‘Peaceful assembly’ and the question of applicability of Article 11

Beril Önder: PhD Candidate, University of Strasbourg (Institut de Recherches Carré de Malberg) and Ghent University (Human Rights Centre)

The case of Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia[1] concerned the conviction of two men for organising “mass disorder” in a political rally at Bolotnaya Square in Moscow on 6 May 2012. The rally was held to protest against the alleged ‘abuses and falsifications’ in the elections to the State Duma and the presidential elections. This political rally has been at the centre of several earlier cases dealt with by the European Court of Human Rights (ECtHR), such as Frumkin v. Russia,   Yaroslav Belousov v. Russia, Barabanov. Russia, Polikhovich v. Russia  and Stepan Zimin v. Russia. While, the previously examined cases had been brought by activists convicted of participating in the mass disorder at Bolotnaya Square, the applicants in the present case had been convicted of organising that mass disorder.

The ECtHR, in its judgment of 19 November 2019, found various violations of the two applicants’ rights under the European Convention on Human Rights (Convention), including Articles 3, 5, 6, 8, 11 and Article 1 of Protocol No. 1. However, the most striking part of the judgement is arguably the Court’s finding that Article 11 was inapplicable as regards one of the applicants, Mr. Razvozzhayev. This blog focuses on Mr Razvozzhayey’s rights under Article 11 of the Convention.

Facts

The first applicant, Mr. Razvozzhayev, was a political activist who was an assistant at the time to a State Duma deputy. The second applicant, Mr Udaltsov was also a political activist, a member of an opposition movement, “Levyy Front”. Mr Udaltsoy was also one of the organisers of  the Bolotnaya Square rally planned for 6 May 2012.  The rally was authorised by the Moscow authorities, and it was to proceed down several streets in Moscow and end with a meeting at an area including the park at Bolotnaya Square and Bolotnaya embankment.

On 6 May 2012, the applicants participated in the march together with thousands of people. After a peaceful march, when the demonstrators approached Bolotnaya Square at about 5 p.m., they found that the park at Bolotnaya Square was excluded from the meeting venue and access to it was barred by a cordon of riot police. The venue was limited to the Bolotnaya embankment.

Leaders of the rally, including the second applicant, held a brief sit-down protest, while some participants tried to break through the cordon around the square. The police eventually declared the meeting closed, with riot police being employed. Various confrontations took place between demonstrators and the police, resulting in numerous arrests. The second applicant and other leaders of the protest were also arrested.

Soon after the rally, an investigation was launched into the criminal offence of organising mass disorder (offences under Article 212 § 1 of the Criminal Code). On 5 October 2012, the NTV television channel showed a film, Anatomy of Protest, Part Two, which featured the applicants and their fellow activist Mr L., discussing with Mr T. the plans for opposition events and financing options involving sponsorship by Mr T. Subsequently, on 16 October 2012, another criminal investigation was opened against the applicants and other persons for conspiracy to organise mass disorder in various Russian regions (riots in question had been allegedly planned for autumn 2012.

On 20 May 2014, State Duma Deputy Mr Ponomarev, testified as a witness during the applicants’ trial. Mr Ponomarev stated, in particular, that the first applicant had worked as his assistant and that on 6 May 2012 he had been acting on his instructions. Mr Ponomarev also stated that he was the person who had suggested, during the sit-in, to the first and second applicants to push the police cordon back to the agreed limits of the meeting venue, and that he had told the first applicant to find strong men for that purpose. In July 2014, both of the applicants were found guilty of organising mass disorder in relation to the event of 6 May 2012 (Article 212 § 1 of the Criminal Code) and conspiracy to organise mass disorder (Article 30 § 1 in conjunction with Article 212 § 1 of the Criminal Code). They were sentenced to an aggregate of four and a half years of imprisonment. As regards the Bolotnaya Square event of 6 May 2012, the domestic court held that the applicants provoked the other protestors to push against the police cordon, causing the crowd to panic, which eventually led to the breaking of the cordon and the ensuing mass disorder.

The ECtHR’s findings under Article 11 of the Convention

Before the ECtHR, the applicants complained of a violation of their right to freedom of expression and the right to freedom of peaceful assembly. They alleged that they had been held liable for the disorder at the site of the assembly at Bolotnaya Square, although in their view it was attributable to the Russian authorities. They also complained that their conviction for organising mass disorder had been unlawful, arbitrary and disproportionate. Both applicants relied on Article 11 of the Convention, and the first applicant also relied on Article 10 of the Convention. The Court examined the applicants’ complaints under Article 11 of the Convention, as the applicants’ allegations concerned only the matters directly relating to the conduct of the assembly of 6 May 2012. The Court underlined that in the present case Article 11 should also be considered in the light of Article 10 of the Convention.

Further, the Court stated that unlike the previously examined cases brought by activists convicted of participating in mass disorder at Bolotnaya Square, the applicants in the present case had been convicted of organising these same acts of mass disorder. Nonetheless, for the establishment of the facts, the Court relied on its findings in those previous Bolotnaya cases, such as Frumkin v. Russia and Yaroslav Belousov. It maintained in particular, that “the sit-in had begun because of the unexpected change of the venue layout, of which the police had not informed the organisers’, that ‘the authorities had made an insufficient effort to communicate with the assembly organisers to resolve the tension caused by the confusion about the venue layout’, and that ‘breaking through the police cordon was not confirmed to have been the organisers’ desired outcome’ (para. 279). However, the Court also accepted that ‘there might have been a number of individuals in the crowd who had contributed to the onset of clashes between the protesters and the police and whose situation could have been contrasted with that of the applicants in the [previous Bolotnaya] cases’ (para. 283).

The Court first ruled on the applicability of Article 11. As regards the first applicant, the Court held that the first applicant was found guilty of leading a number of individuals to break through the police cordon, and the witnesses confirmed that he had had that intention. Given that the breaking of the cordon led to the escalation of violence at a crucial moment and triggered the onset of clashes, the Court considers that the first applicant’s deliberate acts contributing to its occurrence fall outside the notion of ‘peaceful assembly’ protected by Article 11′.

Accordingly, the ECtHR dismissed Mr. Razvozzhayev’s complaint under Article 11 as incompatible ratione materiae with the provisions of the Convention. The Court referred to the statements of, State Duma Deputy Mr Ponomarev, who had testified as a witness during the applicants’ trial and stated that he had suggested during the sit-in that the applicants push the police cordon back to the agreed limits of the meeting venue, and that he had told the first applicant to find strong men for that purpose.

As to the second applicant, the Court considered that ‘the acts imputed to him – that is, taking part in the sit-in and encouraging others to join it, and his calls to the protesters to begin an “indefinite protest action” on the site of the cancelled meeting and to set up an illegal campsite there –  did not demonstrate any violent intentions on his part’. The ECtHR further held that there was nothing showing that he had taken part in any violent acts or encouraged them. It therefore found that Article 11 was applicable to Mr. Udaltsov’s complaint. The Strasbourg Court then proceeded to an examination of the merits of his complaint. It found that the applicant’s prosecution and criminal conviction for organising mass disorder during the assembly at Bolotnaya Square constituted an interference with the exercise of the freedom of assembly. Subsequently, it examined whether the interference was ‘prescribed by law’, pursued a legitimate aim and was ‘necessary in a democratic society’, as required by Article 11 § 2 of the Convention.  The ECtHR found that the second applicant’s criminal conviction was ‘prescribed by law’ and accepted that it pursued the legitimate aims of preventing disorder and crime and protecting the rights and freedoms of others, as argued by the Government. However, considering the severity of the sanction imposed on the second applicant and the failure of the domestic courts to assess the extent to which the authorities had contributed to the deterioration of the assembly’s peaceful character, the Court found that the Mr. Udaltsov’s conviction was disproportionate to the aims pursued. As a result the Court held that there had been a violation of Article 11 of the Convention as regards the second applicant.

Joint Partly Concurring and Partly Dissenting Opinion Of Judges Lemmens, Yudkivska and Keller

Judges Lemmens, Yudkivska and Keller were not convinced that Mr Razvozzhayev displayed conduct that placed his acts outside the scope of protection of Article 11 and voted against declaring his complaint inadmissible. According to them, at the very least, this was a matter to be examined under the merits of the complaint.

The Dissenting Judges acknowledged that the Court had already stated in the previous Bolotnaya cases that there might have been a number of individuals in the crowd who had contributed to the onset of clashes between the protesters and the police. However, they underlined that the context was important, and that the mere fact that someone ‘contributed to the onset of clashes’ did not necessarily exclude that that person had acted in a peaceful way. They further found that Mr Ponomarev’s witness statement, referred to by the majority, did not provide a firm basis for holding that Mr Razvozzhayev’s conduct had not been ‘peaceful’. Firstly, because Mr Ponomarev spoke of ‘pushing the police cordon back’, not of breaking through the cordon. Secondly, it was not clear why Mr Ponomarev instructed his assistant to find strong men to push the police cordon back. It could have been because of the congestion that was becoming more and more severe and the corresponding need to open up the passage to the meeting area. In any event, Mr Ponomarev’s statement could hardly be understood as an argument in support of the view that Mr Razvozzhayev deliberately broke through the cordon in order to start a conflict with the law-enforcement officers.

Comment

In the present case, the Court protected the second applicant’s right to freedom of assembly, in line with its well-established case law. However, the Strasbourg Court’s inadmissibility decision regarding the first applicant’s complaint under Article 11 is problematic.

The Court has previously examined a number of cases where the demonstrators had engaged in acts of violence and found that the demonstrations in questions had been within the scope of Article 11 of the Convention on the basis that the organisers of these assemblies had not expressed violent intentions and that there were no grounds to believe that the assemblies were not meant to be peaceful.  The Court found the applicants in those cases enjoyed the protection of Article 11 and examined whether the measures taken against them were justified under the second paragraph of this provision (Yaroslav Belousov v Russia, para. 169). Some of those cases were previous Bolotnaya Square rally cases before the ECtHR. Moreover,  some other cases also show that the Court interprets the notion of “peaceful assembly” widely (see Gülcü v. Turkey, para. 97; Primov and Others v. Russia, para. 156: Osmani and Others v. “the former Yugoslav Republic of Macedonia”(dec.) ).

However, the Court, in Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia found that Article 11 was not applicable to Mr Razvozzhayev. The Court did so with a very brief reasoning at the admissibility stage (para. 284). In my opinion, there are two problematic issues arising from the Court’s reasoning regarding the question of applicability of Article 11 here. First, as justly picked up by the dissenting Judges Lemmens, Yudkivska and Keller, that the witness statement of Mr Ponomarev that the majority referred to did not provide a firm basis for holding that Mr Razvozzhayev’s conduct had not been ‘peaceful’. Moreover, there is nothing else in the Court’s reasoning showing that the applicant had any ‘violent’ intentions other than ‘pushing the police cordon back’, or that his own conduct during the assembly had not been ‘peaceful’. Furthermore, in the Court’s judgment (including the relevant part of the domestic court’s judgment convicting the applicant), there aren’t any specific details about the first applicant’s individual acts and conduct during the protest.

Second, while assessing the first applicant’s intentions and acts, the Court did not seem to adequately take into account the authorities’ contribution to the deterioration of the assembly’s peaceful character in the first place (compare with Primov v. Russia, para. 156). The Court, in the merits under Article 11 as regards the second applicant, found that ‘the tensions at Bolotnaya Square arose because of the authorities’ unannounced change of the venue layout in order to prevent illegal campsites from being set up in the park at Bolotnaya Square’. From this point, the Court concluded that ‘the tension escalated into clashes because of the law-enforcement officials’ failure to communicate with the assembly organisers to resolve the dispute about the placement of the police cordon’. Under these circumstances, there were no grounds to believe that the second applicant had violent intentions when he first joined the assembly (see Gülcü v. Turkey, para. 97). Additionally, the first applicant’s intentions and further acts during the assembly were not considered in this context. In my view, the Court should have conducted a more detailed analysis of the first applicant’s expressed intentions. If the majority were to have followed such an approach, it is more likely that the first applicant would have also enjoyed the protection of Article 11.

The present case demonstrates that when the State Parties’ authorities contribute to the deterioration of an assembly’s peaceful character, the Court should be more careful when discussing the question of applicability of Article 11. In an assembly, which resulted in disorder as a result the failure of the State authorities, the Court should not so easily label the organisers and the participators as having violent intentions without a detailed contextual assessment. If the Court is to continue this approach, there is an increased chance that more protesters will be excluded from the protection of the right to freedom of peaceful assembly and thus face disproportionate sanctions.

[1] Having regard to the similar subject matter of the applications, the Court found it appropriate to examine them jointly in a single judgment.

5 thoughts on “‘Peaceful assembly’ and the question of applicability of Article 11

  1. Thanks, interesting analysis.

    The first applicant had invoked Article 10 as well as Article 11. Article 10 does not have any requirement of peacefulness built into it. It’s a shame the Court didn’t explain why, with the “lex specialis” of Article 11 being inapplicable, it didn’t go back to analysing the case under the “lex generalis” of Article 10.

    I fully agree that the Court’s approach to the “peacefulness” requirement here is potentially problematic. It’s similar to the tendency to dismiss e.g. hate speech cases by reference to Article 17. It prevents any assessment of the relevance and sufficiency of the reasons put forward by domestic courts, and of the proportionality of the sanctions imposed.

    • It would naturally be a case of Article 11 being “lex specialis”. I completely agree with you that the ECtHR does kind of a lackluster analysis of when to give Article 11 the tag of “Lex specialis” but the general notion is that when the primary right that is being infringed is that of the Right to Freedom of Assembly, the court will take that as the special law. Even in the present case, the primary infringement was that of assembly related rights. The aspect of Expression was merely incidental.

  2. I’ll side with the majority for this. As the dissent acknowledge, Razvozzhayev did express an intention to push at the police cordon. They excuse him on the grounds that push does not equal break. Here is the thing, ultimately he doesn’t get to decide whether the police cordon breaks or doesn’t break. All he can decide to do is find strong men to push at it, and it is clear that he intends to apply enough force the police cordon will be moved by however many meters it’ll take for his protesters to get into the park. It is inconceivable that he was incognizant of the possibility that the cordon would break under such a force, and there is no reason to believe that he is not at least indifferent to that outcome. That gives him at least conditional intent, and to deny it is to argue that stab does not equal kill or maim. At the very least it is nothing to challenge (once again) the national court’s reading on.

    I must also point out that Razvozzhayev came at the end of a long line of judgments during which the ECHR made some questionable calls even for the Bolotnaya affair alone. For example, in Frumkin v Russia, they seemed to have sided very quickly with the protesters’ version of events as to where the boundaries were “supposed to be”. They did not give a whole lot of reasons to dispute the Russian courts’ finding that the access to the park in February was as an exception, not as a normal state. At most the Russian authorities weren’t diligent enough to quickly pounce on a certain map.
    If you accept this version, then the Russian authorities had reason to expect that the protest leaders will understand the May area would not include the park. Further, even if at the beginning of the day the area can include the park, they had apparently been caught with tents in their bags (which they were told not to bring) and that can be a reason for increased preventive measures. It is one thing to say the assembly shouldn’t be dissolved on the slightest provocation (a recent feature of protests in HK), it is another thing to insist everything be exactly the same after you’ve been caught in premeditated cheating (especially when the remaining area was agreed to be plenty big enough for the protesters).
    They also made their usual karate kicks against the Administrative Offence system. Really, if you allow abbreviated proceedings at all, there is no reason to insist the line for criminal grade measures must start at 0 days of imprisonment rather than 15 (and don’t forget the criminal record – big difference). And considering that there was no visible assembly to join at the time, insisting article 11 applies seems inane.

    • I agree that Ponomarev’s and Razvozzhayev’s conduct are potentially reproachable. That could justify a proportionate interference with their rights under Article 11. However, the Court’s conclusion is to the effect that Article 11 doesn’t come into play, nor does Article 10, thus giving the State a free hand to mete out any sanction. This seems like an undesirable outcome, and not one that is strictly dictated by the wording of Article 10 and 11.

    • See the problem with merely accepting the requirement of “intention” is that it is a very on the paper concept. Like the article itself points out, there are cases like that of OSMANI AND OTHERS v. “THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA”, where the court literally held that Article 11 applies despite there being the presence of armed resistance in the assembly. This just shows that the whole aspect of “intention” is subsidiary and what the court actually checks is the nature and severity of violence, which in the present case was not that great in my opinion.

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