European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF FEDOTOVA v. RUSSIA

(Application no. 2064/10)

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

1 March 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Fedotova v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Darian Pavli, President,
          Peeter Roosma,
          Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 2064/10) 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”) on 27 November 2009 by a Russian national, Ms Irina Borisovna Fedotova, born in 1978 and living in Luxembourg (“the applicant”) who was represented before the Court by Mr E. Daci, a lawyer practising in Geneva;

the decision to give notice of the application to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov;

the parties’ observations;

Having deliberated in private on 1 February 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns restrictions of the applicant’s rights to take part in a public event, under Article 11 of the Convention. The applicant planned to hold a demonstration (“picket”, пикет) for purpose of drawing the attention of the public and of State officials to the problem of haemorrhoids in Russia. On 19 March 2009 the applicant and two other organisers of the picket notified the Prefect of the Central Administrative District of Moscow of the date, time, place and purpose of the event. The picket was scheduled to take place on 1 April 2009, with no more than twenty-five participants expected to attend. On the same day the Deputy Prefect of the Central Administrative District of Moscow refused to authorise the picket, stating that the purpose of the event was to convey false information as, according to information that he had received from medical personnel, there existed no problem with haemorrhoids in Russia. The picket organisers were invited to remedy the shortcomings in the notification of their picket and to resubmit it.

2.  On 27 March 2009 the applicant, together with two other picket organisers, resubmitted their notification specifying that, “according to the National Centre for Radiology of the Ministry of Health and Social Development of the Russian Federation, about 70% of Russians over forty years old have haemorrhoids, which is one of the most common human diseases”. On the same day the Deputy Prefect of the Central Administrative District of Moscow again refused to authorise the picket, noting that the statistics that the applicant and the two other picket organisers had provided were not in line with the relevant data from the Ministry of Health and Social Development of the Russian Federation. The picket organisers were invited once again to remedy the shortcomings in their notification and to resubmit it. The picket organisers then decided to cancel the event that they had planned.

3.  On 7 April 2009 the applicant lodged a complaint with the Taganskiy District Court of Moscow regarding the refusals of the Deputy Prefect of 19 and 27 March 2009. She argued that Russian law did not permit a blanket ban on the holding of peaceful assemblies as long as the purpose of the assembly in question was in conformity with “constitutional values”.

4.  On 11 June 2009 the Taganskiy District Court rejected the applicant’s complaint. It referred to the definition of a public event, as specified by section 2(1) of the Public Events Act (no. FZ-54 of 19 June 2004). Under that provision, a public event was one which aimed to express or develop opinions freely and to voice demands on issues related to political, economic, social or cultural life in the country, or issues related to foreign policy. The court held that since the picket at issue did not pursue any such aims, the refusals to authorise it had been lawful. On 8 October 2009 the Moscow City Court upheld the judgment of 11 June 2009 on appeal.

5.  Relying on Article 11 of the Convention, the applicant complained that the local authorities’ decisions refusing to approve her picket had violated her right to freedom of peaceful assembly. Relying on Article 13 of the Convention, she also contended that she had not had at her disposal any procedure which would have allowed her to obtain an enforceable decision prior to the date of the planned picket.

THE COURT’S ASSESSMENT

I.        ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

6.  The Government submitted that the applicant’s complaint was belated because it had been lodged with the Court more than six months following the local authorities’ refusal to authorise her picket. However, this argument cannot be accepted. At the material time, the applicant did not know that a judicial review of such a refusal constituted an ineffective remedy because a Court judgment in that regard had been given for the first time only in 2017 (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 342‑61, 7 February 2017). Accordingly, it was not unreasonable for the applicant to attempt to comply with the principle of subsidiarity by bringing the issue before the domestic authorities prior to applying to the Court (see, for similar reasoning, Zubkov and Others v. Russia, nos. 29431/05 and 2 others, § 106, 7 November 2017, and Kablis v. Russia, nos. 48310/16 and 59663/17, § 42, 30 April 2019). Therefore, the applicant complied with the six-month rule.

7.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

8.  The Court will examine this complaint under Article 11, interpreted where appropriate in the light of Article 10 (see Lashmankin and Others, cited above, §§ 363‑65). The general principles concerning the restrictions on the right to freedom of peaceful assembly have been summarised in Lashmankin and Others (cited above, §§ 402-12).

9.  It has not been disputed by the parties that the refusals to authorise the applicant’s picket by reference to its aim constituted an interference with her right to freedom of peaceful assembly. The refusals were based on sub‑paragraph 2 of section 12(1) of the Public Events Act, which empower the relevant regional or municipal authorities to make proposals aimed at modifying the purpose of an event if it is incompatible with the provisions of the Act. The Court has already criticised those provisions of the Public Events Act, that confer an unduly wide degree of discretion on the executive authorities to propose changes to the location, time or manner of conduct of a public event, those powers often being used in an arbitrary and discriminatory way (see Lashmankin and Others, cited above, §§ 416‑30 and 477). In the present case, however, the issue of the lawfulness of the interference in question is indissociable from the question of whether that interference was proportionate (see Hyde Park and Others v. Moldova (nos. 5 and 6), nos. 6991/08 and 15084/08, § 44, 14 September 2010). It needs to be assessed, therefore, whether the refusal by the authorities to approve the picket was necessary in a democratic society, while also taking into consideration the issue of whether the interference pursued a legitimate aim.

10.  In the present case, the applicant aimed to attract the attention of the public and of State officials to what could be perceived as a public health issue which, in her view, merited public discussion. One of the aims of freedom of assembly is to secure a forum for public debate and the open expression of protest (see Éva Molnár v. Hungary, no. 10346/05, § 42, 7 October 2008) on various issues, which may concern, but are not limited to, political, social or cultural issues. The guarantees of Article 11 apply to all gatherings except those where the organisers and participants have violent intentions, incite violence or otherwise reject the foundations of a democratic society (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 92, ECHR 2015). The national authorities and the Government did not assert that the picket organisers had had any of the above intentions. The sole reason for opposing the picket at issue was its subject matter and its organisers’ alleged failure to demonstrate that it necessitated any public discussion (see paragraph 4 above). Neither the national courts nor the Government explained how that hypothetical failure could have been linked to any of the legitimate aims listed in the second paragraph of Article 11. The domestic authorities, therefore, took a formalistic approach in opposing the applicant’s event on the basis of the contents of its message. However, a demonstration cannot be banned simply because the authorities consider that the demonstrators’ “message” is wrong (see Primov and Others v. Russia, no. 17391/06, § 135, 12 June 2014). Content-based restrictions on the freedom of assembly should be subjected to the most serious scrutiny by this Court (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 136, 15 November 2018). In the present case, the national authorities did not put forward any convincing argument that would justify such a restriction.

11.  There has therefore been a violation of Article 11 of the Convention.

II.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

12.  This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

13.  Having regard to the findings under Article 11 of the Convention, it is not necessary to examine separately the complaint under Article 13 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

 

15.  The Government contested those claims.

16.  The Court awards the applicant EUR 2,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant. The Court dismisses the claim for costs and expenses because it has not been substantiated that she paid them or was under a legally enforceable obligation to pay them (compare Mazepa and Others v. Russia, no. 15086/07, §§ 89-90, 17 July 2018; Radzevil v. Ukraine, no. 36600/09, §§ 94-96, 10 December 2019; Udaltsov v. Russia, no. 76695/11, § 201, 6 October 2020; and Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 61, 8 October 2020).

17.  The Court further 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 application admissible;

2.      Holds that there has been a violation of Article 11 of the Convention;

3.      Holds that there is no need to examine the complaint under Article 13 of the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

          Olga Chernishova                                                   Darian Pavli
          Deputy Registrar                                                      President