THIRD SECTION

CASE OF KHARITONOV AND OTHERS v. RUSSIA

(Applications nos. 79256/17 and 6 others –
see appended list)

JUDGMENT

STRASBOURG

10 November 2022

This judgment is final but it may be subject to editorial revision.

In the case of Kharitonov and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Darian Pavli, President,

Andreas Zünd,

Frédéric Krenc, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 20 October 2022,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2.  The Russian Government (“the Government”) were given notice of the applications.

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings. Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

1. JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLE 6 § 1 of the Convention

6.  The applicants complained principally of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings. Mr Gerbst (application no. 13782/20) also complained that he had been unable to confront the police officers who had recorded his arrest. The applicants relied, expressly or in substance, on Article 6 of the Convention, which reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.

...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him[.]”

7.  The relevant principles of the Court’s case-law concerning the requirement of impartiality under Article 6 § 1 of the Convention can be found in the leading case of Karelin v. Russia, no. 926/08, §§ 51-57, 20 September 2016, with further references). In that case the Court assessed the national rules of administrative procedure and concluded that statutory requirements allowing for the national judicial authorities to consider an administrative offence case which falls within the ambit of the Article 6 of the Convention under its criminal limb, in the absence of a prosecuting authority, was incompatible with the principle of objective impartiality set out in Article 6 of the Convention.

8.  Having examined all the material submitted to it, having dismissed the Government’s objection of non-exhaustion of domestic remedies (see Smadikov v. Russia (dec.), no. 10810/15, 31 January 2017) and having taken into account the issue of compliance with the six-month period under Article 35 § 1 of the Convention (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022, in which the Court addressed the COVID-related extension of the period in question), the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.

9.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.

10.  In view of the above findings, the Court does not consider it necessary to examine the remainder of Mr Gerbst’s submissions under Article 6 §§ 1 and 3 (d) of the Convention.

3. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11.  In applications nos. 10927/20, 13358/20, 13782/20, 30706/20 and 33467/20, the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see the appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well-established case-law (see Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019, concerning escorting and administrative arrest procedures; and Frumkin v. Russia, no. 74568/12, §§ 93-142, 5 January 2016, concerning disproportionate measures against organisers and participants of public assemblies).

4. APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  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.”

13.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Kuratov and Others v. Russia [Committee], nos. 24377/15 and 2 others, 22 October 2019), the Court considers it reasonable to award the sums indicated in the appended table.

14.  The Court further 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. Decides to join the applications;
2. Declares the complaints about the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings and other complaints raised under the well-established case-law of the Court, as listed in the appended table, admissible and decides that it is not necessary to examine separately the remainder of the complaints raised under Article 6 of the Convention in application no. 13782/20;
3. Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings;
4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see the appended table);
5. Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 10 November 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Darian Pavli
 Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 6 § 1 of the Convention

(lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings)

[1] Plus any tax that may be chargeable to the applicants.