Protest as you like it: time, place & manner restrictions under scrutiny in Lashmankin v. Russia

Guest post by Daniel Simons, Legal Officer for Freedom of Assembly, Expression and Information, Open Society Justice Initiative (New York)

The unanimous Chamber judgment in Lashmankin and Others v. Russia, rendered on February 7^th, is an important new star in the Article 11 firmament. It clarifies the law peaceful assemblies in a number of respects, in particular the degree to which authorities may impose time, place and manner restrictions on individual protests, or place blanket bans on demonstrations in specific locations.

Facts

The judgment deals with no fewer than 15 separate applications originating in different parts of Russia. As a result, the underlying facts are not easy to summarise; the common thread, however, is that all of the applicants faced bureaucratic obstacles when they tried to organise peaceful assemblies.

Some of the applicants encountered difficulties familiar from earlier case-law. Those who tried to challenge the authorities in court were unable to obtain an enforceable ruling before the date of the planned assembly (Alekseyev v. Russia); those who went ahead with their demonstrations without permission were met with a policy of “zero tolerance towards unlawful assemblies, even if they are peaceful” (§ 461; see also Novikova and Others v. Russia, discussed in our earlier posting, and the recent ruling in Navalnyy v. Russia). Others faced extensive security measures that seemed calculated to neutralise their protest, rather than any terrorist threat (Makhmudov v. Russia). The discussion below will focus on the novel aspects of the case.

Time, place and manner restrictions

Under the Russian Public Events Act, it is forbidden to proceed with a public event if the authorities have made a “well-reasoned proposal” to change its time or location. Many of the applicants had received such proposals, often telling them to hold their protests in a suburb or industrial estate instead of the central location of their choice. The applicants complained that the Act gave the executive authorities excessive discretion, and that there was no effective judicial control on their proposals.

Several international mechanisms – including the UN Human Rights Committee,[1] the UN Special Rapporteur on Freedom of Peaceful Assembly[2] and the OSCE/ODIHR Panel of Experts on the Freedom of Assembly[3]  – have stated that freedom of assembly entails a right to protest “within sight and sound” of the target audience. Lashmankin is the first case in which the European Court cites this principle too (§ 426):

[T]he practice whereby the authorities allow an assembly to take place, but only at a location which is not within sight and sound of its target audience and where its impact will be muted, is incompatible with the requirements of Article 11 of the Convention.

A right to demonstrate in a place where that is effective is not necessarily synonymous with a right to demonstrate in the place of one’s choice. The Court has previously held (in Sáska v. Hungary) that organisers are in fact entitled “to choose the time, place and modalities of the assembly”. In Lashmankin, it qualifies this to an extent: “in the sphere of restrictions on the location, time or manner of conduct of an assembly the Contracting States must be allowed a wider margin of appreciation” (§ 417). The Court explains that it considers itself ill-equipped to challenge the judgment of the national authorities about the suitability of particular locations for public assemblies. To prevent abuse of the margin of appreciation, however, national law must offer sufficient procedural safeguards to the individual.

Ultimately, the Court concludes that those safeguards are lacking in Russia. A Constitutional Court ruling holding that authorities must give “weighty reasons” for a proposal to modify a public event has not seemed to curb the wide powers of the executive in practice. In the applicants’ cases, the authorities cited a range of anticipated problems, such as a clash with another planned event, disruption to traffic or ordinary life, security risks and possible hostile reactions from bystanders. These reasons were relevant, but not sufficient: the authorities should have considered the feasibility of measures to accommodate the organisers’ interest in assembling within sight and sound of their target audience, such as diverting traffic or exercising policing powers. Domestic courts reviewing these decisions looked only at their lawfulness, and failed to assess their “necessity” and “proportionality”. The resulting risk of arbitrariness was amply illustrated by cases in which opposition groups, human rights defenders and gay rights activist were required to go to the outskirts of town, while pro-government and anti-gay events were allowed to proceed in central locations.

The Court therefore concludes that the legal provisions on which the authorities relied did not meet the Convention’s “quality of law” requirement and that the interferences complained of were not “prescribed by law”.

Prohibition of holding public events at certain public buildings and infrastructural works

One set of applicants also complained about a ban on public events in the vicinity of court buildings, detention facilities, presidential residences, dangerous production facilities, railways and pipelines. They had been told to change the route of their planned Gay Pride march, as it happened to pass near the building of the Constitutional Court.

The European Court had not previously pronounced itself on the question whether the surroundings of specific public buildings and infrastructure may be declared off-limits for protests. The UN Special Rapporteur and the OSCE/ODIHR Panel have argued that such blanket bans are undesirable, as they do not allow for consideration of the specific circumstances of each case.

The Court acknowledges these views, and adds that its own survey reveals that such restrictions are found in only a minority of European countries. Nevertheless, it is not willing to rule out the possibility of a blanket ban in principle. It refers to Animal Defenders International v. the United Kingdom, in which the Grand Chamber held that general measures can sometimes be justified even if they result in individual hard cases. It also cites Christians Against Fascism and Racism v. United Kingdom, a 1980 decision in which the European Commission upheld a two-month ban on public processions in London, imposed in the wake of a series of riots and disturbances that had placed major demands on the police.

In this instance, the Court does find that the Russian ban is disproportionate, because it is “not specifically circumscribed to address a precise risk to public safety or a precise risk of disorder with the minimum impairment of the right of assembly” (§ 437). In contrast to the British ban on political advertising at issue in Animal Defenders International, there is no evidence that the Russian authorities engaged in a careful review of the feasibility of less restrictive measures to achieve their aim, such as a case-by-case examination of assemblies near certain buildings and installations. And in contrast to the facts in Christians Against Fascism and Racism, the Russian ban is unlimited in time and applies across the country to all types of public events.

Specifically in relation to court buildings, the ban does not just protect the judicial process; it prohibits all assemblies near courts, irrespective of any intention to obstruct or impede the administration of justice. The Court therefore concludes that the reasons adduced to justify the general ban on holding public events at certain locations are insufficient, and the ban is not necessary in a democratic society.

Bulk consolidation

This judgment expands on the approach seen in Novikova and Others v. Russia, with the Court selecting a range of applications on a common theme and deciding them together. Apart from enabling it to check several applications off its list in one go, this proves a useful device for the Court to overcome its ordinary reluctance to draw general conclusions about domestic laws and practices. The finding that Russia’s Public Events Act leaves executive authorities too much room in practice to discriminate against opposition and gay rights activists, for example, would have been difficult to base on just one or two examples.

With more than 80 freedom of assembly cases currently pending against Russia, there is ample scope for further en bloc rulings in years to come.

[1] See, for example, Denis Turchenyak et al. v. Belarus, UNHRC, Views of 10 September 2013, UN Doc. CCPR/C/108/D/1948/2010, para. 7.4; Pavel Kozlov et al. v. Belarus, UNHRC, Views of 7 May 2015, UN Doc. CCPR/C/113/D/1949/2010, para. 7.4; and Leonid Sudalenko v. Belarus, UNHRC, Views of 28 December 2015, UN Doc. CCPR/C/115/D/2016/2010, para. 8.4.

[2] See, for example, UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 60.

[3] OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 3.5 and Explanatory Notes, para. 45