Credit: CherryX via Wikimedia Commons
On October 11, 2016, the European Court of Human Rights (ECtHR) unanimously held that the government of Russia violated the rights of Garri Kasparov, a political activist and well-known chess player, to liberty and security of person and to freedom of assembly under articles 5 and 11 of the European Convention on Human Rights. See ECtHR, Kasparov v. Russia, no. 53659/07, Judgment of 11 October 2016. Kasparov alleged that he was unlawfully detained at an airport in Moscow in May 2007 and prevented from attending a political protest in the Russian city of Samara. [ECtHR Press Release]
The ECtHR’s decision comes during a time of heightened repression, and retaliation, against Russia’s dissenting voices; many journalists, rights advocates, politicians and whistle-blowers who speak out against Russian leadership face risks of imprisonment, defamation, and death. [NY Times] Kasparov, who has been critical of the government for over 10 years, previously brought a 2013 case before the ECtHR, which ruled that Russia violated his rights when authorities arrested him at a political demonstration in April of 2007 in Moscow. See ECtHR, Kasparov and Others v. Russia, App. no. 21613/07, Judgment of 3 October 2013, para. 7.
Judgment of the European Court of Human Rights
Facts
On May 18, 2007, Kasparov, a Russian national, attempted to travel to Samara to attend an opposition rally, “March of Dissent,” which had been organized to take place during the EU-Russia summit from May 17 to 18, but was prevented from flying. See Kasparov v. Russia, Judgment of 11 October 2016, para. 6. The government and Kasparov, though, maintained different versions of what happened subsequent to Kasparov’s arrival at the airport. See id.
According to Kasparov, upon check-in a police officer confiscated his ticket and passport, and he was then escorted to a police office where he was detained and questioned for several hours, during which time an armed guard prevented him from leaving. See id. at paras. 7-9. Kasparov submitted three corroborating documents to support his claims: a copy of the record of search and confiscation by a police officer, a pro forma statement by that police officer, and a handwritten declaration created and signed by Kasparov and five other activists subjected to similar treatment detailing the above facts. See id. at paras. 10-13.
The government alleged that on May 17, 2016 the Department of Interior’s Sheremetyevo airport branch was on alert for forged tickets, that on May 18, 2007 several tickets showed signs of forgery, and that as a result, those tickets were confiscated and the persons presenting the tickets were prevented from boarding. See id. at para. 14. In this context, the authorities seized Kasparov’s ticket. See id. at para. 15. The government, though, denied confiscating Kasparov’s passport, detaining him for five hours, or preventing him from leaving, and argued that the police were entitled to an explanation concerning the ticket. See id.
Kasparov lodged a complaint with the Moscow Transport Prosecutor’s Office regarding his detention; however, in June 2007 the prosecutor opted not to open criminal proceedings against the officers. See id. at paras 16-17. Kasparov subsequently filed an appeal against this decision, which the Golovinskiy Court of Moscow rejected, as well as a cassation appeal, which the Moscow City Court dismissed in August 2007. See id. at paras. 18-23.
Legal Reasoning
The ECtHR ultimately found a violation of Kasparov’s right to liberty under Article 5 of the European Convention. See id. at para. 56. Before reaching this conclusion, the Court reasoned that since the parties contested both the facts and whether a violation of the right to liberty occurred, in order to determine whether a deprivation of liberty had occurred, Kasparov would need to provide evidence indicating he had been under the exclusive control of authorities. The Court also stated that its assessment would need to consider the entirety of the circumstances in question including the form, duration, effects, and manner of implementation of the detention. See id. at paras. 35-36. The ECtHR reiterated that the lawfulness of a detention does not hinge on whether the person initially agreed to the detention, but rather on the degree of coercion, and whether it was unrealistic to assume the person felt they were able to leave, even where the deprivation is brief. See id. at para. 36.
The ECtHR determined that Kasparov’s claims were more credible than those of the State, given the documents and specific notations provided by Kasparov and the lack of evidence supplied by the government. See id. at paras. 39-42, 46. The ECtHR based its holding on the following four factors: Kasparov did not have any meaningful choice about following the police after he checked in, Kasparov was not able to freely leave the room he was held in given the armed guard in the doorway, it is not decisive whether or not the police characterized the detention as an arrest, and the detention went beyond the time necessary to verify formalities that are typical of airport travel. See id. at para. 46. Furthermore, the ECtHR concluded that no lawful exceptions to Article 5 protections applied, since the State failed both to produce evidence that a forgery of tickets had occurred, and to substantiate a reasonable suspicion that Kasparov committed a forgery. See id. at paras. 48-56.
Additionally, the ECtHR concluded that the government violated Kasparov’s right to peaceful assembly pursuant to Article 11 of the European Convention. See id. at para. 69. ECtHR jurisprudence states that stopping a person from traveling who intends to participate in a meeting is a violation of that person’s freedom of assembly. See id. at para 66. Both parties conceded that Kasparov was traveling to participate in the March of Dissent, and ultimately, the ECtHR held that the taking of travel documents and impermissibly detaining Kasparov interfered with his right to freedom of assembly by preventing him from participating in the rally. See id. at para. 67.
Previous European Court Ruling
Kasparov was the subject of a previous EctHR case, in 2013, regarding his arrest on April 14, 2007 while on his way to an anti-government demonstration in Moscow protesting the upcoming parliamentary elections. See Kasparov and Others v. Russia, Judgment of 3 October 2013, para. 7. Kasparov, and other activists, were charged with an administrative offense for breaching regulations on demonstrations. The judge, who refused to consider eyewitness testimony that refuted the testimony of the police, concluded Kasparov attempted to engage in unauthorized demonstration. See id. at paras. 19-26. Before the ECtHR, Kasparov alleged violations of articles 6, 10, and 11 of the Convention, which protect the rights to a fair trial, freedom of expression, and freedom of assembly and of association, respectively. See id. at paras. 36, 70.
The ECtHR ultimately held that Russia violated all three articles alleged. First, the Court concluded that the right to a fair trial was violated due to the incompatible limitation on Kasparov’s right to defend himself by excluding key eyewitnesses testimony. The State was responsible for violating articles 10 and 11, the Court held, because the arrests and charges brought were not proportionate and necessary to achieving a legitimate interest, which in this case was to prevent public disorder; the marchers were not at risk of penetrating the designated security area. See id. at paras. 63-69, 88-97.
Additional Information
Kasparov, the former highest ranked chess player in the world, has actively opposed Russian president Vladimir Putin, and his regime, since 2005. [Politico; Jurist] Kasparov is the founder and chairman of United Civil Front, a political movement focused on preserving electoral democracy in Russia, as well as the chairman for Human Rights Foundation, which focuses on protecting individual freedoms. [Politico; Jurist] Since Vladimir Putin became president again in 2012, the environment for political opponents in Russia has become progressively more negative, with increases in fines for participating in protests, increases in government control over the media, and increases in retaliation against activists. [PBS] Kasparov, aware of the hostile climate towards political dissidents and the rise of political killings in Russia, carries bottled water and pre-pared meals with him. [NY Times] According to news reports, Kasparov was again arrested in November 2007 in Moscow, and at a protest in support of Pussy Riot in August 2012. [CNN; BBC]
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