Verzilov and Others v. Russia: a Violent Attack by Russian (Kuban) Cossacks During an Artistic Performance

The case concerns a violent attack on the applicants by Cossacks during an artistic performance by the applicants in Sochi on 19 February 2014.

THE FACTS

5.  The applicants were members of a Russian feminist punk band, Pussy Riot, founded in late 2011. According to the group members, their songs contained “clear and strongly worded political messages critical of the government”. The group carried out a series of impromptu performances of their songs in various public areas in Moscow selected to enhance their message.

8.  On 16 February 2014 the applicants arrived in Sochi to perform their new song “Putin Will Teach You to Love the Motherland”.

9.  At about 4 p.m. on 19 February 2014 at the seaport in the Tsentralnyy district of Sochi, the applicants, wearing brightly coloured balaclavas, started their performance against the background of a large billboard with the sign “Sochi 2014”, in the presence of friends and journalists who were filming and taking pictures of them. The female members of the band were dancing in colourful open-shoulder dresses, while the fourth applicant was playing a guitar and the first applicant was filming them.

10.  The applicants’ account of subsequent events is the following. When the fifth applicant, who was in front of the other women from the band, began singing the song, a group of approximately ten men, including several in Cossack uniform, rapidly approached the band. One of the men in Cossack uniform (identified by the applicants as V.K.) sprayed the face of the fifth applicant with gas. She continued singing and dancing, holding a microphone with one hand and compressing her eyes with the other. Another man in Cossack uniform (identified by the applicants as Yu.S.) attacked the applicants with a whip, hitting the fifth applicant on the leg and the second applicant on the abdomen. Other attackers rushed towards the applicants, grabbing them, ripping their balaclavas off, pushing them and pulling their arms. The third applicant was screaming with pain when a Cossack pulled her arm. She and the fifth applicant were thrown to the ground. The first applicant’s eyes were sprayed with gas twice by a Cossack (identified by the applicant as V.K.). The attackers seized the fourth applicant’s guitar and used it to hit him on the head. He was left with blood on his face. During the whole time of the attack – around two minutes – the applicants kept repeating the refrain of the song: “Putin will teach you to love the Motherland”. Eventually the applicants had to abandon their performance and leave the scene.

The applicants’ complaints and statements

14.  On 19 February 2014 the incident was reported to the police, including as a result of complaints made by the applicants when applying for medical aid at the hospital. The applicants complained that they had been attacked by a group of men in Cossack uniform and in civilian clothes. The applicants described the violence they had suffered, noting that it had not been preceded by any warning.

18.  On 27 February 2014 the applicants’ lawyer submitted an application to the police, arguing that the attackers’ violent actions had to be classified as hooliganism motivated by religious and ideological hatred committed by a group of persons, under Article 213 of the Criminal Code.

Responsibility of States for internationally wrongful acts

56.  The Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission (ILC) in 2001 (Yearbook of the International Law Commission, 2001, vol. II, Part Two), and their commentary, codified principles developed in modern international law in respect of the State’s responsibility for internationally wrongful acts.

The relevant provisions of the Articles are as follows:

Article 5 – Conduct of persons or entities exercising elements of governmental authority

“The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.”

Article 7 – Excess of authority or contravention of instructions

“The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.”

The Court’s assessment

(a)  The severity threshold

71.  Ill-treatment that attains a minimum level of severity within the meaning of Article 3 of the Convention usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (Bouyid v. Belgium [GC], no. 23380/09, § 8).

Any conduct by law-enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention. That applies in particular to their use of physical force against an individual where it is not made strictly necessary by his or her conduct, whatever the impact on the person in question (Bouyid v. Belgium [GC], § 101).

Whether or not physical injuries of a certain gravity were sustained is not decisive for the assessment of the severity threshold (Women’s Initiatives Supporting Group and Others v. Georgia, nos. 73204/13 and 74959/13, § 60, 16 December 2021; Gremina v. Russia, no. 17054/08, §§ 21 and 89‑91, 26 May 2020, and Kreyndlin and Others v. Russia, no. 33470/18, §§ 53-54, 31 January 2023).

72.  Allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (, Vladimir Romanov v. Russia, no. 41461/02, § 58, 24 July 2008).

73.  The Court observes that the applicants’ allegations of the attack perpetrated against them by Cossacks were supported by medical records of the injuries sustained by the first, second, fourth and fifth applicants, witness statements and video recordings, and have not been disputed by the Government. In particular, it was not disputed between the parties that the attack had not been preceded by any warning, that it had started immediately after the applicants had commenced their performance and had ended about two minutes later as soon as they had abandoned it, and that the applicants had not acted in any manner which could have warranted the use of force against them. The attack included such violent acts as being grabbed, pushed and pulled by the arms and having their balaclavas ripped off, being subjected to the use of pepper spray (the first and fifth applicants), being hit with a whip (the second and fifth applicants), being thrown to the ground (the third and fifth applicant) and receiving a blow to the head (the fourth applicant).

74.  The Court finds that the attack has been established “beyond reasonable doubt”, and that the situation in which the applicants found themselves during the attack was not compatible with respect for their human dignity and reached the threshold of severity for Article 3 of the Convention to apply.

(b)  Procedural obligation

75.  The general principles as regards the State’s procedural obligations when confronted with cases of violent incidents have been summarised in Bouyid, §§ 114-23 with further references; Identoba and Others v. Georgia, no. 73235/12, §§ 66-67, 12 May 2015; Sabalić v. Croatia, no. 50231/13, §§ 93-98, 14 January 2021. Such procedural obligations are similar in cases where the treatment contrary to the Convention has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals (Sabalić, § 96).

76.  The Court notes the Government’s submissions that the Cossacks had not been regarded by the domestic inquiry as State agents, and therefore could not be prosecuted as such, because it had not been proven that they had been on duty maintaining public order at the time of the incident. The Court observes, however, that one of the four Cossacks of the Kuban Cossack Host Association identified by the police inquiry as the participants in the incident had openly acknowledged being on duty and in Cossack uniform at the relevant time in the Tsentralnyy District of Sochi, where the incident had taken place. Despite his acknowledgment and the post he occupied as commander of the Cossack guard in the Tsentralnyy District of Sochi, no reasons were given by the authorities for not treating him as a State agent.

77.  It is especially striking that no serious efforts to establish and record the identities and whereabouts of the alleged attackers were made by the police officers who arrived at the scene of the incident. The identity of those same police officers or their questioning was not part of the establishment of the facts of the incident either. This was an important omission, given that the Cossacks performed their duties in maintaining public order jointly with the police, who were responsible for their training and supervision. Furthermore, the fact that the inquiry was conducted by a local unit of the police raises a question about its compliance with the requirement of independence, given the Cossacks’ connection with the police.

78. The Court further reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask possible discriminatory motives and to establish whether or not intolerance, for example of a racial, religious, gender-related or political nature, may have played a role in the events. Treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights (Identoba and Others, § 67; Virabyan v. Armenia, no. 40094/05, § 218, 2 October 2012).

Political pluralism, which implies the peaceful coexistence of a diversity of political opinions and movements, is of particular importance for the survival of a democratic society based on the rule of law, and acts of violence committed by agents of the State which are intended to suppress, eliminate or discourage political dissent or to punish those who hold or voice a dissenting political opinion pose a special threat to the ideals and values of such society (Virabyan, § 200). The authorities’ duty to investigate the existence of a possible link between political attitudes and an act of violence is an aspect of their procedural obligations arising under Article 3 of the Convention (Virabyan, § 220).

79.  The Court notes that, while some of the statements of the four identified Cossacks were clearly contradictory (N.K. denying the use of force and whips and V.K. acknowledging having seen a whip being used, or I.G. stating that none of the participants in the incident had been in Cossack uniform and statements by N.K. and V.K. to the contrary), all four identically explained that the motivation for the Cossacks’ actions had been the applicants’ performance itself, which the Cossacks found to be provocative, outrageous, indecent and amounting to unlawful actions which had to be suppressed. The lyrics of the song, in particular the refrain which the applicants had kept repeating during the entire attack, were considered by the Cossacks to be offensive and denigrating towards the Russian President, insulting to society or expressing negative attitudes towards society. Yu.S., self-described as a deep Orthodox believer, had recognised the female applicants as members of Pussy Riot who had performed in the Christ the Saviour Cathedral in Moscow and “desecrated the feelings of the Orthodox believers” and, unable to restrain himself, had sworn at them. The Court concludes that the clear indications of political and religious motives for the violence against the applicants were left without any assessment and reaction by the authorities, in contravention of their obligation under Article 3 of the Convention.

80.  The Court has found previously, in the context of Russian cases concerning police ill-treatment, that the mere fact of the investigating authority’s refusal to open a criminal investigation into credible allegations of ill-treatment was indicative of the State’s failure to comply with its obligation under Article 3 of the Convention to carry out an effective investigation. The framework of the pre‑investigation inquiry alone (if it was not followed by a criminal investigation) did not allow the identity of the alleged perpetrators of ill‑treatment to be established and was not capable of leading to their punishment. The authorities had to initiate an investigation proper, in which the whole range of investigative measures could be carried out, including the questioning of witnesses, confrontations and identification parades (Lyapin v. Russia, no. 46956/09, §§ 129 and 132‑36, 24 July 2014; Samesov v. Russia, no. 57269/14, §§ 51-52 and 54, 20 November 2018).

81.  The State’s reaction to the credible allegations of the applicants’ ill‑treatment at the hands of Cossacks was limited to the pre-investigation inquiry, as a result of which they refused to institute criminal proceedings and to carry out an investigation. In total they took ten such decisions, nine of which were set aside as unlawful and unfounded. Their most recent decision (taken more than a year after the incident), which was not set aside, was, however, similar to the previous decisions, containing the same shortcomings. The applicants’ court appeal was to no avail.

82.  In view of the foregoing, the Court concludes that the authorities failed to carry out an effective investigation capable of leading to the identification and punishment of those responsible.

(c)  Substantive obligations

83.  It remains to be determined whether the applicants are justified in claiming the State’s responsibility for their treatment by Cossacks under Article 3 of the Convention. The Court notes that the Government denied this, arguing that the Cossacks had acted in their private capacity and not in the performance of their duties to maintain public order.

84.  It is a well-established principle of the Court’s case-law that a Contracting State will be responsible under the Convention for violations of human rights caused by acts carried out by its agents in the performance of their duties (V.K. v. Russia, no. 68059/13, § 174, 7 March 2017; Chernega and Others v. Ukraine, no. 74768/10, § 125, 18 June 2019).

 In order to establish whether a State can be held responsible for the unlawful actions of its agents outside their official duties, the Court needs to assess the totality of the circumstances and consider the nature and circumstances of the conduct in question (Sašo Gorgiev v. the former Yugoslav Republic of Macedonia, no. 49382/06, § 48).

Whether a person is an agent of the State for the purposes of the Convention is defined on the basis of a multitude of factors, none of which is determinative on its own. The key criteria used to determine whether the State is responsible for the acts of a person, whether formally a public official or not, are as follows: manner of appointment, supervision and accountability, objectives, powers and functions of the person in question (V.K. v. Russia, § 175).

85.  In the case of Đurđević the Court considered that an incident involving off‑duty police officers concerned allegations of police violence because there had been no other reason for them to intervene in the situation in question than in their capacity as police officers, with one of them identifying himself as such (Đurđević v. Croatia, no. 52442/09, § 75; see also Mižigárová v. Slovakia, no. 74832/01, § 87, 14 December 2010, in which the fact that a police officer was off duty, during questioning at a police station which ended with a detainee being shot with the officer’s service pistol, did not in itself rule out the State’s responsibility).

In Sašo Gorgiev the Court found that a harmful act committed by a police reservist in a bar (a shot fired from a service gun endangering the applicant’s life) outside his official duties, at a time when he was supposed to be on duty and was in uniform, was imputable to the respondent State (Sašo Gorgiev, § 52). The Court took into account the Government’s failure to inform it of whether any assessment of the police reservist’s fitness for being recruited and equipped with a weapon had been made by the national authorities (Sašo Gorgiev, §§ 47-54).

In cases involving civilian volunteers in a quasi-police function, factors such as whether the persons in question made use of their official position while committing the harmful acts and whether there was connivance or acquiescence in those acts by the authorities have been found relevant for dismissing arguments by the Government that the acts had been committed by those persons in their private capacity and for holding the State responsible (see, in the context of Article 2, Avşar v. Turkey, no. 25657/94, §§ 409-416; Acar and Others v. Turkey, nos. 36088/97 and 38417/97, §§ 83‑86, 24 May 2005; Seyfettin Acar and Others v. Turkey, no. 30742/03, § 35, 6 October 2009). Whether a State agent was on or off duty when committing harmful acts has not therefore in itself been decisive for the issue of the State’s responsibility.

86.  It follows from the relevant domestic law that the Cossacks who assisted the police in preserving public order were employed by their primary Cossack associations and performed their duties on the basis of agreements concluded by their associations with the local police and local authorities. The Cossacks’ service was performed under the close control of the State, which: (i) entered the Cossack associations in a special register (a condition necessary for Cossacks belonging to those associations to perform State service); (ii) approved the charter of the All‑Russian Cossack Association (an umbrella organisation of all territorial Cossack associations); (iii) established the procedure for Cossacks to enter State service; (iv) gave final approvals for the Cossack associations’ decisions granting individual applications to enter State service; (v) determined the Cossack ranks, uniform and insignia; (vi) approved the election of the atamans of Cossack Host Associations (of which all smaller territorial associations were part); (vii) conferred the highest rank of Cossack general; (viii) determined the order in which other main ranks were conferred; and (ix) took decisions to conclude agreements with Cossack associations in order to involve their members in assisting State authorities in carrying out their tasks and functions, and carried out supervision of compliance with the terms of such agreements. The powers listed under (ii‑iii) and (v-viii) above belonged to the Russian President. The Cossacks’ service was financed from the State or municipal budgets.

87.  Under the regulations pertaining to the Cossack State service in the Krasnodar Region, members of the Cossack guard assisting the police in maintaining public order had to comply with certain requirements, such as not having a criminal record or any mental disorders or drug or alcohol addiction, and the police were expected to carry out checks of the candidates and approve the lists of Cossack guards. Under the agreement concluded between the municipality of Sochi, the Sochi police department and the Tsentralnyy District Cossack Association of Sochi (where the attack took place), the Sochi police were required to involve members of the Cossack guard in the protection of public order jointly with police officers, providing the necessary conditions and permanent assistance, organising their training and being responsible for their overall management. The administration of Sochi had to carry out supervision of the interaction between the Sochi police and the Cossack Association in organising the Cossack guards’ work.

88.  The Court further notes that Cossacks from the Kuban Cossack Host Association, in their role of maintaining public order, had the duties of executing tasks assigned by police officers, “protect[ing] citizens’ honour and dignity from culpable infringements or other anti-social manifestations” and ensuring the suppression and prevention of offences. Special funds were allocated from the Krasnodar regional budget for their permanent participation during the Olympic Winter Games in Sochi in February 2014. Allowances in the event of death, disability and injuries caused to Cossacks in the course of their participation in maintaining public order in the territory of the Krasnodar Region were paid from the regional budget.

89.  As the Court has noted above, several members of the Kuban Cossack Host Association participated in the attack to stop the applicants from performing and recording their song, and at least two were wearing Cossack uniform and were therefore seen as officially exercising their duties in maintaining public order. There were clear indications that the Cossacks participating in the attack regarded the applicants’ performance as an anti‑social unlawful activity which had to be suppressed. It cannot be ruled out that the State’s prosecution of the Pussy Riot members two years earlier conditioned, at least in part, the Cossacks’ attitude.

90.  All in all, there are sufficient elements to conclude that there was a direct connection between the Cossacks’ actions and their duties in maintaining public order, which the State had invited them to perform under its close control and supervision. This gives rise to serious reasons to consider, regardless of whether or not the Cossacks were formally on duty at the time of the attack, that the State should be held responsible for their attack on the applicants.

91.  Those reasons are further enhanced by the striking passivity of the police officers who arrived at the scene of the incident. While the evidence before the Court does not allow it to conclude that the police themselves witnessed the violence committed against the applicants, that evidence does indicate that when the police arrived the attack was still continuing against other people, hostile and insulting remarks against the applicants were still being shouted, complaints were being made about the violence committed by specific attackers still present at the scene, in particular about the use of a whip against women, and at least one Cossack visibly holding a whip was present. Nevertheless, apart from an invitation to everyone to disperse, the police officers did nothing to make it clear that the use of force and abusive language was unacceptable and had to stop, and to arrest the attackers or at the very least to establish their identity. Such behaviour indicates connivance or acquiescence in the Cossacks’ attack on the part of the authorities.

92.  The Court further reiterates that the authorities’ positive obligations under Article 3 of the Convention comprise an obligation to put in place a legislative and regulatory framework to shield individuals adequately from treatment incompatible with Article 3 (X and Others v. Bulgaria [GC], no. 22457/16, § 178, 2 February 2021$ Abdu v. Bulgaria, no. 26827/08, § 41, 11 March 2014). States are expected to set high professional standards within their law-enforcement systems and ensure that the persons serving in those systems meet the requisite criteria (Sašo Gorgiev, § 51).

93.  The Court notes that the use of force by Cossacks in carrying out State service for maintaining public order was not regulated by the domestic law at the time of the incident (see the relevant legal provisions, which entered into force after the incident in question, cited in paragraph 49 above). In particular, the domestic law neither expressly prohibited nor regulated the Cossacks’ use of a whip, a Cossack attribute, or pepper spray.

94.  The duties of the Cossacks of the Kuban Cossack Host Association were defined very broadly. However, there is no indication of whether any assessment had been made for the Cossacks’ fitness for being involved in maintaining public order, and whether they received any training and supervision by the national authorities, as was envisaged in the regulations in force at the time.

95.  The Cossacks’ unjustified use of force in the present case caused the applicants physical pain and injuries, humiliating them, showing a lack of respect for and diminishing their human dignity, and arousing feelings of fear, anguish and inferiority on their part. It amounted to degrading treatment, which must be imputable to the respondent State.

(d)  Conclusion

96.  The applicants’ criminal complaint was an appropriate remedy by which to establish liability for the Cossacks’ actions resulting in a breach of the applicants’ rights under Article 3 of the Convention, and the State was not bound by the applicants’ lawyer’s views on the applicable provisions of the Criminal Code. The fact that the applicants did not pursue private prosecution proceedings is not decisive, since the purpose of their application before the Court was to establish the State’s responsibility as such (Sašo Gorgiev, § 53). The Government’s non-exhaustion objection is therefore dismissed.

97.  There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Holds that there has been a violation of both the substantive and procedural limbs of Article 3 of the Convention;

…….

Verzilov and Others v. Russia, application № 25276/15, judgment 29.08.2023, final 29.11.2023

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