Effective remedies and access to justice in the context of freedom of assembly in Russia

Доклад на русском языке: Средства защиты и доступ к правосудию в контексте свободы собраний

The following is the input submitted by OVD-Info to the mandate of the Special rapporteur on the rights to freedom of peaceful assembly and of association for his report to be presented at the 47th session of the Human Rights Council. The report will be devoted to accountability and access to justice in the context of the rights to freedom of peaceful assembly and of association and the crucial role lawyers play in securing the enjoyment of such freedoms.

Our submission is based on the current information available before 30 January 2021. Since it has been submitted, we have faced new mass violations of the rights to defense, due process and access to justice of those excercising their freedom of assembly, particularly during a wave of January–February 2021 rallies. You can read more in our report Crackdown on peaceful protests in January — February 2021 in Russia.

Effective remedies and accountability

The right to freedom of assembly is most often violated during the notification and conciliation procedure for the event, as well as a result of forceful dispersal and prosecution of assembly participants.

Code of Administrative Procedure

In 2015, the Code of Administrative Procedure was adopted, which requires the courts to consider complaints about bans and other restrictions on holding public events in a reduced time — before the day of the event or on the same day, even on a weekend.

If the appeal is granted after the expected date of the assembly, the mere recognition of such refusal as illegal does not lead to the loss of the victim status. At the same time, in this procedure it is impossible to recover compensation for non-pecuniary damage, which requires the initiation of separate proceedings within the civil procedure with the burden of proof shifting to the plaintiff.

In 2019, the courts heard 1,099 cases on public event bans, of which in 498 cases the courts ruled in favor of the plaintiffs (and partially in 93). 230 decisions were made after the legal deadline.

In 2018, an alternative jurisdiction at the plaintiff’s place of residence was introduced to appeal against the actions of the authorities, which should improve access to justice, but the courts, despite the law, sometimes refuse to consider such claims at the plaintiff’s place of residence.

Code of Administrative Offenses

When hearing cases against organizers and participants of a rally, the courts in practice take for granted the version of the events by the police, acquittals are extremely rare. For instance, of the 3,275 cases of violations at rallies brought before the Moscow courts in 2019, only 23 were discontinued. When considering the case, the courts presume the formal illegality of the rally that was not properly notified and negotiated, indicating that it is necessary to prove its legality in another procedure (Code of Administrative Procedure). The courts do not apply, despite the requirements of national law, the provisions of international treaties guaranteeing the right to freedom of assembly, including the International Covenant on Civil and Political Rights, do not assess the necessity and proportionality of interference, often referring only to their provisions that allow for the restriction of this right.

The courts do not question the application of restrictive measures (escorting and detention in the police station), the legality of detention exceeding the statutory period, violations of defense rights by the police (for example, barring lawyers from the police station, seizing phones, not allowing detainees to get a lawyer), indicating that these issues should be resolved in administrative proceedings (Code of Administrative Procedure).

Even in case of acquittal the costs incurred and moral damages are not granted automatically, the acquitted must file a civil case, where it is upon them to prove the illegality of the persecution, and that damages resulted from such prosecution. The court is not bound by the previous findings on the illegality of administrative proceedings, which places an excessive burden on the aggrieved, the compensation is unequivocal only in case administrative arrest that has been served is overturned.

Thus, in practice, the courts impose on a participant of a formally illegal rally, who claims a violation of their rights, the need to conduct from three to four separate trials, in different procedures.

Criminal Code

Demonstrations against the government are often dispersed by the police with the use of excessive violence and cruelty. Participants of the rallies are subject to criminal prosecution for violence against police officers, even for reflex movements made during torture in a helpless position.

The investigative authorities do not respond to allegations of abuse of authority and torture by law enforcement. After the summer protests of 2019, the Committee against Torture (Russian NGO) was forced to file five complaints to the ECHR in connection with the failure to investigate torture.

Police officers broke Konstantin Konovalov’s leg after his arrest, and the court confirmed the legality of the refusal to conduct an investigation. The detained Daria Sosnovskaya was hit in the stomach by a police officer, his identity was not established, the court refused to even consider the complaints.

Criminal and administrative liability for violation of rights

Article 5.38 of the Code of Administrative Offenses provides for liability for hindering the organization or conduct or participation in a legitimate public action (or for forcing participation) in the form of a warning or a small fine. In practice, it is very rarely enforced. In 13 years, 60 persons were fined under this article, 8 warnings were issued, and 41 cases were dismissed. Of these, only 32 are officials.

Article 149 of the Criminal Code provides for liability for unlawful obstruction of an assembly, or coercion to participate using official position or threats. Although this practice exists, no charges have ever been brought.

Other accountability mechanisms

The court has the right to make a special ruling but barely ever does, and it also does not imply the restoration of rights or the prosecution of the person against whom it is made. We know about a special ruling issued to the chief of police for the false testimony of his subordinates, which formed the basis for the charges to protesters; in overturning the court’s decision on the placement of an activist in a psychiatric hospital; and for unknown procedural violations in the New Greatness organisation case. We are only aware of cases of disciplinary action against a police officer for two of his subordinates having worn badges with the same personal numbers; and for failing to show an id during an arrest. We are not aware of any penalties for gross violations of the rights of protesters during detention.

Effective remedies: influence on the opening of civic space

For example, on March 26, 2017, the court in Novosibirsk reviewed, on a weekend, on the eve of a protest, a complaint against the failure to accept the notification of one of the all-Russian opposition politician rallies and deemed the ban illegal; the rally took place and passed off without detention and prosecution of participants, allowing them to express their opinion on important public issues. However, this example had been an exception, and appeals against other refusals to approve anti-government actions that were taking place throughout Russia were futile.

In 2019 and in 2020, activists and lawyers from the Republic of Komi and the Samara Region managed to succeed twice in the Russian Constitutional Court, appealing against territorial bans on holding rallies. As a result of these achievements, a large-scale lifting of some regional bans began, which significantly expanded the space for the freedom of assembly.

Access to justice

Minimal but commendable efforts have been made by the Government to improve access to justice, but significant room for improvement remains, and coronavirus restrictions and court practices during the pandemic are seriously undermining such efforts.

The federal courts website has been launched, which publishes scheduled hearings, outcomes and the texts of judicial acts. However, assigned cases are not always published, especially for people brought to the courthouse from the police station, which often happens after protest actions. Information is published with errors and delays, intermittently, important circumstances including the sanction, are depersonalized in the decision texts. Other procedural documents and texts of the complaints are not published, making access to justice more difficult.

In the capital of Russia, Moscow, the courts have their own website, where you can also subscribe to email updates on the case, which improves access to justice. Also on the Moscow website there is a personal account, which involves getting acquainted with the materials in electronic form, but in practice, courts refuse to send over documents from the casefile and explain the reasons for such refusal. The Code of Administrative Offenses is the procedure almost all the detained protesters face and the only procedure for which electronic filing of appeals and motions is not foreseen (as opposed to criminal and civil).

Courts, in violation of the law, do not mail the texts of appeal decisions to the defendant and the defense lawyer, making it more difficult to appeal decisions, and access to court buildings is limited due to the pandemic.

We are aware of cases where detainees are not allowed to enter the courthouse for their own hearing because of the symbols they wear, such as a T-shirt with President Putin on it. Lawyers may also be barred from the court due to coronavirus restrictions, depriving the defense of the opportunity to discuss the plea and the case beforehand, and the detainees whose phone was seized of an opportunity to contact their lawyer.

If the defendant is brought to court from the police station, he is constantly guarded by police officers and bailiffs, which excludes confidential communication with the defense lawyer. The defense is not always allowed to get acquainted with the case materials.

The Code of Administrative Offenses gives the accused the right to petition for his case to be heard by the court in the district where they live. However, only for violations at rallies and disobedience to police officers (the most frequent articles imputed to protesters), the case can only be heard at the place where the protocol on an administrative offense was drawn up. This makes it difficult to access justice for 1) persons who do not live at the place where the protocol was drawn up, and 2) persons who are taken to police stations dozens of kilometers away from the city.

Access to legal aid

Although the Code of Administrative Offenses does not provide for the provision of free legal aid in the interests of justice, this right is guaranteed by the Constitution and international law, which must be applied directly by judges. We are not aware of any such assistance having been provided in administrative offense proceedings for violations related to the exercise of the right to freedom of assembly. The draft Code of Administrative Offenses, which would have provided for a free legal aid, was not adopted.

Cases of violations at rallies are often handled pro bono by human rights defenders, but the amount of assistance depends on the availability of intermittent (often crowd-funded) funding. During mass rallies, when protesters are held in many police stations, and court sessions take place in dozens of courts simultaneously, solely human rights defenders are not enough. However, it happens that lawyers and citizens refuse to cooperate with organizations that are foreign agents.

Private lawyers do not specialize in such cases, as they require an understanding of special legislation, law enforcement practices, positions and explanations of higher courts and international law. Representation by private lawyers is so expensive (it is comparable to the usual fine and is more than the minimum wage), and the chances of success in national courts are so small that those involved rarely resort to their services.

Positive features of the process within the Code of Administrative Offenses is that the defendant does not bear the costs, for example, for calling in witnesses and experts; that admittance as a defender of non lawyers and persons without legal education is allowed.

The acquitted person can file a civil claim and demand compensation for the costs incurred by the defense lawyer, but this is associated with great procedural difficulties, as the burden of proof is on him, the courts are not bound by the presumption of illegality of the prosecution and do not award compensation for actual and reasonable costs. Contingency fees are not recognized for the purpose of claiming costs and expenses, which makes it even more difficult for a citizen to obtain legal assistance.

Access of lawyers to clients detained in police stations

The common practice, which is not based on the law, includes taking away the phones of the detainees at mass rallies in the police station or already in a police bus. That way detainees are deprived of the opportunity to receive legal advice, to inform other people of their detention. Already after the rallies on January 23, 2021, we know about several dozen police stations where this practice was used. When the protesters are charged under an article which provides for an administrative arrest as a punishment, they are often brought directly to the court from the police station after one or two days there, without giving them an opportunity to contact the defense lawyer.

The defender must be admitted from the moment of drawing up the first report, that is, from the escorting to the police department. The powers of a defender who is not an attorney are confirmed by a power of attorney, which is impossible to issue in the police station or to transfer to a jurist waiting near the police department in such conditions. Police officers also often refuse to consider a motion to allow the defender enter the case or give writing materials, and there are no effective remedies.

An attorney does not need a power of attorney, but in such a case, in order to prevent him or her from entering, the police departments declare a Fortress plan — a secret contingency plan to repel an armed attack on the station. At the same time, there are no signs of a real threat or a response to it, everyone is allowed in the department, except for the lawyer, including the food deliverers. In the last 2 years alone, our lawyers have informed us about several dozen cases of non-admission to the police department to detainees in connection with the implementation of the Fortress plan. Attorney Maria Eismont appealed the introduction of such a plan in the Moscow police department and the violation of the right to defense, but the courts of two instances found no violations, the court of cassation returned the case for a new trial — after more than a year, no decision was made, the restoration of the right to defense is impossible. Attorney Mark Alekseev appealed this refusal in St. Petersburg, and it was declared illegal.

In other cases, lawyers are simply not allowed in, with explanations ranging from «you need to wait», «there is no order to let you in», «there is an order to not let you in» to giving no reason at all.

Sometimes force is used against lawyers of detainees at protest actions: for example, the police carried out attorney Dmitry Zakhvatov from his client, who was detained at the rally. Anton Yadrov was admitted in the police station as a defender, and then forcibly removed from the building. Jurist Anna Fomina was pushed out of the department allegedly because of the lack of the attorney status (not required by law). Attorney Leonid Solovyov was pushed out of the police department, where his client was taken. Attorney Ilya Sidorov was taken out of the police department, where his clients detained at the rally were held. Attorney Sergey Telnov was subjected to violence after the non-admission, and on another occasion he was threatened with rape.

Attorney Mansur Gilmanov was arrested for 5 days for disobeying a police officer when he went to the station to his client; he was beaten up. The police have also refused to let in the station his attorney.

Attorney Mikhail Benyash was arrested for 5 days for organizing a rally without notice. The court considered the provision of legal aid to be such «organization», referring to the position of the higher courts that «other actions» fall under «organization» in this article, namely in this case «calls to perform other actions directly related to an unauthorized public event, including providing legal assistance to participants of the said event».

It is when considering «rally» cases that the courts do not assess the violation of the detainee’s right to defense.

Access to justice in the context of freedom of assembly of representatives of certain groups

LGBT rallies are never approved by the authorities, and the courts do not recognize such refusals as illegal. Because of the law that prohibits expressing the view that same-sex (in the text of the law — 'non-traditional') sexual relations are normal, it is impossible to conduct such actions in practice. The police and the courts do not take into account the needs of transgender people.

Minors are not prohibited from participating in rallies, but they are under pressure through state media, state authorities, and educational institutions trying to have a chilling effect on their exercise of the right to freedom of assembly. Activists are threatened with expulsion from schools, colleges and universities only for the intention to attend the rallies, the deprivation of their parents’ parental rights; the security forces conduct interrogations. We are aware of cases of expulsion from educational institutions for violating the rules of participation in an assembly. Without parents, minors detained in police stations cannot use the help of a lawyer, and the parents themselves are not always allowed to visit the children at the station. The child protection services use their powers to put pressure on minors with an active civil position and their parents, and there are no effective means of protection from the guardianship authorities.

For the low-income, an additional chilling effect is provided by high financial risks: participation in an assembly can lead to a fine of up to 23 minimum wages or up to 30 days of arrest, during which a person can not work and earn income, providing for a family.

Elderly and chronically ill people in some regions have been banned from leaving their homes during the pandemic under the threat of prosecution, which deprives them of access to justice.

Not all courts have a barrier-free environment for people with disabilities. Police officers refuse to transfer medicines to detainees and call an ambulance.

The courts refuse to provide an interpreter to persons who do not speak Russian well.

The role of the Special Rapporteur

In our view, the Special Rapporteur can contribute to ensuring access to justice for those exercising the right to freedom of assembly by disseminating best practices, encouraging reforms, sending concrete proposals to Governments, and mediating between civil society and the Government.

We invite the Special Rapporteur to visit Russia and examine the situation on the ground.

An inspiring story about the role of lawyers in exercising the right to freedom of assembly

With limited access to justice in national courts in cases involving freedom of assembly, international mechanisms are often the only chance for justice. However, applying to these authorities requires special expertise. Lawyers and programmers of OVD-Info and Memorial Human Rights Center have created a web service for automated collection of violations of the basic rights of rally participants and preparation of complaints to international courts. Only thanks to such a generator, we were able to file more than 500 complaints to the European Court of Human Rights. Also, OVD-Info attracts and trains new lawyers, advises citizens, distributes best practices, prepares and distributes instructions, legal positions and document templates, expanding citizens’ access to justice, especially in the regions.

Necessary measures in the context of freedom of assembly

Article 5.38 of the Code of Administrative Offenses should be applied in practice. Draft law establishing in the Code of Administrative Offenses liability for illegal refusal to approve a public event in the form of a fine (and in case of repeated violation — disqualification of an official from 1 to 3 years) should be adopted, the investigation should be initiated after every overturned refusal.

OVD-Info and Memorial Human Rights Centre proposals (p. 41, § 137) to reform the legislation on freedom of assembly should be adopted, comments on the proposed draft Code of Administrative Offenses should be taken into account, the procedural rules of the Code should be clarified to exclude their inconsistent application by the courts, the positions of international bodies and courts should be implemented in law and practice. Amendments should be made to clarify the provisions on appeal and access of defenders.

All facts of police violence against protesters should be investigated.

The Code of Administrative Offenses should provide for electronic familiarization with materials, electronic filing of appeals and motions, and the provision of a defender in the interests of justice. Amendments should be made to clarify the provisions on appeal and access of defenders.

Organizations that provide legal assistance to detainees should be encouraged by the government.

All law enforcement at public events must wear large individual numbers. Records from the police officers’ body cameras must be attached to the case file, and — when the conditions and time of detention in the police station are challenged — from the police station. The courts must subpoena the records of the surveillance cameras on demand and without delay.

It is necessary to regulate the procedure for getting acquainted with the case materials as soon as possible, even in the context of a pandemic. Both judges and officials should be disciplined for violating the rights of defence. The Fortress plan must be published; it should provide for an immediate admission of defenders to detainees, even if the plan is in place, the grounds for its introduction must be immediately confirmed by the prosecutor or the court.

Data on the (non-) approval of each event, on the disciplinary and other liability of police officers and officials for actions related to the conduct of events, must be public.

It is necessary to educate judges, establish a dialogue between the judicial and human rights community.