 37, 24 July 2012).
( b ) Application to the present case
( i ) Applicable Convention provision
68. The Court notes that the issues of freedom of expression and freedom of peaceful assembly are closely linked in the present case. Indeed, the protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (see Ezelin, cited above, § 37; Djavit An, cited above, § 39; Women On Waves and Others, cited above, § 28; Barraco, cited above, § 26; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 52, ECHR 2011 ).
69. The parties submitted arguments under Articles 10 and 11 together. The Court, however, considers that the thrust of the applicant ’ s complaint is that she was convicted for protesting, together with other participants in the direct action, against the President ’ s policies. The Court therefore finds it more appropriate to examine the present case under Article 10, which will nevertheless be interpreted in the light of Article 11 (see Women On Waves and Others, cited above, § 28 ).
( ii ) Existence of an interference
70. The Court has previously held that protests can constitute expressions of opinion within the meaning of Article 10. Thus, protests against hunting involving physical disruption of the hunt or a protest against the extension of a motorway involving a forcible entry into the construction site and climbing into the trees to be felled and onto machinery in order to impede the construction works were found to constitute expressions of opinion protected by Article 10 (see Steel and Others v. the United Kingdom, 23 September 1998, § 92, Reports of Judgments and Decisions 1998 ‑ VII, and Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 28, ECHR 1999 ‑ VIII ). The arrest and detention of protesters therefore constituted an interference with the right to freedom of expression (ibid.). The arrest of students who, during an official ceremony at a university, shouted slogans and raised banners and placards protesting against various practices of the university administration which they considered to be anti ‑ democratic also constituted an interference with the right to freedom of expression (see Açık and Others v. Turkey, no. 31451/03, § 40, 13 January 2009).
71. The applicant in the present case was arrested at the scene of a protest action against the President ’ s policies. She was part of a group of about forty people who forced their way through identity and security checks into the reception area of the President ’ s Administration building and locked themselves in one of the offices, where they started to wave placards and to distribute leaflets out of the windows. She was charged with participation in mass disorder in connection with her taking part in the protest action and remanded in custody for a year, at the end of which time she was convicted as charged and sentenced to three years ’ imprisonment, suspended for three years. The Court considers that her arrest, detention and conviction constituted interference with the right to freedom of expression.
(iii ) Justification for the interference
72. In order for the interference to be justified under Article 10, it must be “prescribed by law”, pursue one or more of the legitimate aims listed in the second paragraph of that provision and be “ necessary in a democratic society” – that is to say, proportionate to the aim pursued (see, for example, Steel and Others, cited above, § 89, and Lucas v. the United Kingdom (dec.), no. 39013/02, 18 March 2003).
73. It is not contested that the interference was “prescribed by law”, notably Article 212 § 2 of the Criminal Code, and “pursued a legitimate aim”, that of preventing disorder and protecting the rights of others, for the purposes of Article 10 § 2. The dispute in the case relates to whether the interference was “necessary in a democratic society”.
74. The test of necessity in a democratic society requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This margin of appreciation is not, however, unlimited, but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. The Court ’ s task in exercising its supervisory function is not to take the place of the national authorities, but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their margin of appreciation. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, among many others, Jerusalem v. Austria, no. 26958/95, § 33, ECHR 2001 ‑ II, and Krasulya v. Russia, no. 12365/03, § 34, 22 February 2007 ).
75. In assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999 ‑ IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001 ‑ I; and Skałka v. Poland, no. 43425/98, § 38, 27 May 2003 ).
76. The Court will first examine whether the “interference” complained of corresponded to a “pressing social need”.
77. It notes that the applicant and the other participants in the protest action wished to draw the attention of their fellow citizens and public officials to their disapproval of the President ’ s policies and their demand for his resignation. This was a topic of public interest and contributed to the debate about the exercise of presidential powers. The Court reiterates in this connection that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or debates on questions of public interest. It has been the Court ’ s consistent approach to require very strong reasons for justifying restrictions on political debate, for broad restrictions imposed in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned (see Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001 ‑ VIII, and Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV ).
78. That being said, the Court reiterates that, notwithstanding the acknowledged importance of freedom of expression, Article 10 does not bestow any freedom of forum for the exercise of that right. In particular, that provision does not require the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property, such as, for instance, government offices and ministries (see Appleby and Others v. the United Kingdom, no. 44306/98, § 47, ECHR 2003 ‑ VI ).
79. In the present case the protest action in which the applicant participated took place in the President ’ s Administration building. It is significant that the Administration ’ s mission was to receive citizens and examine their complaints and its premises were therefore open to the public, subject to identity and security checks. The protesters, however, failed to comply with the established admission procedure: they bypassed the identity and security checks, did not register at the reception desk and did not wait in a queue for an available official to receive their petition. Instead, they stormed into the building, pushed one of the guards aside, jumped over furniture and eventually locked themselves in a vacant office. Such behaviour, intensified by the number of protesters, could have frightened the employees and visitors present and disrupted the normal functioning of the President ’ s Administration. In such circumstances the actions of the police in arresting the protesters, including the applicant, and removing them from the President ’ s Administration ’ s premises may be considered as justified by the demands of the protection of public order (see, for similar reasoning, Steel and Others, cited above, §§ 103 and 104, and Lucas, cited above).
80. It remains to be ascertained whether the length of the applicant ’ s detention pending trial and the penalty imposed on her at the end of it were proportionate to the legitimate aim pursued (see Steel and Others, cited above, §§ 105-107).
– Overview of the Court ’ s case law
81. The Court reiterates in this connection that the Contracting States do not enjoy unlimited discretion to take any measure they consider appropriate in the name of the protection of public order. The Court must exercise the utmost caution where the measures taken or sanctions imposed by the national authorities are such as to dissuade the applicants and other persons from imparting information or ideas contesting the established order of things (see Women On Waves and Others, cited above, § 43 ).
82. The Court has had several occasions to assess the proportionality of sanctions imposed for unlawful conduct involving some degree of disturbance of public order. Thus, in the case of Steel and Others v. the United Kingdom the Court examined two situations. The first situation concerned a protest against a grouse shoot involving a group of about sixty people attempting to obstruct a hunt. The Court considered that in such circumstances forty-four hours ’ detention pending trial and sentencing to twenty-eight days ’ imprisonment was proportionate to the legitimate aim of protecting public order. The second situation concerned a protest against the construction of a motorway. The participants repeatedly broke into a construction site, where they climbed into trees to be felled and onto some of the stationary machinery and placed themselves in front of machinery in order to impede the engineering works. The Court considered that seventeen hours ’ detention pending trial and sentencing to seven days ’ imprisonment for such disorderly behaviour was compatible with the requirements of Article 10 (see Steel and Others, cited above, §§ 105 – 109).
83. In Drieman and Others v. Norway the Court examined the proportionality of the sanction imposed on participants in a direct action against whaling carried out by Greenpeace. The direct action consisted of manoeuvring boats in such a manner as to obstruct whaling by, on each occasion, placing the boat between the hunting vessel and the whale, thereby making it impossible to harpoon the whale. Whereas the Court left open the question as to whether that particular conduct could be covered by the guarantees set out in Articles 10 and 11, it found that by imposing a criminal fine on the participants the national authorities had acted within their margin of appreciation (see Drieman and Others, cited above).
84. Further, in the case of Lucas v. the United Kingdom the Court found that four hours ’ detention pending trial and sentencing to a fine for blocking a public road to protest against the retention of a nuclear submarine were proportionate to the legitimate aim of protecting public order in view of the dangers posed by the protesters ’ conduct in sitting in a public road (see Lucas, cited above).
85. Similarly, in the case of Barraco v. France the Court held that a suspended sentence of three months ’ detention for blocking a highway by the participants in a go-slow protest organised by a trade union was proportionate to the legitimate aims pursued. The Court noted that the applicant had not been punished for his participation in the demonstration itself, but rather for particular behaviour in the course of the demonstration, namely the repeated and intentional blocking of a public road, thereby causing more obstruction than would normally arise from the exercise of the right of peaceful assembly (see Barraco, cited above, §§ 41-49 ).
86. The Court also takes note of the case of Osmani and Others v. the former Yugoslav Republic of Macedonia. In that case the applicant, the mayor of a town, stated in a speech made during a public assembly his refusal to remove an Albanian flag, in defiance of a decision of the Constitutional Court. That speech triggered a fight between those citizens who wanted to remove the flag and those who wanted to keep it. After that incident, that applicant organised an armed vigil to protect the Albanian flag. The police later found weapons in the town hall and in the applicant ’ s flat. On the same day as they found the cache of weapons, the police were attacked by a group of about 200 people, who were armed with metal sticks and threw stones, rocks, Molotov cocktails and teargas projectiles at them. The Court found that in the very sensitive interethnic situation of that time the applicant ’ s speeches and actions had encouraged interethnic violence and violence against the police. When assessing the proportionality of the sanction, the Court took into account that, although the applicant had been sentenced to seven years ’ imprisonment, due to an amnesty he spent only one year and three months in prison. Therefore, even if the original sentence could be considered severe, the term actually spent in prison could not be considered disproportionate, regard being had to the facts of the case (see Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001 ).
87. An analysis of the Court ’ s case-law cited above reveals that the Contracting States ’ discretion in punishing illegal conduct intertwined with expression or association, although wide, is not unlimited. It goes hand in hand with European supervision by the Court, whose task is to give a final ruling on whether the penalty was compatible with Article 10 or 11. The Court must examine with particular scrutiny the cases where sanctions imposed by the national authorities for non-violent conduct involve a prison sentence.
88. Another important principle that transpires from the Court ’ s case- law is that participants in a demonstration which results in damage or other disorder but who do not themselves commit any violent or otherwise reprehensible acts cannot be prosecuted solely on the ground of their participation in the demonstration. Thus, in the case of Ezelin v. France the applicant was sentenced to a reprimand for participating in a demonstration which resulted in public property being damaged by offensive and insulting graffiti, the perpetrators of which were never identified. When finding a violation of Article 11, the Court held that the freedom to take part in a peaceful assembly was of such importance that a person could not be subjected to a sanction – even one at the lower end of the scale of disciplinary penalties – for participation in a demonstration, so long as that person did not himself commit any reprehensible act on such an occasion (see Ezelin, cited above, § 53).
89. That approach was further confirmed in the cases of Yılmaz and Kılıç v. Turkey and Schwabe and M.G. v. Germany. Thus, in the case of Yılmaz and Kılıç the Court found that four years ’ imprisonment for participating in a demonstration during which slogans calling for violence had been chanted by the crowd was disproportionate to the legitimate aim of protecting public order and therefore incompatible with Article 10. When assessing the proportionality of the sanction, the Court took into account, among other things, that it had been never established whether the applicants had taken part in chanting the violent slogans (see Yılmaz and Kılıç v. Turkey, no. 68514/01, § § 65-69, 17 July 2008 ). Finally, the case of Schwabe and M.G concerned the applicants ’ arrest immediately before the commencement of a demonstration against a G8 summit. A similar demonstration the day before had ended with rioting, involving well-organised violent demonstrators who had attacked the police with stones and baseball bats. The Court noted that it had not been shown that the applicants had had violent intentions in seeking to take part in G8-related demonstrations. In such circumstances, their detention for almost six days in order to prevent them from participating in a demonstration that risked becoming violent had failed to strike a fair balance between the aims of securing public safety and the prevention of crime and the applicants ’ interest in freedom of assembly (see Schwabe and M.G., cited above, § § 105 and 114- 119).
90. Turning now to the present case, the Court notes that the applicant ’ s conviction was at least in part founded on the domestic courts ’ condemnation of the political message conveyed by the protesters. Indeed, the applicant was accused of “ throwing anti-[Putin] leaflets” and “ issuing an unlawful ultimatum by calling for the President ’ s resignation ” (see paragraph 28 above). At the same time, it is significant that the applicant was not convicted for expression of an opinion alone, but rather for expression mixed with particular conduct.
91. The Court notes that the participants in the protest action came to the President ’ s Administration building to meet officials, hand over a petition criticising the President ’ s policies, distribute leaflets and talk to journalists. They were not armed and did not resort to any violence or force, except for pushing aside the guard who attempted to stop them. The disturbance that followed was not part of their initial plan but a reaction to the guards ’ attempts to stop them from entering the building. Although that reaction may appear misplaced and exaggerated, it is significant that the protesters did not cause any bodily injuries to the guards, any other employees of the President ’ s Administration or visitors. Indeed, the charges against them did not mention any use or threat of violence against individuals or infliction of any bodily harm to anyone.
92. Further, it is true that the protesters were found guilty of damaging the President ’ s Administration ’ s property. The Court, however, notes that the domestic courts did not establish whether the applicant had personally participated in causing that damage or had committed any other reprehensible act. It is also significant that before the end of the trial the defendants compensated all the pecuniary damage caused by their protest action.
93. The above circumstances lead the Court to conclude that the present case is different from Osmani and Others because the protesters ’ conduct, although involving a certain degree of disturbance and causing some damage, did not amount to violence. It is therefore closer on the facts to Steel and Others, Drieman and Others, Lucas and Barraco.
94. The exceptional severity of the sanction, however, distinguishes the present case from the cases of Steel and Others, Drieman and Others, Lucas and Barraco, where the measures taken against the applicants in comparable circumstances were considered to be justified by the demands of public order. Indeed, in none of those cases was the sentence longer than a few days ’ imprisonment without remission, except in one case ( Barraco ) where it amounted to a suspended sentence of three months ’ imprisonment which was not, in the end, served. The Court accordingly considers that the circumstances of the instant case present no justification for being remanded in custody for a year and for the sentence of three years ’ imprisonment, suspended for three years.
95. The Court therefore concludes that, although a sanction for the applicant ’ s actions might have been warranted by the demands of public order, the lengthy period of detention pending trial and the long suspended prison sentence imposed on her were not proportionate to the legitimate aim pursued. The Court considers that the unusually severe sanction imposed in the present case must have had a chilling effect on the applicant and other persons taking part in protest actions (see, mutatis mutandis, Cumpǎnǎ and Mazǎre, cited above, § 116).
96. In view of the above, and especially bearing in mind the length of the pre-trial detention and the exceptional seriousness of the sanctions involved, the Court finds that the interference in question was not necessary in a democratic society.
97. There has therefore been a violation of Article 10 of the Convention interpreted in the light of Article 11.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
98. Lastly, the Court has examined the other complaints submitted by the applicant, and, having regard to all the material in its possession and in so far as they fall within the Court ’ s competence, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
99. 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.”
100. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.
101. The Government submitted that the claim was excessive. In their opinion, the finding of a violation would constitute sufficient just satisfaction.
102. The Court considers that the applicant has suffered non-pecuniary damage as a result of her detention and criminal sentence which were incompatible with the principles of the Convention. The damage cannot be sufficiently compensated by a finding of a violation alone. Making its assessment on an equitable basis, the Court awards the applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
103. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.
104. The Court 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 complaints concerning the excessive length of the applicant ’ s pre-trial detention and the interference with her rights to freedom of expression and freedom of assembly admissible and the remainder of the application inadmissible;