by Daniel Simons and Dirk Voorhoof
One-person protests are the only kind of demonstration Russian citizens are permitted to hold without giving prior notice to the authorities. The unanimous judgment in Novikova and others v. Russia stops short of questioning this low threshold, but finds Russia in violation of Article 10 over its excessive zeal in enforcing the notification requirement through arrests and fines.
As in many countries, Russian law requires the organisers of a protest to inform the authorities ahead of time. The required period of notice depends on the type of event: for a “picket” (defined essentially as holding up placards or other visual aids in a public place, without marching or using loudspeakers), the term is three days; for marches and other larger events, it is ten days.
The judgment deals with the consolidated applications of five Russian citizens who complained of interferences with what they submitted had been “solo static demonstrations”, the only form of picket exempted from the notification requirement. It was undisputed between the parties that their protests concerned matters of public interest, such as education, health care and corruption, and that they had not been violent or disruptive to traffic. Nevertheless, the police had rapidly ended the demonstrations and taken the applicants to police stations. The reason for the police intervention differed from case to case. Ms Novikova, Mr Kirpichev and Mr Romakhin were arrested for allegedly protesting with others (though not more than five persons) and holding a public event, and subsequently handed administrative fines ranging from about EUR 29 to EUR 505 for failing to give prior notice. Mr Matsnev was released without charge after two hours, and was later awarded EUR 149 for wrongful arrest, but he considered this remedy inadequate. Mr Savchenko was detained for using foul language in a public place, but saw his case dropped on procedural grounds.
The Court’s reasoning
In its judgment of 26 April 2016 the European Court notes at the outset that it is most appropriate to examine the case as an exercise of freedom of expression, rather than freedom of assembly, given the applicants’ submission that they protested alone. Therefore the Court examines the case under Article 10, but it takes into account, where appropriate, the general principles it has established in the context of Article 11 of the Convention. It then goes into detail on the cases of Novikova, Kirpichev and Romakhin, analysing each of the three forms of interference they complain of (termination of the protest, taking to the police station, administrative proceedings and fines) under each part of its familiar three-part test in application of Article 10 § 2 of the Convention, that is the legality, the legitimate aim and the necessity in a democratic society, including the proportionate character of the interference by the public authorities. The Court notes from the beginning that the main thrust of the applicants’ arguments relates to the proportionality assessment.
In regard to the first part of the test, the Court expresses reservation whether the interruption of the applicants’ protests was “prescribed by law”, but in the absence of submissions by the parties on this point, it accepts that a legal basis might be found in Section 16 of the Russian Public Assemblies Act, which allows the authorities to end a public event if the organiser has wilfully breached applicable regulations. The Court goes on to note that a common theme in the applicants’ cases is disagreement about whether they were protesting alone or with others. Although Russian law was changed in 2012 to clarify the circumstances under which simultaneous “solo” pickets are to be treated as a gathering or a demonstration, these amendments came into effect after Ms Novikova’s protest. The Court considers this an indication – not challenged by any submission of the Russian Government – that the law was not clear enough at the time of her protest. Indeed there was a doubt as to whether the event in question was a group event (in the form of a meeting or a static demonstration), simultaneous solo demonstrations or merely one solo demonstration. Consequently, Ms Novikova’s prosecution was not sufficiently foreseeable.
Next, the Court grapples with the question whether the interferences pursued a legitimate aim. It recalls that the applicants were stopped solely because of a failure to observe the notification requirement, and there was no subsequent review at the national level of whether these decisions pursued a legitimate aim. In this light, the Court is not convinced that the “prevention of disorder” can serve as a justification. Instead, it accepts, again with reservations, that “prevention of crime” might provide a basis to end a protest that is organised in a manner that constitutes a criminal offence, or, in the Russian context, an administrative one. And while “prevention of disorder” was not relevant to the termination of the applicants’ protests and to the taking of the applicants to the police station, the Court accepts that their prosecution for administrative offences did pursue this aim.
Turning to the third part of the test, the Court recounts some of the general principles arising from its jurisprudence on protests, developed in the context of Article 11. In particular, it reiterates that notification requirements may be justified to ensure the smooth conduct of protests, but “their enforcement cannot become an end in itself” and “a situation of unlawfulness … does not necessarily (that is, by itself) justify an interference with a person’s right to freedom of assembly…” (§ 163). Furthermore, the authorities must show a degree of tolerance towards peaceful gatherings. The exact degree of tolerance required depends on the circumstances of the case, including the level of disruption to ordinary life and, for non-notified events, whether they are an urgent reaction to political events.
Applying these principles to the case at hand, the Court finds that, given the small numbers involved in each of the protests (no more than six, according to the Government’s own version) the failure to give prior notification did not prevent the taking of necessary measures in order to ensure the smooth conduct of the event. The Court also recognises that “all the events were intended to be and actually were peaceful. There was no violence and no obstruction of traffic” (§ 155), and that it is “ common ground between the parties that they concerned matters of public interest. For the Court, the applicants’ demonstrations amounted to a form of political expression” (§ 156). Moreover, the applicants were arrested despite agreeing to comply with police orders to disperse. The Court considers that the authorities could have attained their goals by allowing the applicants to complete their protest and perhaps imposing a reasonable fine on the spot or later on. By ending the protests and taking those involved to the police station, the authorities failed to show the requisite degree of tolerance. According to the Court there “were no compelling reasons to take the applicants to police stations in order to achieve any of the legitimate aims” (§ 183). It also states that
(..) the applicable legislation in Russia (..) did not comply with the “quality-of-law” requirement, as it was insufficiently foreseeable in so far as its application entailed prosecution for an administrative offence (..). Such a state of affairs was conducive to creating a “chilling effect” on legitimate recourse to expression in the form of a solo demonstration (§ 189).
Although it has already established a violation of Article 10 at this point, the Court chooses to go in some depths regarding the proportionality of the prosecution of the applicants, and takes the opportunity to reflect critically on the amendments to the legal framework passed in 2012. The ostensible purpose of those changes, the Court notes, was to prevent public assemblies from being disguised as a series of solo protests. To this end, a minimum distance requirement was introduced and courts were empowered to reclassify an event as an “assembly” post facto, bringing the notification requirement into play. But the Court has “doubts” about the distance requirement, because it means that once one person is picketing at a site, all others are prevented from doing the same. Moreover, it considers that the authorities’ aims could normally be achieved through the distance requirement alone, without the need for a reclassification rule on top of it. In addition, the Court is critical of the decision to increase the maximum fine for failing to provide notification of an assembly tenfold. This, the Court warns, is conducive to creating a “chilling effect” (§ 211).
After finding a violation of Article 10 in respect of the first three applicants, the Court turns briefly to Mr Matsnev, finding that the EUR 149 awarded to him by domestic courts was an inadequate redress for the violation of his freedom of expression. With regard to Mr Savchenko, the Court finds that the domestic courts failed properly to assess whether his alleged use of “foul language” justified the interference with his exercise of freedom of expression. Accordingly, there has also been a violation of these applicants’ rights under Article 10.
In the wake of the disappointing judgment in Kudrevičius and Others v. Lithuania – in which the Grand Chamber gave its imprimatur to prior authorisation requirements for assemblies (see also this other blog on Strasbourg Observers) – in this ruling we see the chamber of the Court’s third section rise convincingly to the defence of the right to protest. It follows other recent cases in which the Court found that the Russian authorities had interfered with the right to protest in a way that violated Article 10 and/or Article 11 of the Convention, as e.g. in Taranenko v. Russia, Primov v. Russia, Nemtsov v. Russia and Frumkin v. Russia.
The final outcome of this case is hardly surprising: the measures taken against the applicants were clearly not necessary to safeguard public order, or any other legitimate aim. However, the Court is unusually painstaking in its application of the first and second parts of the three-part test, and then uses the third part to issue a broader indictment of the tough new restrictions on protests introduced when Vladimir Putin returned to the presidency in 2012.
There is much to commend about the ruling, such as the Court’s emphasis on the fact that the enforced ending of the applicants’ protests was a significant interference with their right to express themselves, even before they were taken to the police station. The premature disbanding of a protest can easily escape censure, since the participants may assume they have little to gain from challenging it after the fact. The Court’s finding that Mr Matsnev should have received more than EUR 149 in compensation sends a helpful signal in this respect.
A more debatable aspect is the Court’s apparent reluctance to grapple with the question whether a notification requirement for assemblies with six participants or less serves any legitimate aim. Perhaps the Court wished to avoid setting an arbitrary numerical limit above which a notification regime becomes relevant to the prevention of disorder. However, the Court’s solution, namely to analyse the termination of applicants’ demonstrations as a measure for the “prevention of crime”, presents problems of its own. In his Concurring Opinion, Judge Pastor Villanova argues that an administrative offence should not be treated as a “crime” for the purposes of Articles 10 § 2 or 11 § 2 of the Convention. It is also difficult to see how the enforcement of a legal requirement can become a legitimate aim, if the requirement itself lacks such an aim. An interference is in any event problematic to justify, when it is not proven that an offence has been committed. Indeed the Court itself found that “it has not been proven that the applicants organised an assembly or participated in one without prior notification, or, in other words, that they committed an offence” (§ 140). With several more cases related to protest in Russia pending, the Court may soon have the opportunity to further refine its approach.
Daniel Simons, Legal Officer for Freedom of Assembly, Expression and Information, Open Society Justice Initiative (New York)
Dirk Voorhoof, Human Rights Centre Ghent University (Belgium), Copenhagen University (Denmark), Legal Human Academy and member of the Executive Board of the European Centre for Press and Media Freedom (ECPMF, Germany)