CASE OF MANDRIGELYA v. RUSSIA

THIRD SECTION

CASE OF MANDRIGELYA v. RUSSIA

(Application no. 34310/13)

JUDGMENT
 

STRASBOURG

23 June 2020

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

In the case of Mandrigelya v. Russia,

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

Helen Keller, President,
María Elósegui,
Ana Maria Guerra Martins, judges,
and Olga Chernishova, Deputy Section Registrar,

Having deliberated in private on 2 June 2020,

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

PROCEDURE

1.  The case originated in an application (no. 34310/13) 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 Aleksey Nikolayevich Mandrigelya (“the applicant”), on 8 May 2013.

2.  The applicant was represented by Ms Marina Alekseyevna Dubrovina, a lawyer practising in Novorossiysk. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3.  On 30 June 2017 the Government were given notice of the issues under Articles 10 and 11 of the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4.  The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1989 and lives in Krasnodar.

6.  The applicant, a member of an environmental NGO, was a candidate for an opposition party in the regional legislative election of 14 October 2012.

7.  According to the applicant, because he was dissatisfied with the large‑scale fraud alleged to have been committed during the election, on 16 October 2012 he staged a solo demonstration at the central square in Krasnodar; he lit a candle and held a funeral wreath, thus expressing his sorrow about the election.

8.  Several police officers approached the applicant and, allegedly using physical force, took him to a police station. The applicant was allowed to leave the station as soon as he informed the police that he still had election candidate status and thus, under Russian law, could not be subject to an ordinary escort or arrest procedure.

9.  By a judgment of 6 November 2012 a justice of the peace convicted the applicant under Article 19.3 of the Code of Administrative Offences (“the CAO”) (non-compliance with a lawful order of a law-enforcement officer) and sentenced him to fifteen days’ detention. The relevant part of the judgment reads as follows:

“[The defendant] disobeyed police officers, behaved in an aggressive manner, refused to go to the police station for an administrative-offence record to be drawn up; he did not react to the order to stop, thereby disobeying lawful orders on the part of police officers ...

The defendant pleaded not guilty. His guilt is confirmed by the administrative‑offence record and reports by the police officers.”

10.  The applicant appealed, arguing that the trial judgment had not specified which specific orders or actions the applicant had disobeyed; in particular, it had not been specified in the trial judgment what the applicant had been ordered to stop; the trial judgment contained no reasoning as to the legality of those orders or actions.

11.  On 9 November 2012 the Leninskiy District Court of Krasnodar upheld the judgment, stating as follows:

“As part of a group of some thirty people the defendant participated in a presumed public event that was held in violation of the Public Events Act ... He refused to comply with [the police officer’s] lawful request to cease the commission of the offence and to follow him to the police station.”

12.  In separate proceedings the applicant was prosecuted for an offence under Article 20.2 § 2 of the CAO for organising and running a group event (in the form of a static demonstration) without giving prior notice to the competent local authority, in breach of the Public Events Act.

13.  The applicant stated that he had come to the square in front of the regional legislature alone to “mourn” the fair elections by way of holding a wreath and burning a candle; the square was full of other people, including journalists and the police; before that he had had a telephone conversation with M. telling her about his intention to go and mourn the elections; he had told the same to Kh., a journalist, who had decided to come and take photographs of the applicant.

14.  M. stated at the trial hearing that she had come to the square to mourn the elections; she had seen the applicant and others holding candles; others (passers-by) had joined them; the police had told her to stop but she had not understood what exactly.

15.  Kh. stated at the trial that he had been present at the square as a journalist and as a blogger interested in covering political events; the applicant had informed him about a planned event; he had joined the applicant and some others on the way to the square.

16.  Officer Ch. stated at the trial that he had seen the applicant conducting himself as a leader during the event, evident on account of him being in the centre of the group and holding a wreath (while others had had lit candles); the applicant had given instructions to others.

17.  Officer R. stated that he had first seen the applicant and two or three others coming to the square; they had then been joined by other people; the applicant had behaved as a leader vis-à-vis the others, who had not seemed to be there by chance.

18.  According to those and some other testimonies, between twenty and thirty people were present at the square at around 8 p.m. on 16 October 2012.

19.  By a judgment of 20 December 2012 a justice of the peace convicted the applicant under Article 20.2 § 2 of the CAO and sentenced him to a fine of 22,000 Russian roubles (approximately 540 euros at the time). The court held as follows:

(a)  The event in question had been held in public; it had been accessible to everyone and had been peaceful; by its nature it had fallen within the realm of a static demonstration and had been aimed at attracting the attention of other citizens to the recent elections; the event had been held in front of the regional administration offices with recourse to means of visual expression (such as the wreath with a specific message and lit candles);

(b)  The applicant had been the event’s organiser, in view of the testimony of M., Ch., R., Kh. and some others. The applicant had informed potential participants of the event by telephone and via the Internet, thereby conducting pre-event campaigning. The applicant’s leadership role could be seen on the video recording of the event, particularly when the applicant had engaged in talks with the police when he had stated “We have come to mourn” on several occasions;

(c)  The statutory requirement addressed to organisers of public events to give notification prior to an event was aimed at ensuring the peaceful and safe running of a public event without burdening rights and interests of others who were not taking part in the event; this requirement was also aimed at preventing disorder and ensuring security.

20.  On 5 March 2013 the Bryukhovetskiy District Court of Krasnodar Region upheld the judgment. The appellate court held that the applicant had exercised his rights to freedom of expression and freedom of peaceful assembly while failing to comply with a statutory obligation imposed on public events’ organisers, namely to give prior notification about the impugned public event.RELEVANT DOMESTIC LAW AND PRACTICEPublic Events Act

21.  For a summary of the relevant domestic law and practice see Kasparov and Others v. Russia (no. 21613/07, § 35, 3 October 2013); Navalnyy and Yashin v. Russia (no. 76204/11, §§ 43-44, 4 December 2014); Novikova and Others v. Russia (nos. 25501/07 and 4 others, §§ 67-69, 26 April 2016); and Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 216‑312, 7 February 2017).

22.  The provisions of the Public Events Act as in force at the material time directly relevant to the present case are set out below.

23.  Section 2(1) defined a “public event” as an open, peaceful event accessible to all, organised at the initiative of citizens of the Russian Federation, political parties, other public associations, or religious associations with the aims of expressing or developing opinions freely and voicing demands on issues related to political, economic, social or cultural life in the country, and issues related to foreign policy.

24.  The Public Events Act distinguished between five types of a public event: a gathering (собрание); a meeting (митинг); a demonstration (демонстрация); a march (шествие); and a “static demonstration” (пикетирование) (for further details, see Lashmankin and Others, cited above, § 219).

25.  Section 2(6) defined a static demonstration as a form of public expression of opinion that does not involve movement or the use of loudspeaker equipment, where one or more citizens with placards, banners and other means of visual expression station themselves near the target object of the static demonstration.

26.  In accordance with sections 5(4)(1) and 7(1)(3), notification in respect of a static demonstration involving several persons must be submitted no later than three days before the intended static demonstration or, if the end of the time-limit falls on a Sunday or a public holiday, no later than four days before the intended static demonstration. No notification was required for “gatherings” and static demonstrations involving one person.

27.  In accordance with section 7(3), notification must contain the following elements: (a) the purpose of a public event; (b) its form; (c) its place; (d) its date and the time of its beginning and ending; (e) an envisioned number of participants; (f) methods by employing which the organiser of a public event intends to ensure that public order be maintained and emergency medical aid be made available; (g) the full name of the organiser of a public event, his or her address and phone number; (h) the full names of persons authorised by the organiser of a public event to represent him or her in the course of a public event; (i) the date of submitting the notification.Police Act

28.  Pursuant to sections 2 and 12 of the Police Act, the police acts in the following areas: preventing (предупреждение) and putting an end to (пресечение) crimes and administrative offences, maintaining order in public places and carrying out action relating to maintaining order and preventing and ending offences.

29.  Pursuant to section 11(2) and section 12(1) of the Police Act, the police have the following duties: to arrive without delay to the site of an administrative offence, to put an end to unlawful actions (including administrative offences), to compile documents establishing the circumstances of an administrative offence, to ensure the safekeeping of evidence relating to that offence.

30.  Pursuant to lines 1, 7, 8 and 13 of section 13(1), the police are authorised to require others to stop unlawful actions, to require citizens (who are not participating in lawful assemblies) to disperse, to escort a person to (that is to say to force that person’s physical arrival at) a police station to decide whether that person should be subjected to an arrest procedure (where that matter cannot be decided on the spot), to compile an administrative-offence record, to gather evidence, to apply other preventive measures provided for by the relevant legislation on administrative offences.

THE LAWALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

31.  The applicant argued that the authorities had reacted in an unlawful and disproportionate manner to his expressive conduct in particular in that they had considered him to be the organiser of a non-notified group event and had sentenced him to a fine in addition to an earlier related sentence to administrative detention of fifteen days and his removal from the site of the protest.

32.  Having regard to the nature and scope of the applicant’s factual and legal submissions at the domestic level and before the Court, the Court considers that the above complaint falls to be examined under Article 10 of the Convention, interpreted in the light of the Court’s case-law relating to Article 11 of the Convention.

33.  Article 10 of the Convention 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 ...

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.”Admissibility

34.  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.MeritsThe parties’ submissions

35.  The applicant argued that he had not organised or run a static demonstration together with others and, in any event, it would not have been a “public event” within the meaning of the Public Events Act. As a candidate in the then very recent election to the regional legislature, he had visited various polling stations where he had observed multiple instances of electoral fraud. Feeling distressed, he had decided to express publicly in front of the regional legislature his feelings about that electoral fraud and the unfair election process. To do so he had decided to hold a wreath and burn a candle. The fact that he had then been joined by others (M., Z., and Kh.) did not indicate that he had organised a group event. He could not understand what the police order to “cease his unlawful actions” had meant (for instance, whether he had had to throw away the wreath and the candle or to do something specific, it being lawful to merely be present in and walk around a town square). Neither the administrative record nor the court decisions convicting him contained findings pertaining to the legality of the police orders.

36.  The Government submitted that the interference in the present case had been lawful and proportionate. Referring to various provisions of the Police Act (see paragraphs 28-30 above), the Government submitted that the applicant had been lawfully convicted of disobeying a lawful order on account of his refusal to cease his unlawful conduct (the offence) and to go to the requested police station. In the absence of any need for any urgent protest, the applicant had had ample time and opportunity to comply with the statutory procedure for notification of a planned public event. He had not done so without any valid reason. His prosecution under both Articles 19.3 and 20.2 of the CAO had been justified in view of the different public interests protected by those provisions.The Court’s assessment

37.  The Court observes that the definition of a static demonstration under the Public Events Act (see paragraphs 23-25 above) is broad to the extent that a vast array of social situations may fall under it. Any stationary gathering in public – no matter how small and short, irrespective of its purpose or context, and regardless of its potential to cause disruption to ordinary life – of two or more people (solitary static demonstrations being, as a rule, exempt from the prior-notification requirement) holding any object that could be regarded as “a means of visual expression” may be declared unlawful unless a document containing a lengthy list of elements (see paragraph 27 above) has been submitted to the authorities no later than three days before the event (see Obote v. Russia, no. 58954/09, §§ 37-38, 19 November 2019).

38.  The Court has already pointed out that the Russian regulatory framework governing public gatherings provides for a broad interpretation of what constitutes a gathering subject to notification and allocates to the authorities excessively wide discretion in imposing restrictions on such gatherings through rigid enforcement (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 150, 15 November 2018).

39.  Having examined the available material, including the reasoning of the domestic court decisions, the Court accepts that there was some basis for considering that the applicant had organised and run an assembly that could fall within the scope of the notion of a “public event” under Russian law and thus would require that prior notification be given to the local authority and, by implication, might give rise to liability under Article 20.2 § 2 of the CAO. In view of the findings below it is unnecessary to decide whether the interference with the applicant’s right to freedom of expression (freedom of assembly) was “prescribed by law” or pursued one or more legitimate aims (see, mutatis mutandis, Mătăsaru v. the Republic of Moldova, nos. 69714/16 and 71685/16, § 32, 15 January 2019). In the present case the Court will focus on assessing whether the interference was “necessary in a democratic society”.

40.  The Court reiterates in this connection that it is important for associations and others organising demonstrations, as actors in the democratic process, to abide by the rules governing that process by complying with the regulations in force, in particular those relating to the prior notification procedure (see Oya Ataman v. Turkey, no. 74552/01, § 38, ECHR 2006‑XIII, and Barraco v. France, no. 31684/05, § 44, 5 March 2009). States may impose sanctions on those who do not comply with this procedure. At the same time, an unlawful situation, such as the staging of or participation in a demonstration without prior authorisation, does not by itself justify an interference with a person’s right to freedom of assembly; the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities, who remain restricted by the proportionality requirement of Article 11 (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, §§ 150-51, ECHR 2015).

41.  On the aftermath of the regional election the applicant chose to express publicly his discontent with the manner in which those elections had been carried out. For that purpose he chose a particular form of expression by way of “mourning” fair elections through holding a wreath and lighting a candle. The Court reiterates that opinions, apart from being capable of being expressed through the media of artistic work, can also be expressed through conduct and may, as in the present case, amount to political expression (see Mariya Alekhina and Others v. Russia, no. 38004/12, § 205, 17 July 2018, and cases cited therein). Sanctions involving a prison sentence imposed by the national authorities for non‑violent conduct should be subjected to particular scrutiny (ibid., § 211, and Kudrevičius and Others, cited above, § 146).

42.  The applicant consistently denied that he had organised a group event. The courts found him guilty of an administrative offence on account of organising and running an event without giving prior notification to the competent local authority. Prior to that, however, the applicant had already been sentenced to fifteen days’ detention for disobeying police orders to cease his “unlawful actions” and to come with them to the police station. The Court notes that the applicant had not been formally escorted or arrested under the domestic regulations. It is therefore open to doubt what had constituted “disobedience” to a “lawful” order of the police under Article 19.3 of the CAO (see paragraphs 28-30 above).

43.  The impugned event was relatively small and ran in a peaceful and non-disruptive manner. It was not suggested that the applicant had been in any way violent during that event or that he had disrupted the peace or public order in any other manner. The offences of which the applicant was convicted included no further incriminating element concerning any “reprehensible act”, such as the obstruction of traffic or damage to property or acts of violence (compare and contrast Kudrevičius and Others, cited above, §§ 178-82; Barraco, cited above, §§ 46-47; and Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004). Nor did the authorities explain why they had preferred not to allow the demonstrators, including the applicant, to complete the presumed assembly and to impose a reasonable fine on the spot or later on (see, mutatis mutandis, Novikova and Others, cited above, § 175).

44.  Accordingly, the Court considers that in the instant case the overall reaction of the domestic authorities (see paragraph 31 above) towards the applicant’s exercise of his freedom of political expression on an important matter of political discourse was not “necessary in a democratic society” (compare Obote, cited above, § 45).

45.  There has accordingly been a violation of Article 10 of the Convention.OTHER ALLEGED VIOLATIONS OF THE CONVENTION

46.  Lastly, as regards the sentence of administrative detention, the applicant also made a separate complaint about a violation of Article 5 § 1 of the Convention due to the lack of any reasonable suspicion in respect of his having disobeyed any specific lawful order of the police.

47.  The Court notes that the applicant first raised this specific complaint, including the related legal argument, in his application form dated 25 July 2013. Thus, the Court considers that the complaint under Article 5 of the Convention was lodged on 25 July 2013, which was more than six months after the appeal decision dated 9 November 2012 (compare Zverev v. Russia (dec.), no. 16234/05, 3 July 2012).

48.  Accordingly, this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

49.  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.”Damage

50.  The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.

51.  The Government contested the claim.

52.  The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.Costs and expenses

53.  The applicant also claimed EUR 2,321 for the costs and expenses incurred before the Court.

54.  The Government indicated that the costs were based on a conditional-fee agreement, which, as of 2013-18, was not enforceable in Russia.

55.  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 (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 370-71, 28 November 2017). Regard being had to the documents in its possession and to its case-law, the Court awards EUR 241 for the proceedings before the Court. This sum should be paid directly to Ms Dubrovina as requested.Default interest

56.  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,Declares the complaint concerning Article 10 of the Convention admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 10 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that the respondent State is to pay Ms Marina Alekseyevna Dubrovina, within three months, EUR 241 (two hundred and forty‑one euros), in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(c)  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;Dismisses the remainder of the claim for just satisfaction.

Done in English, and notified in writing on 23 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Helen Keller
Deputy RegistrarPresident

 

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