Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> NIKOLENKO AND OTHERS v. RUSSIA - 13679/18 (Article 11 - Freedom of assembly and association : Second Section Committee) [2023] ECHR 653 (07 September 2023)
URL: http://www.bailii.org/eu/cases/ECHR/2023/653.html
Cite as: [2023] ECHR 653
[New search] [Contents list] [Help]
SECOND SECTION
CASE OF NIKOLENKO AND OTHERS v. RUSSIA
(Applications nos. 13679/18 and 20 others -
see appended list)
JUDGMENT
STRASBOURG
7 September 2023
This judgment is final but it may be subject to editorial revision.
In the case of Nikolenko and Others v. Russia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Lorraine Schembri Orland, President,
Frédéric Krenc,
Davor Derenčinović, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 6 July 2023,
Delivers the following judgment, which was adopted on that date:
1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on the various dates indicated in the appended table.
2. The Russian Government ("the Government") were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the disproportionate measures taken against them as organisers or participants of public assemblies. Some applicants also raised other complaints under various provisions of the Convention.
THE LAW
- JOINDER OF THE APPLICATIONS
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
- JURISDICTION
6. The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68-73, 17 January 2023).
- ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
7. The applicants complained principally of disproportionate measures taken against them as organisers or participants of public assemblies, namely their arrest in relation to the dispersal of these assemblies and their conviction for administrative offences. They relied, expressly or in substance, on Article 11 of the Convention.
8. The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and proportionality of interference with it (see Oya Ataman v. Turkey, no. 74552/01, ECHR 2006-XIV, and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009).
9. In the leading cases of Frumkin v. Russia, no. 74568/12, ECHR 2016 (extracts); Navalnyy and Yashin v. Russia, no. 76204/11, 4 December 2014; and Kasparov and Others v. Russia, no. 21613/07, 3 October 2013, the Court already found a violation in respect of issues similar to those in the present case.
10. Having examined all the material submitted to it, having dismissed the Government's objection of non-exhaustion in applications nos. 39614/18, 45704/18 and 48549/19, and having taken into account the issue of compliance with the six-month time-limit under Article 35 § 1 of the Convention (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022, in which the Court addressed the COVID-related extension of the period in question), the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the interferences with the applicants' freedom of assembly were not "necessary in a democratic society".
11. These complaints are therefore admissible and disclose a breach of Article 11 of the Convention.
- OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
12. Some applicants submitted other complaints which also raised issues under the Convention and its Protocols, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible.
13. Having examined all the material before it, the Court concludes that these complaints also disclose violations of the Convention and its Protocols in the light of its findings in Butkevich v. Russia, no. 5865/07, §§ 63-65, 13 February 2018; Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 115-31, 10 April 2018; and Korneyeva v. Russia, no. 72051/17, §§ 34-36, 8 October 2019, as to various aspects of unlawful deprivation of liberty of organisers or participants of public assemblies; Karelin v. Russia, no. 926/08, §§ 58-85, 20 September 2016, concerning the absence of a prosecuting party in the proceedings under the Code of Administrative Offences (the CAO); and Martynyuk v. Russia, no. 13764/15, §§ 38-42, 8 October 2019, relating to the lack of suspensive effect of an appeal against the sentence of administrative detention.
- REMAINING COMPLAINTS
14. Some applicants raised further additional complaints under Articles 5 and 6 of the Convention concerning other aspects of their deprivation of liberty and fairness of the administrative-offence proceedings. In view of the findings in paragraphs 10-13 above, the Court considers that there is no need to deal separately with these remaining complaints.
15. The Court has further examined the rest of the complaints raised by the applicants and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.
- APPLICATION OF ARTICLE 41 OF THE CONVENTION
16. Regard being had to the documents in its possession and to its case-law (see in particular Navalnyy and Others v. Russia [Committee], nos. 25809/17 and 14 others, § 22, 4 October 2022), the Court finds it reasonable to award the sums indicated in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
- Decides to join the applications;
- Holds that it has jurisdiction to deal with the applicants' complaints as they relate to facts that took place before 16 September 2022;
- Declares the complaints under Article 11 of the Convention and the other complaints under the well-established case-law of the Court, as set out in the appended table, admissible, finds that there is no need to examine separately the remaining complaints under Articles 5 and 6 of the Convention, and declares the remainder of the applications inadmissible;
- Holds that these complaints disclose a breach of Article 11 of the Convention;
- Holds that there has been a violation of the Convention and the Protocols thereto as regards the other complaints raised under well-established case-law of the Court (see appended table);
- Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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.
Done in English, and notified in writing on 7 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{signature_p_1} {signature_p_2}
Viktoriya Maradudina Lorraine Schembri Orland
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 11 of the Convention
(disproportionate measures against organisers and participants of public assemblies)
Application no. Date of introduction | Applicant's name Year of birth
| Representative's name and location | Name of the public event Location Date | Administrative charges | Penalty | Final domestic decision Court Name Date | Other complaints under well-established case-law | Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] | |
02/03/2018 | Kirill Dmitriyevich NIKOLENKO 1989 | Terekhov Konstantin Ilyich Moscow | Anticorruption rally
Vladimir
12/06/2017 | Article 20.2 § 2 of CAO | fine of RUB 20,000 | Vladimir Regional Court 06/09/2017 | Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings | 3,500 | |
03/08/2018 | Aleksandr Yuryevich ARTEMOV 1990 | Eysmont Mariya Olegovna Moscow | Anti-corruption manifestation
Moscow
12/06/2017
Rally in support of A. Navalnyy
Moscow
31/01/2021 | Article 20.2 § 6.1 of CAO
Article 20.2 § 6.1 of CAO | fine of RUB 15,000
administrative detention of 7 days | Moscow City Court 06/02/2018
Moscow City Court 27/05/2021 | Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention (i) on 12/06/2017 as administrative suspect, for drawing up a record of administrative offence; and (ii) between 6 p.m. on 31/01/2021 and 01/02/2021, as administrative suspect, "for compilation of administrative material"; no evidence/assessment of any "exceptional circumstances", under the CAO,
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - both sets of the administrative-offence proceedings | 5,000 | |
14/09/2018 | Vladislav Vladimirovich KULCHITSKIY 1997 | Zhdanov Ivan Yuryevich Vilnius | Rally in support on A. Navalnyy
Rostov-on-Don
24/12/2017 | Article 20.2 § 3 of CAO | fine of RUB 15,000 | Rostov Regional Court 19/03/2018 | Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings | 3,500 | |
12/09/2018 | Olga Yuryevna KOMLEVA 1979 | Zhdanov Ivan Yuryevich Vilnius | Opposition rally
Ufa
28/01/2018
Rally against the pension reform
Ufa
09/09/2018 | Article 20.2 § 1 of CA
Article 20.2 § 8 of CAO | fine of RUB 10,000
fine of RUB 75,000 | Supreme Court of the Republic of Bashkortostan 14/03/2018
Supreme Court of the Republic of Bashkortostan 07/11/2018 | Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - both sets of the administrative-offence proceedings | 4,500 | |
22/09/2018 | Dmitriy Yevgenyevich BOGATOV 1993 |
| Anti-corruption rally
Moscow
12/06/2017
Rally in support of A. Navalnyy
Moscow
23/01/2021 | Article 20.2 § 5 of CAO
Article 20.2 § 5 of CAO | fine of RUB 15,000
fine of RUB 10,000 | Moscow City Court 22/03/2018
Moscow City Court 13/05/2021 | Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention (i) on 12/06/2017, and (ii) on 23/01/2021, each time for the sole purpose of drawing up an administrative offence record, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - both sets of the administrative-offence proceedings
| 4,000 | |
06/11/2018 | Dmitriy Vladimirovich KALINYCHEV 1980 |
| Boris Nemtsov memorial march
Nizhniy Novgorod
25/02/2018
Event to protest against unfair elections ("Funeral of the elections")
Nizhniy Novgorod
11/03/2018
Rally against the pension reform
Nizhniy Novgorod
09/09/2018 | Article 20.2 § 8 of CAO
Article 20.2 § 8 of CAO
Article 20.2 § 2 of CAO
| fine of RUB 150,000
administrative detention of 20 days
administrative detention of 20 days
| Nizhniy Novgorod Regional Court 01/08/2018
Nizhniy Novgorod Regional Court 10/05/2018
Nizhniy Novgorod Regional Court 14/11/2018
| Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - all sets of the administrative-offence proceedings,
Prot. 7 Art. 2 - delayed review of conviction by a higher tribunal - the sentence of administrative detention imposed on the applicant on 13/09/2018 was executed immediately, on account of the lack of suspensive effect of an appeal under the CAO | 6,000 | |
13/11/2018
and
31/10/2020 | Aleksandr Aleksandrovich SOFEYEV 1987 | Sergeyeva Irina Vadimovna Moscow
Solovyev Leonid Alekseyevich Moscow | Rally against the ban of the Telegram Messenger
Moscow
16/04/2018
Rally against abusive criminal prosecution
Moscow
03/02/2020
Event in support of LGBT community
Moscow
07/10/2020 | Article 20.2.2 § 1 of CAO
Article 20.2 § 5 of CAO
Article 20.2 § 8 of CAO
| fine of RUB 10,000
fine of RUB 15,000
administrative detention of 30 days
| Moscow City Court 30/05/2018
Moscow City Court 04/09/2020
Moscow City Court 13/10/2020
| Art. 5 (1) - unlawful deprivation of liberty - (i) arrest, escorting to a police station and detention between 16/04/2018 and 17/04/2018 for the sole purpose of drawing up a record of administrative offence (such record was drawn up on 16/04/2018); (ii) arrest, escorting to a police station, detention between 08/10/2020 and 09/10/2020 as administrative suspect;
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings (two sets of the administrative-offence proceedings, final judgments given on 30/05/2018 and 13/10/2020 respectively)
| 5,000 | |
15/02/2019 | Aleksey Yuryevich GOLYSHEV 1976 | Pomazuyev Aleksandr Yevgenyevich Vilnius | Opposition rally
Moscow
05/05/2018
Rally in support of A. Navalnyy
Moscow
31/01/2021
Rally in support of A. Navalnyy
Korolev, Moscow Region
21/04/2021 | Article 20.2 § 5 of CAO
Article 20.2 § 5 of CAO (first-instance court - proceedings discontinued by the court of appeal)
Article 20.2 § 5 of CAO | fine of RUB 10,000
fine of RUB 10,000 (ordered by the first instance court - subsequently quashed, as proceedings discontinued by the court of appeal)
fine of RUB 5,000 | Moscow City Court 24/09/2018
Moscow City Court (administrative-offence proceedings discontinued) 07/06/2021
Moscow Regional Court 27/05/2021 | Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention (i) escorted and detained in a police station on 05/05/2018 as administrative suspect; (ii) on 31/01/2021, for drawing up a record of administrative offence; (iii) between 21/04/2021 and 23/04/2021, as administrative suspect;
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - the first and the third sets of the administrative-offence proceedings (final judgments of 24/09/2018 and 27/05/2021) | 5,000 | |
18/03/2019 | Timur Arturovich TUKHVATULLIN 2001 | Sholokhov Igor Nikolayevich Kazan | Rally against the pension reform
Kazan
09/09/2018 | Article 20.2 § 5 of CAO | fine of RUB 10,000 | Supreme Court of the Republic of Tatarstan 20/02/2019 | Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention on 09/09/2018, in excess of three hours, for the sole purpose of drawing up a record of administrative offence | 4,000 | |
04/05/2019 | Kirill Vladimirovich SEREBRENNIKOV 1996 | Fedotova Yuliya Yevgenyevna Yekaterinburg | Rally against the pension reform
Yekaterinburg
09/09/2018 | Article 20.2 § 5 of CAO | fine of RUB 10,000 | Sverdlovsk Regional Court 22/01/2019 | Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings | 3,500 | |
21/05/2019 | Anatoliy Mariyevich SVECHNIKOV 1972 |
| Rally against the pension reform
Yekaterinburg
09/09/2018 | Article 20.2 § 5 of CAO | fine of RUB 10,000 | Sverdlovsk Regional Court 28/11/2018 | Art. 5 (1) - unlawful deprivation of liberty - arrest, delayed escorting to a police station, detention on 09/09/2018 in excess of three hours, for the sole purpose of drawing up a record of administrative offence,
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings | 4,000 | |
28/05/2019 | Natalya Sergeyevna PETERIMOVA 1987 | Balog Natalya Andreyevna Krasnoyarsk | Rally against the pension reform
Krasnoyarsk
09/09/2018 | Article 20.2 § 5 of CAO | fine of RUB 15,000 | Krasnoyarsk Regional Court 29/11/2018 | Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention on 18/09/2018 for the sole purpose of drawing up a record of administrative offence; escort and arrest records not compiled, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
| 4,000 | |
16/03/2019 | Anton Viktorovich STRUNIN 1982 |
| Rally against the pension reform
Penza
09/09/2018
| Article 19.3 § 1 of CAO
and
Article 20.2 § 1 of CAO | administrative detention of 10 days
and
fine of RUB 14,000 | Penza Regional Court 18/09/2018
and
Penza Regional Court 04/04/2019 | Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention between 11/09/2018 and 12/09/2018 as administrative suspect | 5,000 | |
28/08/2019 | Petr Vladimirovich ABLIN 1981 |
| Event against the pension reform
Moscow
05/11/2018
Manifestation for fair elections to Mosgorduma
Moscow
27/07/2019
Manifestation in support of A. Navalnyy
Moscow
23/01/2021
Manifestation in support of A. Navalnyy
Moscow 31/01/2021 | Article 20.2 § 5 of CAO
Article 20.2 § 5 of CAO
Article 20.2 § 5 of CAO
Article 20.2 § 5 of CAO | fine of RUB 15,000
fine of RUB 15,000
fine of RUB 20,000
fine of RUB 20,000 | Moscow City Court 28/02/2019
Moscow City Court 14/10/2019
Moscow City Court 14/04/2021
Moscow City Court 08/04/2021 | Art. 5 (1) - unlawful deprivation of liberty-arrest, escorting to a police station, detention on four occasions, each time for the sole purpose of drawing up a record of administrative offence: (i) on 05/11/2018, (ii) on 27/07/2019, in excess of three hours (the administrative offence record only drawn up on 31/07/2019), (iii) on 23/01/2021 (administrative offence record compiled only on 25/01/2021), and (iv) on 31/01/2021, in excess of three hours, and after the administrative-offence record had been drawn up,
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - four sets of the administrative-offence proceedings
| 5,000 | |
14/10/2019 | Aleksandr Vladimirovich YUFRYAKOV 1958 | Sholokhov Igor Nikolayevich Kazan | Rally against construction of a disposal site
Arkhangelsk
07/04/2019 | Article 20.2 § 6 of CAO | fine of RUB 14,000 | Arkhangelsk Regional Court 18/06/2019 | Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings | 3,500 | |
28/01/2020 | Aleksey Yuryevich CHERKES 1984 | Memorial Human Rights Centre Moscow | Manifestation for fair elections to Mosgorduma
Moscow
27/07/2019 | Article 20.2 § 6.1 of CAO | fine of RUB 15,000 | Moscow City Court 18/11/2019 | Art. 5 (1) - unlawful deprivation of liberty - arrest and escorting to the police office, detention between 27/07/2019 and 29/07/2019 as administrative suspect (offence record compiled already on 27/07/2019),
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings | 4,000 | |
29/01/2020 | Yevgeniy Ivanovich SKACHKOV 1979 | Memorial Human Rights Centre Moscow | Manifestation for fair elections to Mosgorduma
Moscow
27/07/2019 | Article 20.2 § 6.1 of CAO | fine of RUB 10,000 | Moscow City Court 04/09/2019 | Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention between 27/07/2019 and 29/07/2019 as administrative suspect; no evidence/assessment of any exceptional circumstances under the CAO,
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings | 4,000 | |
27/02/2020 | Aleksey Igorevich SEMENOV 1993 | Memorial Human Rights Centre Moscow | Demonstration in support of Ivan Golunov
Moscow
12/06/2019 | Article 20.2 § 6.1 of CAO | fine of RUB 15,000 | Moscow City Court 26/08/2019 (the final decision served on the applicant on the following day) | Art. 5 (1) - unlawful deprivation of liberty- arrest, delayed escorting to a police station, detention on 12/06/2019 for the sole purpose of drawing up a record of administrative offence;
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings | 4,000 | |
25/03/2020 | Nikolay Nikolayevich LYASKIN 1982 | Pomazuyev Aleksandr Yevgenyevich Vilnius | Manifestation for fair elections to Mosgorduma
Moscow
31/08/2019 | Article 20.2 § 5 of CAO | fine of RUB 20,000 | Moscow City Court 02/12/2019 |
| 3,500 | |
02/07/2020 | Vyacheslav Sergeyevich KUZNETSOV 1987 | Memorial Human Rights Centre Moscow | Manifestation for fair elections to Mosgorduma
Moscow
03/08/2019 | Article 20.2 § 5 of CAO | fine of RUB 15,000 | Moscow City Court 02/10/2019 | Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention on 03/08/2019 for the sole purpose of drawing up a record of administrative offence;
6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
| 4,000 |
[1] Plus any tax that may be chargeable to the applicants.