CASE OF ZAKHARKIN v. RUSSIA
(Application no. 40377/10)
18 July 2017
This judgment is final but it may be subject to editorial revision.
In the case of Zakharkin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 27 June 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 40377/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Vladimirovich Zakharkin (“the applicant”), on 19 June 2010.
2. The applicant was represented by Mr A. Burkov, a lawyer practising in Yekaterinburg. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. On 24 March 2014 the applicant’s complaints under Articles 5, 6, 10 and 11 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1961 and lives in Surgut, Khanty-Mansiyskiy Region, Russia.
5. The applicant was the leader of a trade union in a private company. His co-workers expressed a wish to hold a public assembly on Constitution Day on 12 December 2009 and the applicant, in his capacity as trade union leader, decided to help them. According to him, such help was “an indirect expression of his own opinion”. The applicant distributed banners and explained that it would be more practicable to stage solo demonstrations. To avoid prosecution for holding a public assembly without notifying the authorities in advance, the applicant suggested that his co-workers position themselves at some distance from each other, for instance on different streets. At the time, there was no federal or regional statutory requirement concerning the minimum distance between simultaneous solo demonstrations (see “Relevant domestic law”).
6. The applicant was then arrested and taken to the police station, where he was held for three hours.
7. On 18 December 2009 a justice of the peace found him guilty under Article 20.2 § 1 of the Code of Administrative Offences (“the CAO”) and fined him 1,500 Russian roubles (RUB) (35 euros at the time). The court considered that the applicant and his co-workers had met in one place; the applicant had given instructions to the others and had distributed banners; he had taken them to the place of the demonstration. In the court’s view, the above circumstances disclosed the presence of a group event in the form of a static demonstration (a “picket”), and confirmed the applicant’s role as its organiser. Thus, it was incumbent on the applicant to lodge a prior notification about this event to the competent authority as required by section 7 of the Public Events Act (“the PEA”).
8. The applicant appealed noting that the PEA defined a “picket” as a form of public expression of opinion where one or more citizens with placards, banners and other means of visual expression stationed themselves near the target object of the “picket”. However, there had been a separate “target object” for each solo demonstrator; the demonstrators had been positioned at a considerable distance from each other (for instance, thirty metres for two of them); thus, he could not be lawfully considered as an organiser of a group event.
9. On 22 January 2010 the Surgut Town Court upheld the judgment.
II. RELEVANT DOMESTIC LAW
10. For a summary of domestic law and practice concerning regulations relating to public events, see Novikova and Others v. Russia, nos. 25501/07, 57569/11, 80153/12, 5790/13 and 35015/13, §§ 47-85, 26 April 2016.
I. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION
11. The applicant complained that he had been hindered from organising solo demonstrations by trade union members and had been deprived of his liberty and fined for a violation of the prior notification requirement under the PEA. He referred to Articles 10 and 11 of the Convention, which in the relevant parts read as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ...”
12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
13. The applicant submitted that he had organised solo demonstrations by his co-workers rather than a group event. In doing so, he had indirectly expressed his own point of view on the topic of solo demonstrations, which had been protected by Article 10 § 1 of the Convention.
14. The Government accepted that the circumstances of the case disclosed an “interference” under both Articles 10 and 11 of the Convention. Their remaining observations correspond in substance to those presented by them in Novikova and Others, cited above, §§ 95-101.
15. The Court has no reason to doubt that the applicant shared the views that his co-workers conveyed or had intended to convey by way of their expressive conduct in holding solo demonstrations. However, the Court notes that in the context of the present case the main thrust of the applicant’s primary grievances concerns and arose from the allegedly arbitrary application of the domestic legislation relating to group events and the liability of organisers of such events for breaches of the PEA, namely its requirement of prior notification. The Court thus finds it appropriate to examine this case under Article 11 of the Convention, taking into account the general principles it has established in the context of Article 10 (compare Novikova and Others, cited above, §§ 91 and 162).
16. It is common ground between the parties that the “interference” in the present case consisted in the applicant being taken to the police station and held there for some time, and his prosecution for an administrative offence. The impugned measures entail a violation of Article 11 of the Convention unless they are prescribed by law, sought to pursue at least one of the legitimate aims mentioned in Article 11 § 2 and were necessary in a democratic society.
17. As regards the applicant’s prosecution under Article 20.2 of the CAO for a violation of section 7 of the PEA, the Court reiterates the following findings made in Novikova and Others:
(γ) Prosecution for an administrative offence
127. The Court observes that before 2012 section 7 of the Public Assemblies Act clearly stated that the requirement of prior notification did not apply to solo static demonstrations. The Act contained no specific rules relating to that type of public event. In June 2012 subsection 1.1 was added, introducing a requirement that a certain distance be observed between unrelated solo demonstrators. Although it left the specific distances to be enacted by the regions, it stipulated that they were not to exceed fifty metres. It also empowered the courts to decide whether a public event was an assembly or a solo static demonstration.
128. As can be inferred from the relevant constitutional ruling, at the time there was a perceived need at the domestic level to deal with the issue of group events being disguised as solo demonstrations and to prevent organisers of such group events from evading their duty to notify the relevant public authority ...
129. Thus, the Court considers that the legislative changes at the federal and regional levels in 2012 may be taken as an indication of a possible lacunae or insufficient regulation relating to difficulties of differentiation between simultaneous solo demonstrations and a public event by two or more people requiring notification ...
131. In view of the above, the Court accepts the submission that before the legislative changes and the Constitutional Court’s interpretative findings ... the legislation in force was not sufficiently foreseeable as to what conduct or omission could be classified as an offence on account of a breach of the notification requirement under the Public Assemblies Act, where 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 ...
(iv) Whether the interference was “necessary in a democratic society”
- Proportionality: prosecution for an administrative offence
190. As regards the applicable regulatory framework after the adoption of the 2012 amendments and the authoritative interpretation given to the new rules by the Russian Constitutional Court, the Court would make the following four general observations.
191. Firstly, the rationale for the distance requirement is to avoid public assemblies being disguised as solo demonstrations and to prevent an assembly organiser from evading his duty to notify the relevant authority. However, the primary consideration is the same as for the notification requirement: if an organiser evades his or her duty to notify, the public authorities are impeded in taking timely and adequate measures to ensure the requisite order for running a given civic initiative and to secure public safety and protection of the rights of the event participants and other people ...
192. The Court has doubts about the applicability of the distance requirement. For instance, a “picket” is usually staged in the immediate vicinity of the object being picketed. Such a form of protest is understandable, but becomes impracticable if a second demonstrator or further solo demonstrators have to stage their “picket” at a considerable distance from the picketed building, for instance, because the first unrelated demonstrator happened to be already in place there.
193. ... the Court will focus on section 7(1.1) of the Public Assemblies Act, which empowers a court to classify an event as an “assembly” post facto. This allows the relevant authority to insist on the observance of the prior notification requirement and to punish its non-observance. In this connection, the Court has taken note of the Constitutional Court’s position that the “reclassification rule” could be enforced even where the statutory distance between demonstrators has been observed.
194. The Court reiterates that in order to determine the proportionality of a general measure, it must primarily assess the legislative choices underlying it. The quality of parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation ... It is also relevant to take into account the risk of abuse if a general measure were to be relaxed, that being a risk which is primarily for the State to assess. The more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact in the particular case ...
195. As can be inferred from the relevant constitutional ruling, at the time there was a perceived need at the domestic level to deal with the issue of avoiding the situation of public assemblies being disguised as solo demonstrations and to prevent assembly organisers from evading their duty to notify the public authority ...
196. While reiterating the State’s wide margin of appreciation when it comes to deciding whether or not to institute proceedings against someone thought to have committed an offence, the Court considers that the legislative choice to make conduct or omission a criminal or other assimilated offence should not run counter to the very essence of a fundamental Convention right or freedom ...
197. The Constitutional Court makes it clear that the rationale for imposing a notification requirement rule is to provide the authorities with an opportunity to comply with their constitutional obligation to respect and protect individual rights and freedoms, and to take the necessary measures aimed at ensuring that participants in an event and other people are safe ... In this Court’s view, prosecution for failure to notify a public event which was subject to the “reclassification rule” should correspond to the need to achieve the above-mentioned aims.
198. In the Court’s view, the intended primary purposes specified in paragraphs 191 and 197 above would, normally, be fully attainable through the reasonable application of the distance requirement, without any “pressing social need” for the “reclassification rule” under section 7(1.1) of the Public Assemblies Act and for bringing into play the notification requirement, thus impinging upon the freedom of expression exercised by solo demonstrators.
199. Therefore, the Court cannot see what legitimate aim, in terms of Article 10 of the Convention, the authorities genuinely sought to achieve. It fails to discern sufficient reasons constituting a “pressing social need” for convicting for non-observance of the notification requirement, where they were merely standing in a peaceful and non-disruptive manner at a distance of some fifty metres from each other. Indeed, no compelling consideration relating to public safety, prevention of disorder or protection of the rights of others was at stake. The only relevant consideration was the need to punish unlawful conduct. This is not a sufficient consideration in this context, in terms of Article 10 of the Convention, in the absence of any aggravating elements.
200. The above findings can be demonstrated by the circumstances that obtained in Mr Romakhin’s case. The Court notes that the specific distance to be observed between solo demonstrators was not set at regional level until December 2012, that is after Mr Romakhin’s demonstration. At the relevant time, the federal legislation provided only guidance, stating that the distance to be specified at regional level could not be more than fifty metres. Leaving aside this element of uncertainty and insufficient foreseeability, the Court notes that the applicant’s conviction was rather based on the finding that the common design of the event was that of a public assembly rather than two unrelated simultaneous solo ...
201. As already mentioned, the prior notification rule for a public assembly (including, as in Russia, a requirement to submit information about the expected number of participants, the timing and the place of the planned event) may be intended to afford the authorities reasonable time in advance of the planned event to ponder various public safety, security or other risks and, where appropriate, to make arrangements to avert such risks. Undoubtedly, no such considerations were at stake before or during Mr Romakhin’s demonstration.”
18. Having examined the parties’ submissions and the circumstances of the present case, the Court finds no reason to reach a conclusion that would depart from the findings in Novikova and Others. The Court considers that the above considerations (in particular, in §§ 127-31) are applicable in the present case in so far as the impugned legislation was applied in 2009 for prosecuting the applicant for organising what the authorities classified as a group event rather than several solo demonstrations, despite the observance of certain (arguably, considerable) distance between demonstrators. The domestic courts failed to provide reasons, which would be sufficient, for classifying the events on 12 December 2009 as a single group event under the PEA and, foremost, for punishing the applicant as its organiser (see §§ 197-201).
19. The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 11 of the Convention, seen in the light of Article 10.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
20. The applicant complained of a violation of Article 5 § 1 of the Convention on account of his arrest and detention on 12 December 2009.
21. Before dealing with the substance of the complaint, the Court needs to determine if it was lodged in compliance with the six-month time-limit under Article 35 § 1 of the Convention.
22. It is noted that the situation complained of ended on 12 December 2009 while the applicant first raised his related complaint before the Court on 19 June 2010, that is more than six months later.
23. There is no indication that the applicant raised the matters relating to arbitrary or unlawful arrest in the course of the court proceedings, which were primarily concerned with the determination of the administrative offence charge rather than the matters of pre-trial arrest or detention. There is nothing to suggest that those matters were examined in any other proceedings. The Court concludes that the present complaint was raised before it more than six months after the violation complained of had ceased to exist.
24. Accordingly, this complaint has been made out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
25. The applicant further complained of the fact that there had been no prosecuting party in the administrative offence case against him and that he had received no legal assistance at the trial.
26. The Court notes that, as regards Article 6 of the Convention, in his first letter to the Court dated 19 June 2010 the applicant merely stated that he intended to lodge a complaint about a violation of “his right to a fair trial by an impartial and independent tribunal”. It is only in his application form dated 13 September 2010 that the applicant first outlined and then further developed the relevant factual context of his grievances. Thus, the Court considers that the complaints under Article 6 of the Convention were lodged on 13 September 2010, which is more than six months after the appeal decision dated 22 January 2010 (compare Zverev v. Russia (dec.), no. 16234/05, 3 July 2012).
27. Accordingly, this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
28. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
29. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage related to his complaints under Articles 5, 6, 10 and 11 of the Convention and RUB 1,500 in respect of pecuniary damage on account of the fine imposed by the domestic court.
30. The Government contested the claims.
31. The Court considers that there is a causal link between the violation found under Article 11 of the Convention and the pecuniary damage alleged; it therefore awards EUR 25. It also awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.
B. Costs and expenses
32. The applicant did not claim any costs or expenses. The Court makes no award.
C. Default interest
33. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 11 of the Convention admissible and the complaints under Articles 5 and 6 inadmissible;
2. Holds that there has been a violation of Article 11 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 25 (twenty-five euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable on this amount, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Helen
Deputy Registrar President