European Court of Human Rights

 

 

THIRD SECTION

CASE OF RAYMOV AND RYABENKO v. RUSSIA

(Applications nos. 59770/18 and 1038/19)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

1 March 2022

 

 

 

 

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

 

In the case of Raymov and Ryabenko 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 applications (nos. 59770/18 and 1038/19) 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”) (see the appended table);

the decision to give notice of the applications 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 this office, Mr M. Vinogradov;

the decision to dismiss the Government’s objection to the examination of the case by a Committee;

the Government’s observations;

Having deliberated in private on 1 February 2022,

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

SUBJECT-MATTER OF THE CASE

I.         “Hybrid” public event on 5 May 2018

1.  Mr A. Navalnyy launched a nationwide campaign called “He is not our Tsar” consisting of holding, on 5 May 2018, rallies to protest against the forthcoming inauguration of Mr V. Putin as the President of the Russian Federation after the election on 18 March 2018. Ms P. notified the Cheboksary town administration of her intention to hold a public event in the form of a march and a meeting. The town administration informed Ms P. that the itinerary for the march included areas where public events were not allowed under the regional legislation (see paragraph 6 below). The town administration invited Ms P. to hold a meeting instead of the planned event, and to do it in one of the specially designated areas approved by the regional government in its Decree no. 598 of 26 December 2012, specifically at Sosnovskaya Street next to a church, a local police station and a children’s park. Ms P. replied, indicating her disagreement. According to the applicants, while the venue mentioned by the town administration remained within the town borders, the distance between it and the initially proposed venue amounted to some fifty kilometres, it had a poor transport and public infrastructure which would have been impracticable for the presence of hundreds of participants. Subsequently, the administration’s decision was upheld on judicial review.

2.  On 5 May 2018 people assembled into a non-approved rally, albeit in a different manner as compared to the notice lodged by Ms P. At 2 p.m. at Respublika Square, according to the applicants, the police ordered the demonstrators to cease the meeting, threatening them with use of force. The demonstrators then started to move through the main town streets, walking on the pavements (to avoid disruption of traffic) and were followed by the police. At Chapayev Square they were met by another police squad and dispersed.

3.  According to the authorities, the applicants did not comply with the police order to cease participation in the meeting at Respublika Square. Then, from 2.30 to 4 p.m., at Chapayev Square they participated in what the authorities and the courts classified as a “demonstration” under the Public Events Act (see below). They did not comply with the police order to cease participation in that demonstration.

4.  At both venues the police made several warnings informing the demonstrators of the unlawful nature of their presence in a public place and required them to cease their unlawful activities.

II.      Proceedings against the applicants

A.    Mr Raymov

5.  On 15 May 2018 the Leninskiy District Court of Cheboksary examined, at two hearings, two separate cases concerning the applicant’s participation in the meeting and the demonstration. In each case he was convicted under Article 20.2 § 5 of the CAO and was sentenced to fines of 10,000 and 20,000 Russian roubles (RUB; approximately 135 and 270 euros at the time). The applicant appealed, arguing that he had exercised his freedom of peaceful assembly by taking part in one single event. It had been unjustified to prosecute and punish him separately for two parts of the same event.  On 5 June 2018 the Supreme Court of the Chuvashiya Republic held appeal hearings in each case and upheld the trial judgments, stating that the applicant had violated section 6 § 3 of the PEA because he had not complied with the orders to disperse that had been given during the meeting and demonstration; and that the applicant had been prosecuted for different facts.

6.  In a separate (third) set of proceedings the applicant was convicted under Article 19.3 of the CAO in relation to his non-compliance with the order to disperse during the meeting on 5 May 2018. The appeal court set aside that judgment and discontinued the proceedings for lack of corpus delicti, pursuant to a recent resolution by the Plenary Supreme Court of the Russian Federation on the application of the lex specialis rule in cases concerning rallies (see Korneyeva v. Russia, no. 72051/17, §§ 25 and 60, 8 October 2019).

B.    Mr Ryabenko

7.  On 9 June 2018 the District Court examined the charges under Article 19.3 and Article 20.2 § 5 of the CAO on account of his participation in the meeting on 5 May 2018. The applicant was sentenced to a fine of RUB 10,500. The court took note of the existence of a final decision by which the town administration’s reply to Ms P.’s notice had been upheld on judicial review (see paragraph 1 above); that the applicant had taken part in “a non‑notified public event consisting of a meeting, which had then transformed into a demonstration”; and that he had not complied with the repeated orders from the police requiring the termination of that event. The court also stated as follows:

“The court takes into account that the event’s organisers had defined its topic as protection of citizen’s rights while the slogans and speeches during the event were in breach of that topic; in substance they amounted to negative assessment of the person who had been elected to the post of the President of the Russian Federation, and did not contain an indication of any civic views or deficiencies in the functioning of the State or proposals for improvements.”

8.  In separate proceedings, on 9 June 2018 the District Court convicted the applicant under Article 20.2 § 5 of the CAO on account of his participation in the demonstration. He was sentenced to up to twenty hours of community work.

9.  On 10 July 2018 the Supreme Court of the Chuvashiya Republic reviewing the judgment described in paragraph 7 above, set aside the conviction under Article 19.3 of the CAO, upheld the conviction for the offence under Article 20.2 of the CAO relating to the meeting and reduced the fine to RUB 10,000. On the same date the same judge also examined the applicant’s appeal against the judgment relating to the demonstration (see paragraph 8 above). He upheld it, considering that the applicant had violated section 6 § 3 (1) of the PEA; that the applicant had committed a serious breach of public order and public safety; his actions had entailed consequences consisting of the presence of numerous people on the pavements in the town centre and near buildings hosting public authorities; thereby he had impeded the movement of pedestrians and had “created a real threat” of interfering with the authorities’ functioning and the other people’s rights.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

10.  The Federal Law no. 54-FZ of 19 June 2004 (“the Public Events Act” or “PEA”) defines a “public event” as an open, peaceful action accessible to all, held in the form of a gathering, a meeting, a demonstration, a march, or a “picket” or in various combination of these forms (section 2). Pursuant to sections 5 and 7 of the Act, the organiser of a public event must notify the executive or municipal authority of the event; the procedure for such notification is determined by a regional statute (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 45, 15 November 2018).

11.  Under the Chuvashiya Republic’s Statute no. 77 of 30 November 2012, public events were prohibited at all the locations mentioned in the federal law (specifically, section 8 of the PEA) as well as at/near shopping malls or markets and within fifty meters of them; buildings hosting educational, children-related, cultural, medical or sports institutions and, until 2020, within fifty meters of those buildings; sports areas and children’s playgrounds; religious buildings or objects and, until 2020, within fifty meters of them; buildings hosting municipal and public authorities and, until 2020, within thirty meters of them; and entrances to residential buildings (if less than five meters).

THE LAW

I.        JOINDER OF THE APPLICATIONS

12.  Having regard to the similar subject matter of the applications, the Court decides to examine them jointly in a single judgment.

II.     ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION on account of administrative convictions

13.  The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

14.  An “interference” infringes Article 11 of the Convention unless it satisfies the requirements of paragraph 2 of that Article.

A.    Prescribed by law

15.  The Court notes that the factual elements in the file strongly indicate that the event of 5 May 2018 has been seen by its organisers, the authorities and participants as a single public event (see paragraph 1 above). The applicants were convicted for failing to comply with the police orders to cease their participation in that non-approved event. No other act was held against them under Article 20.2 § 5 of the CAO together with section 6 § 3 of the PEA.

16.  The Public Events Act expressly provided for a possibility to hold or participate in what could be classified as a hybrid public event. That type of event could, for instance, include movement of demonstrators from one venue to another. The Government have not referred to any other regulations or jurisprudence clarifying the approach concerning a hybrid event.

17.  Having said this, in view of the findings below concerning the “necessity” of the convictions, in the present case the Court leaves open the question of whether it was foreseeable to the applicants that they would be prosecuted, in separate proceedings, under Article 20.2 of the CAO on account of their non-compliance with the police order to disperse issued after the meeting and what was then classified as a separate non-approved demonstration.

B.    Pursuing a legitimate aim and necessary in a democratic society

18.  The relevant general principles are well established in the case-law (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, §§ 142-60, ECHR 2015; Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, § 142, 7 February 2017; and Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 128, 15 November 2018).

19.  The applicants were not in charge of organising or running any assembly on 5 May 2018, and, a fortiori, did not intentionally fail to abide by the requirement to lodge a prior notice about a planned event. They were convicted as ordinary demonstrators. The event and their participation in it were peaceful. The only specific act held against them was their non‑compliance with an order to disperse that was issued solely on the basis that that event had not received official approval from the competent authority.

20.  The courts did not substantiate that there had been any real risk of disruption to ordinary life due to the actions of the applicants or their fellow protestors that, in the concrete circumstances, would have exceeded the level of minor disturbance that follows from normal exercise of the right of peaceful assembly in a public place. There were no signs of an imminent outbreak of violence or increase in the level of disturbance. The courts did not ascertain that, in exercising the discretion afforded to them by the domestic law by way of issuing orders to disperse, the police had acted in a manner compatible with the essence of the right to freedom of peaceful assembly, and with due recognition of the privileged protection under the Convention of political speech, debate on questions of public interest and the peaceful expression of opinions on such matters. Nor does it appear that the courts in the CAO cases struck a fair balance between those interests, on the one hand, and those of the applicants in exercising their right to freedom of peaceful assembly, on the other. At the time the authorities were not required to carry out such a balancing assessment (see Navalnyy, §§ 116 and 133, and Lashmankin and Others, § 461, both cited above). The interferences in the form of prosecution for failing to comply with those orders to disperse were not justified with reference to specific and averred substantive grounds. It also appears that the police did not consider it necessary to levy any sanctions upon the applicants at the event venue, as they left it sometime after the orders to disperse had been given (see paragraph 3 above).

21.  The shortcomings mentioned above have been identified in numerous cases where the Russian police intervened for the sole reason that the public event had not received official approval, and in which that formal unlawfulness had been put forward as the only justification, including for convicting the applicants of administrative offences (see, among others, Navalnyy, cited above, §§ 149-50, and cases cited therein).

22.  The Court is mindful of its fundamentally subsidiary role in the mechanism established by the Convention, according to which the Contracting Parties have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 175, ECHR 2016). It also notes that the principle of subsidiarity imposes a shared responsibility between the Contracting Parties and the Court, and that national authorities must interpret and apply the domestic law in a manner that gives full effect to the Convention (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 250, 1 December 2020). Even assuming that the reasons relied on by the courts were relevant, they were not sufficient to show that the convictions were “necessary in a democratic society” in the circumstances of the case.

23.  There has been a violation of Article 11 of the Convention in respect of both applicants on account of their convictions under Article 20.2 § 5 of the CAO.

III.   other ALLEGED VIOLATIONS

24.  The applicants also complained under Article 6 of the Convention about the lack of a prosecuting party at the court hearings in their CAO cases; under Articles 10 and 11 of the Convention about being prosecuted, albeit without any final conviction, under Article 19.3 of the CAO in relation to the same facts on 5 May 2018; and under Article 4 of Protocol No. 7 about being prosecuted three times and convicted two times in relation to the hybrid event. Having regard to the nature and scope of the findings under Article 11 of the Convention in the present case, the Court decides to dispense with the examination of the admissibility and merits of those complaints.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  The applicants submitted no claim within the prescribed time-limit. The Court makes no award.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the complaint under Article 11 of the Convention (as regards the convictions under Article 20.2 § 5 of the CAO) admissible;

3.      Holds that there has been a violation of Article 11 of the Convention in respect of each applicant;

4.      Holds that there is no need to examine the admissibility and merits of the remaining complaints.

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

 

 

APPENDIX