May 18, 2022
By Valentina Golunova
24 February marked a turning point in modern history: Russia barbarously attacked Ukraine. Apart from other drastic implications, including the expulsion of Russia from the Council of Europe, the war set off a new wave of political repression within a country. Russian political activists and opposition figures have been persecuted for taking to the streets and openly criticising the regime already for decades. However, the growing unrest regarding Russia’s actions in Ukraine has led the Government to almost fully wipe out opportunities for peaceful assembly.
The case of Manannikov v. Russia deals with a complex problem of political dissent and its reasonable boundaries in a democratic society. Rendered by the European Court of Human Rights on 1 February 2022, a few weeks before the beginning of the war, the judgment exposes the Court’s struggle to balance the right to counter-demonstration with the legitimate goal of protecting public order. But has the Court set the priorities straight? And is the outcome of the case reasonable in light of the social and political realities in Russia? This post discusses the judgment in Manannikov, indicates where the Court’s reasoning has fallen short, and reflects on its broader implications.
The case revolved around a public event held in the run-up to the legislative elections of December 2007 and the presidential election of March 2008. On 27 October 2007, a crowd gathered on the main square of the Siberian city of Novosibirsk to express their support of the acting president Vladimir Putin. However, the applicant, who also attended the gathering, had different intentions. After situating himself in the middle of the crowd, Mr Manannikov held up a banner stating ‘Putin is better than Hitler’ (§8). The police approached the applicant and asked him to remove the banner. However, Mr Manannikov continued to hold it until the banner was seized and torn up by three men who appeared to be undercover police officers. On his way home, the applicant was taken to the police station on administrative charges.
The case against Mr Manannikov was examined in court on the same day. The court established that the display of a provocative banner inconsistent with the objective of the gathering presented ‘a real threat to the public order, health, and lives of the participants’ (§12). By refusing to comply with a lawful police order to remove the banner, Mr Manannikov breached section 6(3)(2) of the Public Events Act. Ultimately, the court found that the applicant violated the established rules for the conduct of public events, which constitutes an offence under Article 20.2 § 2 of the Code of Administrative Offences. Mr Manannikov was fined for 500 Russian roubles (equivalent to 14 euros according to the exchange rate valid at the time). The applicant’s appeal against the decision was rejected: the second instance court agreed with the legal classification of the offence and confirmed that the fine was not disproportionate.
The applicant argued that the conviction of an administrative offence and the fine imposed on him in relation to this conviction constituted a violation of freedom of expression guaranteed under Article 10 of the Convention.
Prior to addressing the case on its merits, the Court ruled out the Government’s objection to its admissibility of Mr Manannikov’s complaint. Even though the financial penalty at stake is relatively small, the Court found that the matter at hand concerns ‘important questions of principle’ – most notably, the right to speak freely on a matter of public interest (§22). Thus, contrary to the Government’s contention, the Court established that the applicant had suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention.
Moving to the substance of the complaint, the Court readily accepted that the conviction and the fine constitute an interference with freedom of expression (§27). While it quickly determined that this interference was prescribed by law and pursued a legitimate aim (§28-30), it undertook a more detailed assessment of whether it was necessary in a democratic society. The Court alluded to its judgment in Fáber v. Hungary, where it emphasised the importance of balancing freedom of assembly with the right to the right to counter-demonstrate (§33). It noted that the Government enjoys a wide margin of appreciation in striking this balance. In the Court’s view, the discretion of national authorities encompasses two different dimensions. First, the Court confirmed that the domestic court was best placed to determine whether the display of a banner constitutes a threat to public order (§32). Second, the Court showed deference to the police authorities which were found to be best placed to evaluate the risk of tension or disturbance at the public event (§37).
When providing its own assessment of the situation, the Court considered three relevant factors. Interestingly, it attributed particular importance to the applicant’s location at the event. Since Mr Manannikov positioned himself in the centre of the crowd, the police would have had difficulty ensuring the peaceful conduct of the event if other demonstrators had reacted violently to the provocative banner he was holding (§36). Further, the Court noted that the order to remove the banner was not unreasonable or excessive (§37). Finally, it found that the police had not removed the applicant from the event, giving Mr Manannikov a fair opportunity to express his opinion at the public event. As the Court concluded that the measure at stake did not go beyond what is necessary in the democratic society, it found no violation of Article 10 of the Convention (§39).
The judgment in Manannikov leaves a bittersweet feeling. Admittedly, the Court was rather meticulous in justifying why the interference did not exceed the boundaries of what is necessary in a democratic society. It also clearly strived to ensure consistency of its reasoning. By distinguishing the situation at hand from several of its previous judgments, the Court expressed its commitment to standing for the right to counter-demonstration but also pointed to its reasonable limits. Additionally, the judgment disproves a popular contention that the Court is biased against authoritarian-leaning states, such as Russia and Turkey.
Nonetheless, the stance taken by the Court is not entirely convincing and could have dangerous consequences for the democratic discourse. It is bewildering that the Government was allowed to enjoy an extremely wide discretion in assessing whether the banner was provocative and offensive to the public. As established by the Court itself, Article 10 of the Convention protects not only benevolent information and ideas but also ‘those that shock, offend or disturb the state or any sector of the population’ (Handyside v. United Kingdom, §49). It appears that the applicant had good reasons to lift the banner with the text that could offend ‘the sensitivity of the majority opinion’ (Stankov v. Bulagaria, §107): even though the public event brought together the supporters of President Putin, it should be possible for dissidents to express their point of view as well. The message placed on the banner was indeed conspicuous, but one can wonder whether it was truly insulting or inappropriate, especially since political speech enjoys the heightened level of protection under the Convention (Castels v. Spain, §43). It is unfortunate that the Court was reluctant to reaffirm its broad interpretation of Article 10 of the Convention.
Even if assumed that the Court did not intend to imply that Mr Manannikov actually overstepped the boundaries of his freedom of expression, it is striking that the Court took the Government’s interference so lightly. The Court clearly failed to consider the relevant context surrounding the exercise of freedom of assembly in Russia. While it readily believed that the police order to remove the banner was justified since some of the attendants looked ‘displeased’ when it was rolled out, a rushed conclusion that the banner could indeed threaten the public order is not persuasive. It is widely known that the Russian authorities often stage pro-Kremlin protests to imitate a far-reaching support of the acting Government. As reported by a local media outlet, most attendants of the demonstration on 27 October 2007 were forced to participate by their employers or education institutions. Furthermore, while the authorities were expecting 50 thousand attendants, not more than 7 thousand people showed up in the end. Given that the public was largely disinterested in the event, it is highly unlikely that the banner would have caused any severe disturbance. Moreover, as deftly mentioned by Judge Seibert-Fohr in her Dissenting Opinion joined by Judge Pavli, the fact that the applicant was allowed to remain at the venue up until the end of the event and was only detained on his way home suggests that the police did not have any reason to intervene (§5). Arguably, the Court should have been more rigorous in assessing the necessity of the measures taken by the Government.
It is also disappointing that the Court applied a restrictive interpretation of the right to counter-demonstration. Contrary to its own conclusion in Fáber, where it established that states have a positive obligation to protect the freedom of assembly of all demonstrating groups present at the venue, its reasoning in Manannikov seems to suggest that individuals can only freely express their views and opinions provided there is a time and a place for it. For some reason, it was more concerned that the applicant’s banner ‘distorted and undermined the message that other participants and the overall demonstration wanted to convey’ (§36) but was reluctant to stand for the applicant’s right to counter-demonstration. The Court supposedly did not consider the fact that, while the Russian Government always aspires to amplify the voices of its supporters, it is much less lenient towards peaceful protests organised by the opposition. Since demonstrations against the leading party of the acting president are consistently banned, attending an event in support of the Government could be the only way to express an alternative viewpoint. Restricting the right to counter-demonstration could therefore give rise to a ‘chilling effect’ on freedom of expression.
Finally, the approach taken by the Court in Manannikov does not take into account the dynamic nature of the democratic discourse. Arguably, spontaneous and provocative political actions play a vital role in stimulating robust public debate. For example, in March 2022, the world was stunned by a brave Russian state TV employee who raised an anti-war poster in the middle of a news programme. Could the Russian Government lawfully sanction a stunt like that? According to the Court’s reasoning, states are allowed to prioritise public order concerns over out-of-ordinary political action. However, one can wonder whether this logic is in line with the spirit of the Convention. Article 10 affords enhanced protection to vulnerable groups who must be able to speak out freely on matters of public interest. The ongoing war in Ukraine once again exposed the importance of uplifting the voices of the opponents of the regime. However, the judgment in Manannikov forsakes the values of ‘pluralism, tolerance and broadmindedness’ (Handyside v. the United Kingdom, §49) and could ultimately endanger the prospects of promoting democratic change in countries like Russia.