THIRD SECTION
CASE OF KABLIS v. RUSSIA
(Applications nos. 48310/16 and 59663/17)
JUDGMENT
STRASBOURG
30 April 2019
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kablis v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Vincent A. De Gaetano, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 2 April 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 48310/16 and 59663/17) 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 Grigoriy Nikolayevich Kablis (“the applicant”), on 28 July 2016 and 30 July 2017 respectively.
2. The applicant was represented by Mr V. Zubkov, a lawyer practising in Syktyvkar, Mr A. Laptev, a lawyer practising in Moscow, and Mr E. Mezak, a human-rights defender from Syktyvkar who was granted leave by the President of the Court to represent the applicant in application no. 48310/16. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
3. The applicant complained of a breach of his right to freedoms of expression and assembly and the lack of an effective remedy in that respect.
4. On 27 March and 8 September 2017 the Government were given notification of the applications.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1976 and lives in Syktyvkar.
A. Notification of a public event and the blocking of the applicant’s social networking account and of three entries on his Internet blog
6. On 19 September 2015 the Federal Security Service (‘the FSB”) and the Investigations Committee of the Russian Federation announced that criminal proceedings on suspicion of membership of a criminal gang and fraud had been opened against the Governor of the Komi Republic, Mr Gaizer, one of his deputies, several high-ranking officials in the Komi Republic government, the speaker of the Komi Republic parliament and a representative of the Komi Republic in the upper chamber of the Russian Parliament. All of them were arrested on the same day.
7. On 21 September 2015 the applicant, together with Ms S., notified the Syktyvkar Town Administration of their intention to hold a “picket” (пикетирование) from 5 to 6 p.m. on 25 September 2015 at the crossroads of Lenin and Kommunisticheskaya streets behind the Lenin monument, which fifty people were expected to attend. The aim of the event was to “discuss the arrest of the Komi Republic government”.
8. On the same day the applicant published a copy of his notification of 21 September 2015 on his Internet blog. He said that the aim of the “picket” was to let the people express their thoughts about the arrests of members of the Komi Republic government. Any opinions – from approval to criticism of the arrests – were welcome. He hoped that the “picket” would be approved. However, if the town administration proposed to hold it on the outskirts of the town, a “people’s assembly” (народный сход), which did not require prior notification, would be held at the same location (behind the Lenin monument). The applicant then criticised the fact that regional governors were appointed by the President and expressed the wish that governors be elected by the people. He asked why Mr Gaizer had been appointed governor of the Komi Republic in 2010 if, according to the investigators, he had been a member of a criminal gang since 2006. He then said that the accusations against Mr Gaizer and the others seemed to be based on a very slim evidentiary basis, which gave reasons to believe that the criminal proceedings against them were politically motivated. In his opinion, Mr Putin was trying to frighten other governors into submission. In any event, appointed governors always served the interests of those who had appointed them. He therefore wanted to propose a discussion about the future of the Komi Republic and, in particular, about whether the people wanted the next governor to be appointed or elected.
9. Later on the same day, 21 September 2015, the Syktyvkar Town Administration refused to approve the venue chosen by the applicant, pointing out that regional law no. 91-RZ of 20 November 2012 [sic] prohibited the holding of public events in Stefanovskaya Square (see paragraph 34 below). The town administration proposed that the “picket” be held at one of the special locations for public events designated by the Komi Republic government. The applicant received that decision the following day, 22 September 2015.
10. On 22 September 2015 the applicant published a new entry on his Internet blog, informing his readers that the town administration had refused to approve the venue behind the Lenin monument, and enclosing a copy of its decision of 21 September 2015. He said that a “people’s assembly” would be held instead at the same location and time. He explained that a “people’s assembly” was an assembly of people who gathered to discuss without there being any organisers. Unlike a “picket”, it was not possible to use placards during a “people’s assembly”. The applicant then stated that the official who had signed the refusal to approve the “picket” was the same official who had been responsible for a 30% increase in the cost of heating in the previous two years.
11. On 23 September 2015 the applicant also published a post on VKontakte,[1] calling for participation in the public discussion on 25 September 2015.
12. On 24 September 2015 the applicant’s VKontakte account was blocked by the VKontakte administrator following an order by the Federal Service for Supervision of Communications, Information Technology and Mass Media and a deputy Prosecutor General of the Russian Federation. The deputy Prosecutor General found that the VKontakte post described in paragraph 11 above, which was publicly accessible, contained information about a “picket” to be held on 25 September 2015 at the crossroads of Lenin and Kommunisticheskaya streets. The town administration had, however, refused to allow the “picket” because it was prohibited to hold public events at that location. The post therefore amounted to campaigning for participation in an unlawful public event in breach of section 10 paragraph 1 of the Public Events Act (for a summary of the domestic law provisions, see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, § 249, 7 February 2017). The applicant’s VKontakte account therefore had to be blocked pursuant to section 15.3(1) of the Information Act (see paragraph 36 below).
13. On 25 September 2015 the applicant published a third entry on his blog. He asked what would happen if many people came to the “people’s assembly” later that day. He did not believe that it would make the Kremlin change its politics, appoint a responsible local person as the governor of the Komi Republic or stop unsubstantiated accusations against Mr Gaiser. He claimed, however, that a high participation rate would show that there were many people who were not afraid to express their opinion. The FSB and the Prosecutor General’s office were afraid of politically active people. He called on everyone to come to the people’s assembly to prevent similar situations in future.
14. On the same day the administrator of the Internet site that hosted the applicant’s blog informed him by email that access to the three blog entries described in paragraphs 8, 10 and 13 above had been restricted on the order of the Prosecutor General’s office because they had been found to contain calls to participate in public events held in breach of the established procedure.
15. At about 7 p.m. on 25 September 2015 about fifty people gathered near the Lenin monument. The “people’s assembly” went peacefully and without any disturbance.
B. Judicial review of the refusal to approve the venue of the “picket”
16. On 26 October 2015 the applicant challenged before the Syktyvkar Town Court the town administration’s decision of 21 September 2015 refusing to approve the location of the “picket”. He submitted, in particular, that the “picket” had been intended to take place fifty metres from Stefanovskaya Square. In any event, it would not have caused any disturbance or inconvenience. The special designated locations proposed by the town administration would have been unsuitable.
17. On 18 November 2015 the Syktyvkar Town Court rejected the applicant’s complaint. After citing Article 11 of the Convention, the applicable domestic provisions and the Constitutional Court’s decision of 2 April 2009 (see a summary of the domestic law provisions in Lashmankin and Others, cited above, §§ 255-59), the court held:
“The complainant’s argument that the event would lose its purpose if held at the locations proposed by [the town administration] is unsubstantiated.
In substance the law requires organisers to make reasonable and sufficient efforts to reach a compromise on the basis of a balance of interests in order to enjoy the right to freedom of assembly. In a situation where there is no ban on holding a public event but rather an alternative location is proposed, the organisers may not reject without valid reasons the conditions proposed by the authorities for holding the event.
Decree no. 598 of 25 December 2012 by the Komi Republic Government designated [special locations for holding public events in Syktyvkar], having ensured that they were in keeping with the aims of public events and accessible by public transport, permitted the organisers of, and participants in, public events to use public utility facilities, respected sanitary norms and rules, and guaranteed the safety of the organisers of, and participants in, public events.
The [town administration’s] decision of 21 September 2015 mentioned those locations, de facto proposing them as an alternative [to the location chosen by the applicant].
[The town administration’s] decree no. 9/3483 of 4 September 2013 amended [its] decree no. 10/4160 of 28 October 2008 on locations (plots of land) where public events were prohibited. In accordance with the amended decree, it is prohibited to hold public events at the location chosen by the complainant – at the crossroads of Lenin and Kommunisticheskaya streets.
In such circumstances the municipal authority’s proposal to change the location of Mr Kablis’s public event was well reasoned and lawful ...
The court considers that the refusal to approve the location for the reasons advanced in the [town administration’s] decision was lawful and acceptable ...
The [town administration’s] decision of 21 September 2015 in Mr Kablis’s case was made within the time-limit established by law and contained reasons justifying the impossibility of holding the public event at the chosen location, a well-reasoned proposal to change the location and an explanation of the procedure for notifying public events. The complainant was not therefore deprived of a possibility to enjoy his constitutional right to hold [public events] in accordance with the procedure established by [the Public Events Act].
The complainant’s rights and freedoms under Articles 10 and 11 of the Convention were not restricted by the contested decision; there were no obstacles preventing the complainant from enjoying his constitutional rights.”
18. The applicant appealed. He submitted, in particular, that the crossroads of Lenin and Kommunisticheskaya streets was outside the area where public events were prohibited by regional law no. 91-RZ. The town administration’s decree no. 9/3483, which allegedly prohibited public events at that location, had never been published and was therefore not accessible to the public.
19. On 28 January 2016 the Supreme Court of the Komi Republic upheld the judgment of 18 November 2015 on appeal, finding it lawful, well reasoned and justified. It held:
“The [district] court rejected the complaint on the merits because the contested refusal to approve the chosen location of the picket had been made by the competent authority in accordance with the procedure prescribed by law. The municipal authority had given the complainant an objective possibility to enjoy his constitutional and Convention rights.
The [district] court correctly applied [the Public Events Act] providing for the conditions for enjoying the right to peaceful assembly guaranteed by Article 31 of the Constitution ...
Having assessed the evidence in the case file, the [district] court made a correct finding that [the town administration’s] proposal to change the location of the public event chosen by the organisers had been substantiated, well reasoned and justified by the necessity to respect the balance of interests of the parties and to ensure public safety.
As correctly established by the [district] court, it is prohibited to hold public events at the location chosen by the complainant – at the crossroad of Lenin and Kommunisticheskaya streets.
Decree no. 598 of 25 December 2012 by the Komi Republic Government designated [special locations for holding political public events in Syktyvkar].
The choice of a location for an event and its approval by the municipal authorities does not restrict the participants’ right to freedom of opinion and expression. The argument that it was impossible to hold the event was hypothetical and did not refer to any valid reasons explaining why the locations proposed by [the town administration] were incompatible with the public event’s purposes sought by the organisers and its social and political significance.
The [district] court correctly held in the judgment that in accordance with Article 17 § 3 of the Constitution of the Russian Federation, the enjoyment of one’s rights and freedoms must not breach the rights and freedoms of others. Therefore, the holding of a public event by some citizens must not create a situation where other citizens are arbitrarily deprived of a possibility to enjoy their rights in accordance with the established order and traditions.
There were therefore objective and sufficient reasons – explaining why it was impossible to approve the location of the public event chosen by the organisers – for the proposal to change the location with the aim of ensuring a balance between the rights of the organisers and those of third persons.
[The town administration] did not omit to examine the request for approval of the location of the public event and gave its reply to the complainant within the statutory time-limit. The reply contained reasons explaining why it was impossible to hold the public event at the chosen location and a well-reasoned proposal to change the location. In the court’s opinion, the complainant’s constitutional rights and interests were respected and there was no violation of Article 11 of [the Convention] guaranteeing freedom of assembly, or of [the Public Events Act]. The law does not guarantee the organiser of a public event an unconditional right to hold a public event at the location which he considers the most relevant to its political and social significance.
[The town administration] fulfilled its statutory obligation to propose an alternative location for the public event that was compatible with its purposes. The locations proposed were an adequate alternative to the chosen location and were in keeping with its purposes.
The [district] court therefore correctly rejected the complaint.
The arguments set out in the appeal submissions are limited to a statement that the contested decision of [the town administration] refusing to approve the location chosen for the public event in Stefanovskaya Square had breached the complainant’s rights to freedom of assembly, expression, conscience and religion. These arguments are based on an incorrect assessment of the facts of the case and an incorrect interpretation of the applicable legal provisions. They do not therefore warrant the quashing of the [district] court’s judgment ...
The contested decision of [the town administration] was in accordance with [the Public Events Act], was made within the municipal authorities’ powers and was in the interests of ensuring public order, with the aim of preventing disorder, protecting health and morality, and safeguarding the rights and freedoms of others. It did not therefore breach the complainant’s rights.”
20. The applicant lodged a cassation appeal. He repeated his previous arguments and added that public events were regularly held at the crossroads of Lenin and Kommunisticheskaya streets.
21. On 19 July 2016 a judge of the Supreme Court of the Komi Republic refused to refer the applicant’s cassation appeal to the Presidium of that court for examination, having found no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
C. Judicial review of the decisions to block the applicant’s VKontakte account and three entries on his Internet blog
22. On 25 December 2015 the applicant challenged before the Syktyvkar Town Court the decisions of the prosecutor’s office to block his VKontakte account and three entries on his Internet blog. He argued that they had not been necessary in a democratic society and had therefore breached his right to freedom of expression. He claimed that he had suffered non-pecuniary damage.
23. On 5 April 2016 the Syktyvkar Town Court dismissed the applicant’s claim. After citing Article 10 of the Convention and section 15.3 of the Information Act (see paragraph 36 below), and noting that the town administration had refused to approve “the picket” at the location chosen by the applicant, the court held:
“Despite the lack of approval for the public event, [the applicant] described the preparations for holding it on his page on a social networking site, VKontakte, and on his blog ..., calling on an unrestricted audience to participate in an unauthorised public event ...
In the present case, access to the information published by the claimant was restricted because he had breached information distribution rules, in particular by distributing information containing calls for participation in a public event to be held in breach of the established procedure.
In such circumstances, the restriction had a basis in law and pursued the aim of preventing breaches of law in the sphere of distribution of information. Contrary to the claimant’s allegations, his freedom of expression was not restricted, because access was blocked to information distributed in breach of the law, rather than in connection with the contents of the claimant’s statements about the aims of the notified public event (to discuss the arrest of the Komi Republic government).
Restriction of access to the entire VKontakte account rather than to the specific post also had a basis in law, which in substance provides for restriction of access to an entire account, taking into consideration the nature of real-time distribution of publicly accessible content on the Internet.
In view of the above, and given that it is possible for the claimant to create and distribute new Internet posts, the claimant’s personal non-property rights were not breached. The claim must therefore be dismissed.”
24. On 7 July 2016 the Supreme Court of the Komi Republic upheld that judgment on appeal, finding that it had been lawful, well reasoned and justified.
25. On 14 December 2016 a judge of the Supreme Court of the Komi Republic refused to refer a cassation appeal lodged by the applicant with the Presidium of that court for examination. It held, in particular, that calls for participation in public events held in breach of the established procedure were incompatible with public order. The restriction on access to information containing such calls pursued the aim of preventing more serious violations of public order.
26. On 31 January 2017 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s cassation appeal for consideration by the Civil Chamber of the Supreme Court, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings.
II. RELEVANT DOMESTIC LAW
A. Procedure for the notification and conduct of public events
27. For a summary of the domestic provisions on the procedure for the notification and conduct of public events, on relevant judicial review procedures and on the liability for breaches committed in the course of public events, see Lashmankin and Others (cited above, §§ 216 - 312).
28. The applicable domestic provisions have since been interpreted by the Supreme Court as follows.
29. Plenary Supreme Court Ruling no. 28 of 26 June 2018 deals with the application of legislation governing public events during judicial examination of administrative complaints and administrative-offence cases. It provides that a refusal to approve a public event, its location or time or the manner in which it is to be conducted may be challenged before a court either by the event organiser or by a person appointed by the organiser to fulfil certain organisational tasks (point 2). When examining such administrative complaints, the courts have to examine whether the interference by a public authority with the right to freedom of public assembly was lawful, necessary and proportionate to a legitimate aim. The courts must examine all the grounds advanced by the public authority and all the evidence submitted by it and assess whether the reasons for the interference were relevant and sufficient (point 9). Furthermore, Ruling no. 28 provides that the courts must verify whether the proposal to change the location or time of a public event or the manner of conducting it was made within the three-day statutory time-limit. Failure to comply with that time-limit means that the public event must be considered to be approved by default (point 10).
30. Ruling no. 28 also provides that the courts must take into account that a proposal to change the location or time of a public event or the manner in which it is to be conducted must not be arbitrary or unreasoned. They must mention specific facts showing that public interest considerations make it manifestly impossible to hold the public event at the chosen location or time. Such public interests may include: normal functioning of essential public utilities, social and transport infrastructure and communications (such as emergency maintenance work on engineering and technical networks); maintenance of public order and safety of citizens (both those participating in the public event and passers-by, including on account of a risk of building collapse or an expected number of participants in excess of the maximum capacity of the location); disruption of pedestrians or traffic or of citizens’ access to residential premises or to social or transport facilities); and other similar considerations. At the same time, inconvenience caused to citizens by a public event or an assumption by the authorities that there might be a risk of such inconvenience may not in themselves be considered valid reasons for changing the location or time of a public event. For example, a necessity to temporarily divert pedestrians or traffic may not be considered a valid reason for changing the location or time of a public event, provided that it is possible to ensure that the traffic and the conduct of everyone involved in the event will comply with the established rules and will not lead to traffic accidents. On the other hand, disruption of pedestrians or traffic or a risk of disruption of essential public utility services may be considered valid reasons for proposing to change the location or time of a public event, provided that holding the public event will breach traffic or public transport safety requirements or limit citizens’ access to residential premises or public facilities, irrespective of measures taken by the public authority to ensure compliance with such requirements. The public authority must therefore submit to the court evidence of specific facts making it impossible to hold the public event at the chosen location or time. The courts may not take into account any circumstances which were not mentioned in the proposal to change the location or time of the public event (point 12).
31. Ruling no. 28 further provides that the courts should take into account that the public authority must suggest a specific alternative location and time for the public event compatible with its purposes and its social and political significance. If approval was denied because it was prohibited to hold public events at the chosen location, the public authority may suggest an alternative location for that event. The organiser must reply in writing, stating whether he or she accepts the proposed alternative location and/or time, no later than three days before the planned date of the event. The organiser may also propose another location or time for approval. However, if the organiser wants to change the date of the event, he must submit a new notification (point 13).
32. Ruling no. 28 also explains that public events held at private premises with unrestricted public access (such as shopping malls) must be notified to the public authority. The organiser must enclose with the notification the consent to the public event signed by the premises’ owner (points 8 and 14). It is not necessary to notify a public event planned at a specially designated location for public events, provided that the number of participants does not exceed the number permitted for each such location by regional law. The organiser must ensure the safety of participants and must therefore make enquiries about any other events planned at the same location at the same time to make sure that the maximum capacity of the location will not be exceeded. The fact that the organiser informed the public authority about the intended public event will be taken into account if he or she is held liable for failure to ensure public order and safety. The public authority may propose a change of location or time of a public event to be held at a specially designated location and not requiring notification only if another public event has been scheduled to take place at the same location and time and (i) the number of participants of the two simultaneous events will exceed the maximum capacity of the location; or (ii) it will not be possible to ensure the peaceful character of the simultaneous events by applying security arrangements habitually used at public events with a comparable number of participants, that is to say, it will be necessary to apply exceptional security measures (point 15). On the other hand, a cultural event, a fair or some other mass event not falling under the Public Events Act, scheduled to take place at the same specially designated location at the same time, may not in itself serve as lawful grounds for proposing to change the location or time of a public event. It may serve as lawful grounds for proposing to change the location or time of a public event only if information about that mass event was duly published and it will not be possible to ensure safety at the two events if they are held simultaneously (point 16).
33. Lastly, Ruling no. 28 provides that if a court allowed the administrative complaint before the planned date of the public event, it may require the public authority not to impede the public event at the location and time chosen by the organisers. If the public authority has submitted evidence showing that new grounds objectively preventing holding the public event at the chosen location or time arose after the contested decision, the court may require that the public authority re-examine the issue of the event’s location, time or the manner in which it is to be conducted within a certain time-limit (point 20).
B. Komi Republic legislation on public events
34. Section 5 of Komi Republic Law no. 91-RZ of 29 November 2012 on the Holding of Public Events in the Komi Republic provides:
“With the aim of protecting human and citizens’ rights and freedoms, legality, public order and public safety, taking into account that the holding of public events may result in disruption to the functioning of public utilities, transport, social or communications services, obstruction of pedestrians or traffic or of citizens’ access to residential buildings or transport and social services, it is prohibited in the Komi Republic to hold public events at the following locations, in addition to the locations where the holding of public events is prohibited pursuant to section 8 paragraph 2 of the Federal [Public Events] Act:
1) Stefanovskaya Square in the town of Syktyvkar;
2) Railway stations, bus stations, markets, airports, educational institutions, buildings of educational institutions, religious buildings and areas within a radius of fifty metres of the entrance to those facilities;
3) children’s playgrounds, locations designated by the municipal authorities for children’s recreation and activities, pedestrian pavements, bus stops, public parking areas;
4) buildings in a state of disrepair and areas within a radius of fifty metres of the entrance to such buildings;
5) buildings under construction, reconstruction or repair and areas within a radius of fifty metres of the entrance to such buildings;
6) buildings occupied by the regional authorities of the Komi Republic, Komi Republic branches of the federal authorities, the municipal authorities of the Komi Republic, state institutions in the Komi Republic and areas within a radius of fifty metres of the entrance to those buildings.”
35. Syktyvkar’s town administration’s decree no. 9/3483 of 4 September 2013 described the perimeter of the zone in the immediate vicinity of the Constitutional Court of the Komi Republic, where the holding of public events was prohibited. The perimeter comprised the entire Stefanovskaya Square and the adjacent streets, including the area at the crossroads of Lenin and Kommunisticheskaya streets.
C. Information Act
36. Section 15.3 of Law no. 149-FZ of 27 July 2006 on Information, Information Technologies and Protection of Information (“the Information Act”), as in force at the material time, provided:
“1. If information disseminated through telecommunication networks, including the Internet, containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure has been discovered – including as a result of a notification by the federal State authorities, the regional State authorities, the municipal authorities, organisations or citizens – the Prosecutor General of the Russian Federation or his deputies shall order the federal law‑enforcement authority supervising the mass media, mass communications and information technologies to take measures to restrict access to information media distributing that information.
2. On the basis of the order mentioned in subsection 1 above, the federal law‑enforcement authority supervising the mass media, mass communications and information technologies shall immediately:
(1) order ... the service providers to take measures to restrict access to the information medium, such as a website, or to the information published on it containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure. The order must mention the domain name of the website, the network address and the uniform resource locator (URL) of the webpage permitting identification of the information;
(2) identify the host service provider or person hosting the information medium on a telecommunication network such as the Internet or providing services to the owner of the website containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure;
(3) send to the host service provider or person mentioned in subparagraph 2 above an electronic notification in Russian and English about a breach of the information distribution rules, mentioning the domain name and the network address permitting identification of the website containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure, the URL of the webpage permitting identification of such information, and an order to delete the information;
(4) record in a special electronic register the date and time when the notification was sent to the host service provider or person mentioned in subparagraph 2 above.
3. Upon receipt of the order to take measures to restrict access from the federal law‑enforcement authority supervising the mass media, mass communications and information technologies, the communications service provider permitting access to the Internet telecommunications network must immediately restrict access to the information medium, such as a website, or to information published thereon and containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure.
4. Within twenty-four hours of receiving the notification mentioned in subsection 2(3) above, the host service provider or person mentioned in subsection 2(2) above must inform the owner of the information resource about the notification and that it is necessary to immediately delete the information containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure.
5. If the owner of the information medium has deleted the information containing calls for mass disorder, extremist activities or participation in mass (public) events held in breach of the established procedure, he must send a notification to the federal law-enforcement authority supervising the mass media, mass communications and information technologies. Such notification may be sent electronically.
6. Upon receipt of the notification mentioned in subsection 5 above, and after verifying its authenticity, the federal law-enforcement authority supervising the mass media, mass communications and information technologies must immediately send a notification to the communications service provider permitting access to the Internet telecommunications network that it may reopen access to the information medium, such as a website.
7. Upon receipt of the notification mentioned in subsection 6 above, the communications service provider shall immediately reopen access to the information medium, such as a website.”
D. Administrative proceedings
37. The Code of Administrative Procedure (Law no. 21-FZ of 8 March 2015), which entered into force on 15 September 2015, provides that complaints about decisions, acts or omissions of State and municipal authorities and officials are to be examined within a month of receipt, or within two months by the Supreme Court, if not otherwise provided for by this Code for certain categories of cases (Article 226 § 1).
THE LAW
I. JOINDER OF THE APPLICATIONS
38. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
39. The applicant complained about the restrictions imposed by the authorities on the location of his public event. He relied on Articles 10 and 11 of the Convention. The Court will examine the complaint under Article 11, interpreted where appropriate in the light of Article 10 (see Lashmankin and Others v. Russia, cited above, §§ 363-65). Article 11 reads as follows:
“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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
A. Admissibility
40. The Court observes that the Government did not raise the issue of the applicant’s compliance with the six-month rule. It has previously found that the application of that rule should not be set aside solely because the Government have not made a preliminary objection based on it (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑III, and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I). The Court therefore considers it appropriate to address this issue in the present case.
41. In its judgment in the case of Alekseyev v. Russia (nos. 4916/07 and 2 others, § 99, 21 October 2010) the Court found that Russian law, as in force at the material time, did not provide for a preventive remedy, and it found a violation of Article 13 on that ground. Subsequently, in the case of Lashmankin and Others (cited above, §§ 356-60) concerning the events between 2009 and 2012, the Court found that the judicial remedy under former Chapter 25 of the Code of Civil Procedure (“the CCP”) and the Judicial Review Act available to the applicants at the material time – in addition to its inability to allow an enforceable judicial decision to be obtained on the authorities’ refusal to approve the location, time or manner of conduct of a public event before its planned date – had insufficient scope of review. Any review was limited to examining the lawfulness of the authorities’ proposal to change the location or time of a public event or the manner in which it was to be conducted, and included no assessment of its “necessity” or “proportionality”. That finding may be interpreted as meaning that the judicial remedy under former Chapter 25 of the CCP and the Judicial Review Act was ineffective both to prevent the alleged violation and to provide adequate redress for a violation that had already occurred.
42. However, the present case concerns facts that occurred after 15 September 2015, the date on which the new CAP entered into force. Given that the CAP introduced substantial changes to the applicable judicial review procedures, and that it has not yet assessed the effectiveness of the judicial review procedure under the CAP, the Court considers that it was not unreasonable for the applicant to attempt to use that remedy in order to give the domestic courts an opportunity to put matters right through the national legal system, thereby respecting the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see, for similar reasoning, Zubkov and Others v. Russia, nos. 29431/05 and 2 others, § 106, 7 November 2017).
43. The Court notes that the applicant lodged a judicial review complaint against the town administration’s refusal to approve the location of his “picket” after its planned date. He therefore chose not to avail himself of a possibility provided by the domestic law to have his complaint examined before the planned date of the event, namely to use the judicial review procedure under the CAP as a preventive remedy. He preferred to use that procedure to seek acknowledgment and/or, in combination with a subsequent civil claim, redress for the alleged violation of his right to freedom of assembly that had already occurred.
44. The Court accordingly finds that, by lodging his application within six months of the final judgment in the judicial review proceedings, the applicant has complied with the six-month rule.
45. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
46. The applicant submitted that Stefanovskaya Square was the main square in the town of Syktyvkar, where historically many public events had been held. It was large and closed to traffic, and was therefore perfectly suitable for public events. In 2011 the Constitutional Court of the Komi Republic had moved to the seventh floor of a building on that square; thereafter, the town administration had prohibited the holding of public events in Stefanovskaya Square altogether (see paragraphs 34 and 35 above). Referring to the Constitutional Court’s decision of 17 July 2007 (for a summary of the domestic law provisions, see Lashmankin and Others, cited above, § 254), the applicant argued that the perimeter of the zone in the vicinity of the Constitutional Court of the Komi Republic was to be determined on the basis of the land or urban planning register and had to be objectively justified by the aim of ensuring the normal functioning of that court. The Syktyvkar Town Administration’s decree determining the perimeter of the zone in the vicinity of the Constitutional Court of the Komi Republic (see paragraph 35 above) did not meet those criteria, in particular because it provided for a zone covering a total area of about 51,800 sq. m comprising several plots and parts of plots of land registered separately in the urban planning register. Such a large perimeter was not necessary to ensure the normal functioning of that court, which occupied several offices on the seventh floor of an office building. Nor was it necessary to prohibit the holding of public events in the vicinity of the court during periods when it was not in session, as well as on weekends and public holidays. The applicant submitted a list of twenty festive public events held in Stefanovskaya Square in 2016, showing that the prohibition was not always complied with.
47. The applicant further submitted that the location chosen by him had been near, rather than within, Stefanovskaya Square; the prohibition established by section 5 of Komi Republic Law no. 91-RZ (see paragraph 34 above), on which the town administration had relied, had not therefore been applicable. Indeed, the domestic courts had relied on the town administration’s decree no. 9/3483 (see paragraph 35 above), rather than on that provision. That decree, however, was defective for the reasons described in paragraph 46 above. The location chosen by the applicant had been 160 m away from the perimeter of the zone in the vicinity of the Constitutional Court of the Komi Republic, as it should have been determined pursuant to the Constitutional Court’s ruling of 17 July 2007. Lastly, the specially designated locations for holding public events proposed by the town administration as an alternative to the location chosen by the applicant had been remote and desolate, and therefore unsuitable.
48. The Government submitted that the interference with the applicant’s rights had been lawful, had pursued a legitimate aim and had been proportionate to that aim. The domestic legal provisions governing the notification and conduct of public events struck a fair balance between the interests of the organisers of and participants in such events on the one hand, and, on the other hand, of all others – in particular, by providing for adequate measures to prevent and punish infringements of public order and public safety.
49. The Government further submitted that the Public Events Act set out a list of locations where the holding of public events was prohibited (for a summary of the domestic law provisions, see Lashmankin and Others, cited above, § 223). That prohibition was justified by the special legal regime pertaining to those locations and the need to ensure their security. In particular, referring to a decision of 29 May 2007 by the Constitutional Court (for a summary of the domestic law provisions, see Lashmankin and Others, cited above, § 253), the Government argued that the aim of the prohibition on holding public events in the vicinity of court buildings was to protect the independence of the judiciary and to prevent pressure being put on judges. The restriction was therefore justified, and did not breach citizens’ constitutional rights. The perimeter of the zone in the vicinity of the Constitutional Court of the Komi Republic had been determined by Syktyvkar town administration’s decree no. 9/3483 of 4 September 2013 (see paragraph 35 above); the location chosen by the applicant had been within that perimeter. The domestic authorities had therefore proposed that he change the location of his event to one of the specially designated locations for holding public events. The applicant had not discharged the burden of proof to show that those locations had been unsuitable for his purposes: they had been within the town of Syktyvkar, open to the public and large enough to accommodate high numbers of participants. The Government pointed out that public events had been regularly held at the specially designated locations in Syktyvkar. They produced copies of ninety-one notifications of public events lodged by the followers of the Vedic culture, as well as a dozen notifications lodged by other associations, to be held in the specially designated locations. The applicant had himself held a public event there in July 2016 after the town administration had proposed one of the specially designated locations for a meeting planned by him.
2. The Court’s assessment
50. It has not been disputed between the parties that the proposal to change the location of the applicant’s public event amounted to an interference with his right to freedom of peaceful assembly (see Lashmankin and Others, cited above, §§ 404-09). It remains to be ascertained whether the interference was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 of Article 11, and was “necessary in a democratic society” for the achievement of the aim or aims in question (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 102, ECHR 2015).
51. The Court notes that the domestic authorities relied on two legal provisions prohibiting public events at the location chosen by the applicant: while the town administration relied on a regional law prohibiting public events in Stefanovskaya Square in Syktyvkar (see paragraphs 9 and 34 above), the domestic courts referred to the town administration’s decree delimiting the perimeter of the zone in the immediate vicinity of the Constitutional Court of the Komi Republic (see paragraphs 17 and 35 above), where the holding of public events was prohibited by section 8 of the Public Events Act (see, for a summary of the domestic law, Lashmankin and Others, cited above, §§ 223-25).
52. As regards the domestic courts’ finding that the location chosen by the applicant had been in the immediate vicinity of the Constitutional Court of the Komi Republic, the Court has already found that the general ban under section 8 of the Public Events Act on holding public events in the vicinity of court buildings is incompatible with Article 11 § 2, taking into account its absolute nature coupled with the local executive authorities’ wide discretion in determining what is considered to be “in the immediate vicinity” (see Lashmankin and Others, cited above, §§ 431-42). The Court does not see any reason to reach a different conclusion in the present case. The refusal to approve the location chosen by the applicant for his public event by reference to the fact that it was to be held in the vicinity of the Constitutional Court of the Komi Republic could not, therefore, be regarded as being “necessary in a democratic society” within the meaning of Article 11 § 2 of the Convention.
53. As regards the town administration’s reference to a regional law prohibiting public events in Stefanovskaya Square, the main square in Syktyvkar, the Court notes that since 2012 the Public Events Act allows the regional legislatures to designate other locations – in addition to the locations mentioned in section 8 of the Public Events Act – where public events are prohibited if they might interfere with the normal functioning of public utility services, transport, social or communications services, or hinder the passage of pedestrians or vehicles or the access of citizens to residential buildings, transport or social facilities (see, for a summary of the domestic law provisions, Lashmankin and Others, cited above, § 247). The Court has already found that those reasons, although relevant, are not in themselves sufficient to justify a proposal to change the location of a public event (see Lashmankin and Others, cited above, §§ 421 and 423). This finding applies a fortiori to a general ban on holding public events at a certain location by reference to those reasons.
54. The Court reiterates in this connection that a State can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case, even if this might result in individual hard cases (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 106, ECHR 2013 (extracts)). However, a general ban on demonstrations can only be justified if there is a real danger of their resulting in disorder which cannot be prevented by other less stringent measures. In this connection, the authority must take into account the effect of a ban on demonstrations which do not by themselves constitute a danger to public order. Only if the disadvantage of such demonstrations being caught by the ban is clearly outweighed by the security considerations justifying the issue of the ban, and if there is no possibility of avoiding such undesirable side effects of the ban by a narrow circumscription of its scope in terms of territorial application and duration, can the ban be regarded as being necessary within the meaning of Article 11 § 2 of the Convention (see Christians against Racism and Fascism v. the United Kingdom, no. 8440/78, Commission decision of 16 July 1980).
55. No arguments regarding risk of public disorder or security considerations have ever been advanced to justify the general ban on holding public events in Stefanovskaya Square. Indeed, the regional law establishing that ban simply paraphrased the Public Events Act – stating that the holding of public events there might result in disruptions in the functioning of public utilities, transport, social or communications services and the obstruction of pedestrians or traffic or the hindering of citizens’ access to residential buildings or transport and social services. It is significant that neither the regional law itself, nor any other legal provision or judicial interpretation explained which of the above circumstances were relevant to Stefanovskaya Square and why. In any event, the Court has already found that such reasons were not in themselves sufficient to justify a general ban on holding public events at a certain location (see paragraph 53 above).
56. Nor has any explanation been given as to why a general ban was a more feasible means of achieving the aim of preventing serious disruptions of people’s ordinary life than a provision allowing a case-by-case examination, taking account of the possibility of minimising such disruption, for example by organising a temporary diversion of traffic on alternative routes or by taking other similar measures, and at the same time accommodating the organisers’ legitimate interests in assembling at their chosen location. Furthermore, it was never argued that the general ban could not be relaxed without a risk of abuse, significant uncertainty, discrimination or arbitrariness. Lastly, the general ban is not limited in time and applies to all public events, irrespective of the number of participants and the event’s potential to cause disruptions of people’s ordinary life. The general ban at issue is therefore not specifically circumscribed to address a precise risk of serious disruption with a minimum impairment of the right to freedom of assembly. It has not therefore been shown that the general ban on holding public events in Stefanovskaya Square has been the subject of an exacting parliamentary and judicial review (compare Animal Defenders International, cited above, §§ 108 and 114-17).
57. It follows that the Government have not adduced relevant and sufficient reasons to justify the general ban on holding public events in Stefanovskaya Square in Syktyvkar.
58. In view of the above, the Court considers that the refusal to approve the location of the applicant’s public event by reference to the general ban on holding public events in the vicinity of court buildings or by reference to the ban, established by a regional law, on holding public events in Stefanovskaya Square in Syktyvkar, without any consideration to the specific circumstances of the case, could not therefore be regarded as being “necessary in a democratic society” within the meaning of Article 11 § 2 of the Convention.
59. There has therefore been a violation of Article 11 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 11
60. The applicant complained under Article 13 in conjunction with Article 11 of the Convention that he had not had an effective remedy against the alleged violation of his freedom of assembly. Article 13 of the Convention reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Admissibility
61. 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.
B. Merits
1. Submissions by the parties
62. The applicant submitted that the domestic courts had failed to protect his right to freedom of assembly. The Russian courts were not required by law to examine the issues of “proportionality” and “necessity in a democratic society” when examining on judicial review a complaint about a refusal to approve the location of a public event. The Government had not cited any cases of successful judicial review.
63. The Government submitted that the applicant had challenged the refusal to approve the location of his public event before the domestic courts, which had carefully examined his complaint. He had participated in the hearings and had appealed to a higher court. The appellate court had re‑examined the case in its entirety without being bound by the arguments raised in the appeal submissions. The applicant had also lodged cassation appeals. He had therefore had an effective remedy at his disposal.
2. The Court’s assessment
64. The Court reiterates that Article 13 guarantees the availability at national level of a remedy in respect of grievances which can be regarded as arguable in terms of the Convention (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 96, ECHR 2000 XI). The Court has found that the applicant’s right to freedom of assembly was violated. There was therefore an arguable claim under Article 11 of the Convention.
65. The Court reiterates that the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. At the same time, the remedy required by Article 13 must be “effective” in practice as well as in law, in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, §§ 157 and 158, ECHR 2000 XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 96, 10 January 2012).
66. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. In the area of complaints about restrictions on the freedom of assembly imposed before the date of an intended assembly – such as, for example, a refusal of prior authorisation or approval where they are required – the Court has already observed that the notion of an effective remedy implies the possibility of obtaining an enforceable decision concerning such restrictions before the time at which the assembly is intended to take place (see Lashmankin and Others, cited above, §§ 344-45).
67. In the recent case of Lashmankin and Others (cited above, §§ 342‑61) the Court found that the applicants had not had at their disposal an effective remedy to challenge refusals to approve the location or time of their public event or the manner in which it was to be conducted. The judicial review remedy under former Chapter 25 of the CCP and the Judicial Review Act available at the material time suffered from two defects which rendered it ineffective under Article 13. Firstly, it did not allow an enforceable judicial decision to be obtained on the authorities’ refusal to approve an event’s location, time or manner of conduct before its planned date. Secondly, its scope was limited to examining the lawfulness of the proposal to change the event’s location, time or manner of conduct, and did not include any assessment of its “necessity in a democratic society” and “proportionality”.
68. The Court notes that, since the facts prompting the applications joined in Lashmankin and Others arose, a new Code of Administrative Procedure (“the CAP”) reforming the applicable judicial review procedures entered into force on 15 September 2015. It provides, in particular, that complaints against the authorities’ decisions concerning changes to a public event’s purposes, location, type or the manner of conducting it are to be examined by a district court, and if possible any appeal is also to be examined, before the planned date of the event. If the court allows the complaint, it requires the authority or official to remedy the breach of the complainant’s rights – in particular by determining the specific steps which need to be taken – and sets out a time‑limit. The judicial decision is subject to immediate enforcement (see a summary of the domestic law provisions in Lashmankin and Others, cited above, §§ 289-94 and 297). The Court considers that those developments in the domestic law have corrected the first defect identified in Alekseyev (cited above) and Lashmankin and Others, by henceforth allowing an enforceable judicial decision to be obtained on the authorities’ refusal to approve a public event’s location, time or the manner in which it is to be conducted before its planned date.
69. As regards the second defect, the Court notes that the CAP reproduces in substance the legal provisions on the scope of judicial review examined and found deficient in Lashmankin and Others. The CAP provides that the lawfulness of the contested decision or act – understood in the sense of compliance with the rules of competence, procedure and contents – remains the sole relevant issue examined on judicial review (see a summary of the domestic law provisions in Lashmankin and Others, cited above, §§ 295-96). It follows that the second defect identified in Lashmankin and Others has not been corrected by the CAP. Indeed, in the present case the domestic courts did not strike a fair balance between private and public interests, holding that the applicant had no right to choose the location of a public event and that the proposal to change the location had not therefore restricted his right to freedom of assembly. That finding is in clear contradiction with the standards established by the Court under Article 11 (see Lashmankin and Others, cited above, §§ 405-08).
70. The Court takes note of the Supreme Court’s Ruling of 26 June 2018, instructing the domestic courts that when examining under the CAP complaints against the authorities’ decisions concerning changes to a public event’s purposes, location, type or the manner in which it was to be conducted, they had to assess whether the interference by a public authority with the right to freedom of public assembly had been lawful, necessary and proportionate to a legitimate aim, and in particular whether the reasons for the interference advanced by the public authority had been relevant and sufficient (see paragraph 29 above). The Court welcomes these instructions, but notes that they were issued after the events at issue in the present cases. It will have to wait for an opportunity to examine the practice of the Russian courts after that Ruling to assess how these instructions are be applied in practice.
71. The Court concludes from the above that the domestic law as in force between 15 September 2015 and 26 June 2018 did not provide for an effective remedy because the scope of review of the only available remedy was limited to examining the lawfulness of the proposal to change the location, time or manner of conduct of a public event, and did not include any assessment of its “necessity” and “proportionality”.
72. There has accordingly been a violation of Article 13 in the present case.
IV. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
73. The applicant complained that the blocking of his social networking account and of three entries on his blog calling for participation in an unauthorised public event had breached his right to freedom of expression. He relied on Article 10 of the Convention, which reads 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
A. Admissibility
74. 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.
B. Merits
1. Submissions by the parties
75. The applicant submitted that he had used his VKontakte account and his blog to express his opinions on matters of public interest. In particular, in the blog entries and the VKontakte post in question he had expressed his opinion about the arrest of the government of the Komi Republic and about the obstacles to a collective discussion of that issue. The blocking of those posts had therefore restricted his freedom of expression.
76. The applicant further submitted that section 15.3 of the Information Act, which had served as a legal basis for the restriction, had not been foreseeable in its application. It particular, it had not been clear what had been meant by public events “held in breach of the established procedure”. Nor had that provision provided for sufficient guarantees against abuse because it had not required the domestic authorities to give detailed reasons for their finding that the public event which had been the subject of his calls for participation would be held in breach of the established procedure. Furthermore, the decision to block his posts had been taken by the law‑enforcement authorities without prior judicial authorisation. Lastly, the domestic law permitted the blocking of the entire social networking account even if only one post published thereon had been considered to be unlawful, whereas it was technically possible to block a specific post without blocking the entire account.
77. The applicant also complained that the interference with his right to freedom of expression had not pursued any legitimate aim and had not been necessary in a democratic society. He argued that it was important for the public authorities to show a certain degree of tolerance towards unlawful peaceful gatherings (he referred to Nurettin Aldemir and Others v. Turkey, nos. 32124/02 and 6 others, 18 December 2007). Consequently, it was also important to show the same degree of tolerance towards articles published on the Internet about preparations for such peaceful gatherings. The Russian authorities had shown zero tolerance in his own case, however. Furthermore, by blocking access to his VKontakte account, they had blocked access to other material published thereon which had not been found to be illegal. The judicial review of the blocking decision had been superficial: the domestic courts had not applied the “proportionality” or the “necessity in a democratic society” tests.
78. The Government submitted that the town administration had refused to approve the public event planned by the applicant; he had not therefore been entitled to hold it. Despite that, he had described the preparations for holding the event in question and had called for participation in it on his VKontakte page and on his blog. By calling for participation in a public event to be held in breach of the established procedure, the applicant had breached information distribution rules. The blocking of his VKontakte account and of the entries in question on his blog had therefore been lawful and had pursued the aim of preventing breaches of information distribution rules. The Government stressed that access to the above-mentioned posts had been blocked because they had contained calls for participation in an unauthorised public event rather than because of the applicant’s statements about the aims of that public event. Furthermore, as stated by the domestic courts, restriction of access to the entire VKontakte account rather than to the specific post had also had a basis in domestic law and had been justified by the real-time distribution of publicly accessible content on the Internet. The account could have been unblocked if the applicant had deleted the unlawful content. He could also have created a new social networking account. The applicant’s freedom of expression had not therefore been restricted by the contested measures.
2. The Court’s assessment
(a) General principles
79. The Court has consistently held that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self‑fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 101, ECHR 2012; and Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016).
80. The Court further reiterates that Article 10 guarantees freedom of expression to “everyone”. It makes no distinction according to the nature of the aim pursued or the role played by natural or legal persons in the exercise of that freedom (see Çetin and Others v. Turkey, nos. 40153/98 and 40160/98, § 57, ECHR 2003‑III (extracts). It applies not only to the content of information but also to the means of dissemination, since any restriction imposed on the latter necessarily interferes with the right to receive and impart information (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 50, ECHR 2012).
81. As to the importance of the Internet in the exercise of freedom of expression, the Court reiterates that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general (see Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009). User-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression (see Delfi AS v. Estonia [GC], no. 64569/09, § 110, ECHR 2015).
82. As enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly. The adjective “necessary”, within the meaning of Article 10 paragraph 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 187, 8 November 2016).
83. The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts); Morice v. France [GC], no. 29369/10, § 124, ECHR 2015; and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no 17224/11, § 75, ECHR 2017).
(b) Application to the present case
84. The Court finds that the blocking by a deputy Prosecutor General of the applicant’s social networking account and of three entries on his blog on the grounds that they contained calls to participate in a public event the location of which had not been approved by the town administration amounted to “interference by a public authority” with the applicant’s right to freedom of expression, of which the freedom to receive and impart information and ideas is an integral part (compare Ahmet Yıldırım, cited above, § 55). That the applicant could create a new social networking account or publish new entries on his blog has no incidence on this finding.
85. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in Article 10 § 2 and is “necessary in a democratic society” to achieve those aims. The Court considers that in the present case the questions of compliance with the law and of the existence of a legitimate aim cannot be dissociated from the question of whether the interference was “necessary in a democratic society” (see, for similar reasoning, Nemtsov v. Russia, no. 1774/11, § 75, 31 July 2014). The Court will therefore examine them together below.
86. The Court observes at the outset that the contested measure had a basis in section 15.3 of the Information Act (see paragraph 36 above), which allowed the Prosecutor General or his deputies to order the blocking of a website or webpage containing calls for, among other things, participation in public events held in breach of the established procedure.
87. According to the domestic courts, the purpose of the blocking measure was to prevent breaches of law in the sphere of distribution of information (see paragraph 23 above) and also to prevent violations of public order (see paragraph 25 above). As regards the second aim, the Court reiterates that exceptions to freedoms of association and assembly must be narrowly interpreted, such that the enumeration of them is strictly exhaustive and the definition of them necessarily restrictive (see Sidiropoulos and Others v. Greece, 10 July 1998, §§ 38 and 39, Reports of Judgments and Decisions 1998‑IV, and Svyato-Mykhaylivska Parafiya v. Ukraine, no. 77703/01, § 132, 14 June 2007). It notes that, unlike some other Articles of the Convention, neither Article 10 nor Article 11 allows for restrictions aimed at maintenance, or protection, of public order (see Perinçek v. Switzerland [GC], no. 27510/08, §§ 146-51, ECHR 2015 (extracts)). Indeed, the Government did not rely on that aim.
88. As regards the Government’s argument that the aim of the measure was to prevent breaches of law in the sphere of distribution of information, they did not explain which of the legitimate aims listed in the second paragraph of Article 10 that corresponded to. It has never been claimed that the public event advertised by the applicant in his blog and his social networking account presented a risk to public safety or was capable of leading to public disorder or crime. The aims of the protection of public safety and prevention of disorder or crime are therefore clearly not relevant to the present case. The aim of preventing disclosure of information received in confidence is not relevant either. It therefore appears that the only aim of the blocking measure was to enforce the rules governing public events and, in particular, the circulation of information about them. The Court has already found that enforcement of rules governing public assemblies cannot become an end in itself (see Primov and Others v. Russia, no. 17391/06, § 118, 12 June 2014, and Lashmankin and Others, cited above, § 449). No other aim was advanced either by the Government or by the domestic courts in the present case.
89. The Court takes note, however, of the Constitutional Court’s explanation that the purpose of the rules governing public events, and in particular the notification and approval procedure, is to allow the authorities to take all necessary measures to ensure the safety of both those attending the public event and others (see, for a summary of the Constitutional Court’s ruling, Lashmankin and Others, cited above, § 273). In its turn, the prohibition on campaigning for participation before the public event has been approved by the competent authorities aims at ensuring that citizens are not misled by calls to participate in a public event the location and time of which have not yet been finally determined (see, for a summary of the Constitutional Court’s ruling, Lashmankin and Others, cited above, § 267). Given that both the notification procedure for public events and the prohibition on campaigning for participation before that procedure has been successfully completed apparently aim at protecting the rights of others, the Court will assume that the blocking of publications which call for participation in a public event in breach of those procedures and rules also pursues the legitimate aim of protecting the rights of others.
90. The Court further notes that in the present case the blocking measure was taken before a judicial decision was issued on the illegality of the published content. It therefore amounted to a prior restraint (see, for a similar reasoning, Ahmet Yıldırım, cited above, § 46).
91. The Court reiterates in this connection that Article 10 does not prohibit prior restraints on publication as such. However, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court and are justified only in exceptional circumstances (see Association Ekin v. France, no. 39288/98, § 56, ECHR 2001‑VIII; Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 118, ECHR 2004‑XI; and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 93, ECHR 2009). This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest. This danger however also applies to publications other than periodicals that deal with a topical issue (see Association Ekin, ibid., and Ahmet Yıldırım, cited above, § 47).
92. In cases of prior restraint, a legal framework is required, ensuring both tight control over the scope of bans and effective judicial review to prevent any abuse of power. In that regard, the judicial review of such a measure, based on a weighing-up of the competing interests at stake and designed to strike a balance between them, is inconceivable without a framework establishing precise and specific rules regarding the application of preventive restrictions on freedom of expression (see, inter alia, Ahmet Yıldırım, cited above, § 64, with further references).
93. In this connection the Court takes note of the applicant’s argument that the term “public events held in breach of the established procedure” in section 15.3 of the Information Act is too broad and vague. Indeed, in the absence of any authoritative interpretation of that term by the Supreme or Constitutional Courts, and taking into account that the Government have not submitted any examples of its restrictive interpretation and application in administrative and judicial practice, it appears that any breach of the procedure for the conduct of public events, no matter how small or innocuous, may serve as a ground for the Prosecutor General’s decision to block access to Internet posts containing calls to participate in that event. Access to such posts can therefore be blocked by a prosecutor, as in the present case, for the sole reason that it calls for participation in a public event at a location that has not been approved by the authorities, without having to establish a risk of disorder or of any real nuisance to the rights of others.
94. The Court further notes that the Prosecutor General and his deputies may order the blocking of an entire website or webpage – for example an entire social networking account, as in the present case – on the grounds that it contains some illegal material. Section 15.3 of the Information Act does not require them to examine whether the wholesale blocking of the entire website or webpage, rather than of a specific information item published on it, is necessary, having regard to the criteria established and applied by the Court under Article 10 of the Convention. Such an obligation, however, flows directly from the Convention and from the case-law of the Convention institutions. In particular, Article 10 requires the authorities to take into consideration, among other aspects, the fact that such a measure, by rendering large quantities of information inaccessible, is bound to substantially restrict the rights of Internet users and to have a significant collateral effect on the material that has not been found to be illegal (see Ahmet Yıldırım, cited above, § 66, and Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, § 64, ECHR 2015 (extracts)). There is no evidence in the domestic decisions in the present case that those factors were taken into consideration when the applicant’s entire VKontakte account was blocked on the grounds that it contained one illegal information item.
95. It follows that the applicable legal framework affords the Prosecutor General and his deputies very wide powers to apply prior restraint measures to Internet posts containing calls to participate in public events, both as regards the grounds for ordering the blocking measure and as regards its scope.
96. The Court notes that the exercise of the Prosecutor General’s powers to block Internet posts containing calls to participate in public events is subject to judicial review. However, the breadth of the executive’s discretion is such that it is likely to be difficult, if not impossible, to challenge the blocking measure on judicial review (see, for similar reasoning, Gillan and Quinton v. the United Kingdom, no. 4158/05, §§ 80 and 86, ECHR 2010 (extracts); Lashmankin and Others, cited above, § 428; and Ivashchenko v. Russia, no. 61064/10, § 88, 13 February 2018). Moreover, as a result of the one-month time-limit for the examination of the judicial review complaints (see paragraph 37 above) – combined with the statutory prohibition on campaigning for participation in a public event before it is approved by the regional or municipal authorities (see Lashmankin and Others, cited above, § 249) and the tight time-frame of the notification and approval procedure (ibid., § 348) – there is no guarantee that the complaint against the blocking measure would be decided before the planned date of the event. The Court is of the opinion that in cases concerning prior restraints on publications calling for participation in a public event, there must be a possibility to obtain a judicial review of the blocking measure before the date of the public event in question. Indeed, the information contained in the post is deprived of any value and interest after that date, and the annulment of the blocking measure on judicial review at that stage will therefore be meaningless (see paragraph 91 above, and, mutatis mutandis, Bączkowski and Others v. Poland, no. 1543/06, §§ 81 and 82, 3 May 2007).
97. It follows from the above that the blocking procedure provided for by section 15.3 of the Information Act lacks the necessary guarantees against abuse required by the Court’s case-law for prior restraint measures (see paragraph 92 above), in particular tight control over the scope of bans and effective judicial review to prevent any abuse of power.
98. Turning now to the content of the Internet posts at issue, the Court notes that only two of the four posts contained calls to participate in the public event planned by him. The Court is unable to discern any such calls in the first and second posts. The domestic authorities did not explain why they were included in the blocking measure together with the other posts which contained such calls.
99. In the first entry on his blog the applicant commented on the recent arrest of the regional government, criticised the appointment of regional governors by the President and expressed the wish that governors be elected by the people. He also informed his readers that he had lodged a notification for a “picket” during which a debate on those issues would be held (see paragraph 8 above). The issues raised in that entry were of paramount importance for the regional community. That was a matter of public concern and the applicant’s comments contributed to an ongoing political debate.
100. In the second entry on his blog the applicant informed his readers that the local authorities had refused to approve the location of the “picket” planned by him and that a “people’s assembly” would be held instead at the same location and time (see paragraph 10 above). The Court considers that by informing prospective participants that the public event had not been duly approved, the applicant was disseminating information on a matter of public interest.
101. The Court reiterates in this connection that under its case-law, expression on matters of public interest is entitled to strong protection (see Perinçek, cited above, § 230). There is therefore little scope under Article 10 § 2 of the Convention for restrictions on political speech or on expression on matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999‑IV) and very strong reasons are required for justifying such restrictions (see Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001‑VIII, and Sergey Kuznetsov v. Russia, no. 10877/04, § 47, 23 October 2008, with further references). The domestic authorities did not advance any reasons for blocking access to the two above-mentioned posts and did not explain why they had been included in the blocking measure, even though they did not contain any calls for participation in a public event held in breach of the established procedure.
102. As regards the third entry on the blog and the post on the social networking site, they contained explicit calls to participate in the public event which the local authorities had earlier refused to approve (see paragraphs 11 and 13 above). The Court reiterates in this connection that it is important for the public authorities to show a certain degree of tolerance towards peaceful unlawful gatherings (see Kudrevičius and Others, cited above, § 150, and Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 143, 15 November 2018).
103. The Court further reiterates that it is normally not sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms; what is rather required is that it was necessary in the specific circumstances (see Perinçek, cited above, § 275, and The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65 in fine, Series A no. 30). In the context of public assemblies, this means that the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11 (see Kudrevičius and Others, cited above, § 151). It follows that the fact that the applicant breached a statutory prohibition by calling for participation in a public event held in breach of the established procedure is not sufficient in itself to justify an interference with his freedom of expression. The Court must examine whether it was necessary in a democratic society to block the publications at issue, having regard to the facts and circumstances of the case.
104. The Court observes, firstly, that the aim of the public event was to express an opinion on a topical issue of public interest, namely the recent arrest of the regional government officials (see paragraph 6 above). Secondly, the approval of the public event had been refused on formal grounds – because of a general ban on holding public events at the location chosen by the applicant, which the Court has found to be contrary to the Convention (see paragraph 59 above) – rather than on the grounds that the event in question presented a risk of public disorder or crime or a risk to public safety or the rights of others. Thirdly, the impugned Internet posts did not contain any calls to commit violent, disorderly or otherwise unlawful acts during the public event. Fourthly, only about fifty people were expected to attend the public event (see paragraph 7 above) and, as asserted by the applicant and not contested by the Government, the chosen location was closed to traffic (see paragraph 46 above). In view of the event’s location, small size and peaceful character, there is no reason to believe that it would have been necessary for the authorities to intervene to guarantee its smooth conduct and the safety of the participants and passers-by, for example by diverting traffic. Lastly, as noted above, the applicant explicitly and clearly stated on his blog that the public event had not been duly approved. He did not therefore try to mislead prospective participants by making them believe that they were going to participate in a lawful event.
105. It follows that the breach of the procedure for the conduct of public events in the present case was minor and did not create any real risk of public disorder or crime. Nor did it have a potential to lead to harmful consequences for public safety or the rights of others. In such circumstances the Court is not convinced that there was “a pressing social need” to apply prior restraint measures and to block access to the impugned Internet posts calling for participation in that event and thereby expressing an opinion on an important matter of public interest.
106. Having regard to the above considerations and its case-law on the subject, the Court finds that the domestic law lacks the necessary guarantees against abuse required by the Court’s case-law for prior restraint measures. It also finds that the standards applied by the domestic courts were not in conformity with the principles embodied in Article 10 and that the courts did not provide “relevant and sufficient” reasons for the interference with the applicant’s right to freedom of expression.
107. There has therefore been a violation of Article 10 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
108. 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.”
A. Damage
109. The applicant claimed 16,000 euros (EUR) in respect of non‑pecuniary damage.
110. The Government submitted that the applicant had not produced any documents in support of his claim. The claim was in any event excessive.
111. The Court awards the applicant EUR 12,500 in respect of non‑pecuniary damage.
B. Costs and expenses
112. Relying on a legal fee agreement, the applicant also claimed EUR 2,500 for legal fees incurred before the domestic courts and the Court.
113. The Government submitted that there was no evidence that the legal fee had actually been paid.
114. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads.
C. Default interest
115. 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. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 11 of the Convention;
4. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 11;
5. Holds that there has been a violation of Article 10 of the Convention;
6. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
7. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 30 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsVincent A. De Gaetano
RegistrarPresident
[1]. VKontakte is a Russian online social media and social networking service similar to Facebook.
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