Published: 22 Jun 2020 | By Tim Mosk
Razvozzhayev v. Russia & Ukraine and Udaltsov v. Russia
Forum: European Court of Human Rights (“ECtHR”)
Case No.: 75734/12 and 2 others
Judgment date: 19 November 2019
The applicants are Russian nationals and residents of Moscow.
Mr. Udaltsov was one of the organisers of protests against alleged abuses and falsifications in the elections to Russia’s State Duma and the presidential elections held on Moscow’s Bolotnaya Square on 6 May 2012. The rally escalated into confrontations between demonstrators and riot police. The authorities later opened a criminal investigation into alleged mass disorder and violent acts against the police.
On 5 October 2012 a pro-government TV channel aired a propaganda film which claimed that the applicants were planning mass riots in Russia and discussing methods of raising funds from abroad. A criminal investigation into suspected conspiracy to organise mass disorder was later opened against the applicants and others.
Subsequently, Mr. Udaltsov was placed under house arrest, from February 2013 until his conviction in July 2014, and his assets were frozen beyond the end of the criminal proceedings.
Mr. Razvozzhayev was an assistant to a State Duma deputy at the time of the protests. He fled to Kyiv on 19 October 2012 to apply for asylum. Mr. Razvozzhayev later stated that he was abducted in Kyiv by unidentified individuals and driven back to Russia against his will, where he was tortured and forced to confess to the offence of conspiracy to organize mass riots. Mr. Razvozzhayev alleged that his kidnappers were Russian state agents acting with the tacit support of the Ukrainian authorities. He presented statements of eyewitnesses to the abduction.
In July 2014 the Moscow city court found both applicants guilty of organising mass disorder and sentenced them each to four and a half years in prison. The first applicant was also found guilty of unlawful border crossing. Their appeals were later rejected.
The applicants complained of violations under Art. 3, 5, 6, 10, 11 and 18, and Art. 1 Protocol 1. The ECtHR found it appropriate to examine both applications jointly in a single judgment because of their similar subject matter.
Firstly, the ECtHR found a violation by Ukraine and Russia of the procedural guarantees under Art. 3 and Art. 5 on the grounds that neither of the respondent States had taken the necessary steps to carry out an effective investigation into Mr. Razvozzhayev’s allegations of abduction and ill-treatment, even though his claims were plausible.
Secondly, the ECtHR held that there had been a violation by Russia of Art. 6(1)(3)(b) on account of Mr. Razvozzhayev’s excessively intense hearing schedule and lengthy prison transfers. His confinement in a glass cabin in the courtroom was also in violation of Art. 6(1)(3)(b) and (c).
Thirdly, the ECtHR found a violation of Art. 8 by Russia on account of the refusal by the authorities to permit Mr. Razvozzhayev to visit his seriously ill mother, and subsequently to attend her funeral, as well as his transfer to a remote prison.
The ECtHR held that there had been a violation of Art. 11 by Russia against Mr. Udaltsov, because his conviction was not proportionate to the legitimate aim of preventing disorder and crime and protecting the rights of others, as well as a further violation of Art. 1 of Protocol No. 1 because of the the unlawful freezing of Mr. Udaltsov’s assets beyond the criminal proceedings. The Court additionally stressed the “chilling effect” of the sanction on opposition supporters and on the public at large.
Mr. Razvozzhayev and Mr. Udaltsov
The ECtHR found violations of Art. 6(1) by Russia as regards to both applicants on account of the appearance of a former co-defendant as a witness in the applicants’ criminal case after his conviction in separate accelerated proceedings based on plea bargaining without prior adversarial scrutiny.
The ECtHR held that there has been a violation by Russia of Art. 5(3) as regards both applicants. Mr. Razvozzhayev was detained for more than one year and nine months on grounds which were relevant for the initial detention, period but not sufficient to justify remanding him in custody for such an extended period. Likewise, the authorities failed to demonstrate the persistent risk of Mr. Udaltsov absconding and reoffending to justify the extensions of his house arrest for a period of over seventeen months.
The Court awarded €11,000 and €4,000 to Mr, Razvozzhayev (to be paid respectively by Russia and Ukraine) and €9,000 to Mr. Udaltsov (to be paid by Russia) in non-pecuniary damages.
The Bolotnaya Square protests were a reaction by civil society to alleged electoral abuses. They only constituted one of the largest opposition rallies witnessed during the administration of President Putin, but also resulted in one of the harshest crackdowns on civil society since the collapse of the Soviet Union. More than 30 people were officially accused by the authorities of “mass disorder”, and around 20 people, including the applicants, were convicted. Protest laws were later tightened, and the NGO Law on “Foreign Agents” and internet restriction legislation were adopted, among other measures.
This is not the first ECtHR judgment relating to the protests (e.g. Frumkin v Russia (No. 74568/12) – litigated by EHRAC and Memorial HRC). But in previous cases, the applicants had been convicted of participation in “mass disorder”. In the present case, the convictions were for organising “mass disorder”.
While the ECtHR ruled in favour of the applicants on most of the alleged violations, there were several missed opportunities in the findings, which were addressed by several judges in dissenting and concurring opinions.
Although Mr. Razvozzhayev argued that he had been abducted in Ukraine by Russian state agents and brought back to Russia with the cooperation of the Ukrainian authorities, the Court only found a violation of the procedural guarantees of Art. 3 and Art. 5. Judges Lemmens, Yudkivska and Pinto de Albuquerque commented that there was sufficient enough evidence to have concluded that there was also a substantive violation of both Art. 3 and Art. 5 by both Russia and Ukraine.
Most significantly, the majority declared inadmissible Mr. Razvozzhayev’s complaint under Art. 11 because, in their opinion, he had led a number of individuals to break through the police cordon on Bolotnaya Square, which had resulted in an escalation of violence. His acts, the judges ruled, therefore fell outside the notion of “peaceful assembly”.
But the dissenting judges argued that Mr. Razvozzhayev’s intentions had to be scrutinised in greater detail. In particular, they noted the testimony of a witness who spoke of “push[ing] the police cordon back to the agreed limits of the meeting venue”, which, the dissenting judges claimed, was not a firm basis for holding that Mr. Razvozzhayev’s conduct was not “peaceful”.
The strict approach adopted by the majority may result in weaker protections of the right to freedom of peaceful assembly in the future.
Read the full judgment on HUDOC.
For more context, see EHRAC’s blog: ‘Russian authorities failed to ensure the right to protest during the 6 May 2012 Bolotnaya Square demonstration’.