SECOND SECTION
CASE OF NIKOLENKO AND OTHERS v. RUSSIA
(Applications nos. 13679/18 and 20 others –
see appended list)
JUDGMENT
STRASBOURG
7 September 2023
This judgment is final but it may be subject to editorial revision.
In the case of Nikolenko and Others v. Russia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Lorraine Schembri Orland, President,
Frédéric Krenc,
Davor Derenčinović, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 6 July 2023,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The Russian Government (“the Government”) were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the disproportionate measures taken against them as organisers or participants of public assemblies. Some applicants also raised other complaints under various provisions of the Convention.
THE LAW
JOINDER OF THE APPLICATIONS5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
JURISDICTION6. The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68‑73, 17 January 2023).
ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION7. The applicants complained principally of disproportionate measures taken against them as organisers or participants of public assemblies, namely their arrest in relation to the dispersal of these assemblies and their conviction for administrative offences. They relied, expressly or in substance, on Article 11 of the Convention.
8. The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and proportionality of interference with it (see Oya Ataman v. Turkey, no. 74552/01, ECHR 2006‑XIV, and Hyde Park and Others v. Moldova, no. 33482/06, 31 March 2009).
9. In the leading cases of Frumkin v. Russia, no. 74568/12, ECHR 2016 (extracts); Navalnyy and Yashin v. Russia, no. 76204/11, 4 December 2014; and Kasparov and Others v. Russia, no. 21613/07, 3 October 2013, the Court already found a violation in respect of issues similar to those in the present case.
10. Having examined all the material submitted to it, having dismissed the Government’s objection of non-exhaustion in applications nos. 39614/18, 45704/18 and 48549/19, and having taken into account the issue of compliance with the six-month time-limit under Article 35 § 1 of the Convention (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022, in which the Court addressed the COVID-related extension of the period in question), the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the interferences with the applicants’ freedom of assembly were not “necessary in a democratic society”.
11. These complaints are therefore admissible and disclose a breach of Article 11 of the Convention.
OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW12. Some applicants submitted other complaints which also raised issues under the Convention and its Protocols, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible.
13. Having examined all the material before it, the Court concludes that these complaints also disclose violations of the Convention and its Protocols in the light of its findings in Butkevich v. Russia, no. 5865/07, §§ 63-65, 13 February 2018; Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 115-31, 10 April 2018; and Korneyeva v. Russia, no. 72051/17, §§ 34-36, 8 October 2019, as to various aspects of unlawful deprivation of liberty of organisers or participants of public assemblies; Karelin v. Russia, no. 926/08, §§ 58-85, 20 September 2016, concerning the absence of a prosecuting party in the proceedings under the Code of Administrative Offences (the CAO); and Martynyuk v. Russia, no. 13764/15, §§ 38-42, 8 October 2019, relating to the lack of suspensive effect of an appeal against the sentence of administrative detention.
REMAINING COMPLAINTS14. Some applicants raised further additional complaints under Articles 5 and 6 of the Convention concerning other aspects of their deprivation of liberty and fairness of the administrative-offence proceedings. In view of the findings in paragraphs 10-13 above, the Court considers that there is no need to deal separately with these remaining complaints.
15. The Court has further examined the rest of the complaints raised by the applicants and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION16. Regard being had to the documents in its possession and to its case‑law (see in particular Navalnyy and Others v. Russia [Committee], nos. 25809/17 and 14 others, § 22, 4 October 2022), the Court finds it reasonable to award the sums indicated in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Holds that it has jurisdiction to deal with the applicants’ complaints as they relate to facts that took place before 16 September 2022;Declares the complaints under Article 11 of the Convention and the other complaints under the well-established case-law of the Court, as set out in the appended table, admissible, finds that there is no need to examine separately the remaining complaints under Articles 5 and 6 of the Convention, and declares the remainder of the applications inadmissible;Holds that these complaints disclose a breach of Article 11 of the Convention;Holds that there has been a violation of the Convention and the Protocols thereto as regards the other complaints raised under well-established case‑law of the Court (see appended table);Holds(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 7 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{signature_p_1} {signature_p_2}
Viktoriya Maradudina Lorraine Schembri Orland
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 11 of the Convention
(disproportionate measures against organisers and participants of public assemblies)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Name of the public event
Location
Date
Administrative charges
Penalty
Final domestic decision
Court Name
Date
Other complaints under well‑established case-law
Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant
(in euros)[1]
13679/18
02/03/2018
Kirill Dmitriyevich NIKOLENKO
1989
Terekhov Konstantin Ilyich
Moscow
Anticorruption rally
Vladimir
12/06/2017
Article 20.2 § 2 of CAO
fine of RUB 20,000
Vladimir Regional Court
06/09/2017
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
3,500
39614/18
03/08/2018
Aleksandr Yuryevich ARTEMOV
1990
Eysmont Mariya Olegovna
Moscow
Anti-corruption manifestation
Moscow
12/06/2017
Rally in support of A. Navalnyy
Moscow
31/01/2021
Article 20.2 § 6.1 of CAO
Article 20.2 § 6.1 of CAO
fine of RUB 15,000
administrative detention of 7 days
Moscow City Court
06/02/2018
Moscow City Court
27/05/2021
Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention (i) on 12/06/2017 as administrative suspect, for drawing up a record of administrative offence; and (ii) between 6 p.m. on 31/01/2021 and 01/02/2021, as administrative suspect, "for compilation of administrative material"; no evidence/assessment of any "exceptional circumstances", under the CAO,
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - both sets of the administrative-offence proceedings
5,000
44996/18
14/09/2018
Vladislav Vladimirovich KULCHITSKIY
1997
Zhdanov Ivan Yuryevich
Vilnius
Rally in support on A. Navalnyy
Rostov-on-Don
24/12/2017
Article 20.2 § 3 of CAO
fine of RUB 15,000
Rostov Regional Court
19/03/2018
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
3,500
45058/18
12/09/2018
Olga Yuryevna KOMLEVA
1979
Zhdanov Ivan Yuryevich
Vilnius
Opposition rally
Ufa
28/01/2018
Rally against the pension reform
Ufa
09/09/2018
Article 20.2 § 1 of CA
Article 20.2 § 8 of CAO
fine of RUB 10,000
fine of RUB 75,000
Supreme Court of the Republic of Bashkortostan
14/03/2018
Supreme Court of the Republic of Bashkortostan
07/11/2018
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - both sets of the administrative-offence proceedings
4,500
45704/18
22/09/2018
Dmitriy Yevgenyevich BOGATOV
1993
Anti-corruption rally
Moscow
12/06/2017
Rally in support of A. Navalnyy
Moscow
23/01/2021
Article 20.2 § 5 of CAO
Article 20.2 § 5 of CAO
fine of RUB 15,000
fine of RUB 10,000
Moscow City Court
22/03/2018
Moscow City Court
13/05/2021
Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention (i) on 12/06/2017, and (ii) on 23/01/2021, each time for the sole purpose of drawing up an administrative offence record,
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - both sets of the administrative-offence proceedings
4,000
54029/18
06/11/2018
Dmitriy Vladimirovich KALINYCHEV
1980
Boris Nemtsov memorial march
Nizhniy Novgorod
25/02/2018
Event to protest against unfair elections ("Funeral of the elections")
Nizhniy Novgorod
11/03/2018
Rally against the pension reform
Nizhniy Novgorod
09/09/2018
Article 20.2 § 8 of CAO
Article 20.2 § 8 of CAO
Article 20.2 § 2 of CAO
fine of RUB 150,000
administrative detention of 20 days
administrative detention of 20 days
Nizhniy Novgorod Regional Court
01/08/2018
Nizhniy Novgorod Regional Court
10/05/2018
Nizhniy Novgorod Regional Court
14/11/2018
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - all sets of the administrative-offence proceedings,
Prot. 7 Art. 2 - delayed review of conviction by a higher tribunal - the sentence of administrative detention imposed on the applicant on 13/09/2018 was executed immediately, on account of the lack of suspensive effect of an appeal under the CAO
6,000
55565/18
13/11/2018
and
52297/20
31/10/2020
Aleksandr Aleksandrovich SOFEYEV
1987
Sergeyeva Irina Vadimovna
Moscow
Solovyev Leonid Alekseyevich
Moscow
Rally against the ban of the Telegram Messenger
Moscow
16/04/2018
Rally against abusive criminal prosecution
Moscow
03/02/2020
Event in support of LGBT community
Moscow
07/10/2020
Article 20.2.2 § 1 of CAO
Article 20.2 § 5 of CAO
Article 20.2 § 8 of CAO
fine of RUB 10,000
fine of RUB 15,000
administrative detention of 30 days
Moscow City Court
30/05/2018
Moscow City Court
04/09/2020
Moscow City Court
13/10/2020
Art. 5 (1) - unlawful deprivation of liberty – (i) arrest, escorting to a police station and detention between 16/04/2018 and 17/04/2018 for the sole purpose of drawing up a record of administrative offence (such record was drawn up on 16/04/2018); (ii) arrest, escorting to a police station, detention between 08/10/2020 and 09/10/2020 as administrative suspect;
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings (two sets of the administrative-offence proceedings, final judgments given on 30/05/2018 and 13/10/2020 respectively)
5,000
11699/19
15/02/2019
Aleksey Yuryevich GOLYSHEV
1976
Pomazuyev Aleksandr Yevgenyevich
Vilnius
Opposition rally
Moscow
05/05/2018
Rally in support of A. Navalnyy
Moscow
31/01/2021
Rally in support of A. Navalnyy
Korolev, Moscow Region
21/04/2021
Article 20.2 § 5 of CAO
Article 20.2 § 5 of CAO (first-instance court – proceedings discontinued by the court of appeal)
Article 20.2 § 5 of CAO
fine of RUB 10,000
fine of RUB 10,000 (ordered by the first instance court – subsequently quashed, as proceedings discontinued by the court of appeal)
fine of RUB 5,000
Moscow City Court
24/09/2018
Moscow City Court (administrative‑offence proceedings discontinued)
07/06/2021
Moscow Regional Court
27/05/2021
Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention (i) escorted and detained in a police station on 05/05/2018 as administrative suspect; (ii) on 31/01/2021, for drawing up a record of administrative offence; (iii) between 21/04/2021 and 23/04/2021, as administrative suspect;
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings – the first and the third sets of the administrative-offence proceedings (final judgments of 24/09/2018 and 27/05/2021)
5,000
17792/19
18/03/2019
Timur Arturovich TUKHVATULLIN
2001
Sholokhov Igor Nikolayevich
Kazan
Rally against the pension reform
Kazan
09/09/2018
Article 20.2 § 5 of CAO
fine of RUB 10,000
Supreme Court of the Republic of Tatarstan
20/02/2019
Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention on 09/09/2018, in excess of three hours, for the sole purpose of drawing up a record of administrative offence
4,000
28970/19
04/05/2019
Kirill Vladimirovich SEREBRENNIKOV
1996
Fedotova Yuliya Yevgenyevna
Yekaterinburg
Rally against the pension reform
Yekaterinburg
09/09/2018
Article 20.2 § 5 of CAO
fine of RUB 10,000
Sverdlovsk Regional Court
22/01/2019
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
3,500
30129/19
21/05/2019
Anatoliy Mariyevich SVECHNIKOV
1972
Rally against the pension reform
Yekaterinburg
09/09/2018
Article 20.2 § 5 of CAO
fine of RUB 10,000
Sverdlovsk Regional Court
28/11/2018
Art. 5 (1) - unlawful deprivation of liberty - arrest, delayed escorting to a police station, detention on 09/09/2018 in excess of three hours, for the sole purpose of drawing up a record of administrative offence,
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
4,000
31511/19
28/05/2019
Natalya Sergeyevna PETERIMOVA
1987
Balog Natalya Andreyevna
Krasnoyarsk
Rally against the pension reform
Krasnoyarsk
09/09/2018
Article 20.2 § 5 of CAO
fine of RUB 15,000
Krasnoyarsk Regional Court
29/11/2018
Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention on 18/09/2018 for the sole purpose of drawing up a record of administrative offence; escort and arrest records not compiled,
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
4,000
37262/19
16/03/2019
Anton Viktorovich STRUNIN
1982
Rally against the pension reform
Penza
09/09/2018
Article 19.3 § 1 of CAO
and
Article 20.2 § 1 of CAO
administrative detention of 10 days
and
fine of RUB 14,000
Penza Regional Court
18/09/2018
and
Penza Regional Court
04/04/2019
Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention between 11/09/2018 and 12/09/2018 as administrative suspect
5,000
48549/19
28/08/2019
Petr Vladimirovich ABLIN
1981
Event against the pension reform
Moscow
05/11/2018
Manifestation for fair elections to Mosgorduma
Moscow
27/07/2019
Manifestation in support of A. Navalnyy
Moscow
23/01/2021
Manifestation in support of A. Navalnyy
Moscow
31/01/2021
Article 20.2 § 5 of CAO
Article 20.2 § 5 of CAO
Article 20.2 § 5 of CAO
Article 20.2 § 5 of CAO
fine of RUB 15,000
fine of RUB 15,000
fine of RUB 20,000
fine of RUB 20,000
Moscow City Court
28/02/2019
Moscow City Court
14/10/2019
Moscow City Court
14/04/2021
Moscow City Court
08/04/2021
Art. 5 (1) - unlawful deprivation of liberty-arrest, escorting to a police station, detention on four occasions, each time for the sole purpose of drawing up a record of administrative offence: (i) on 05/11/2018, (ii) on 27/07/2019, in excess of three hours (the administrative offence record only drawn up on 31/07/2019), (iii) on 23/01/2021 (administrative offence record compiled only on 25/01/2021), and (iv) on 31/01/2021, in excess of three hours, and after the administrative-offence record had been drawn up,
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - four sets of the administrative-offence proceedings
5,000
56867/19
14/10/2019
Aleksandr Vladimirovich YUFRYAKOV
1958
Sholokhov Igor Nikolayevich
Kazan
Rally against construction of a disposal site
Arkhangelsk
07/04/2019
Article 20.2 § 6 of CAO
fine of RUB 14,000
Arkhangelsk Regional Court
18/06/2019
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
3,500
6884/20
28/01/2020
Aleksey Yuryevich CHERKES
1984
Memorial Human Rights Centre
Moscow
Manifestation for fair elections to Mosgorduma
Moscow
27/07/2019
Article 20.2 § 6.1 of CAO
fine of RUB 15,000
Moscow City Court
18/11/2019
Art. 5 (1) - unlawful deprivation of liberty - arrest and escorting to the police office, detention between 27/07/2019 and 29/07/2019 as administrative suspect (offence record compiled already on 27/07/2019),
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
4,000
7523/20
29/01/2020
Yevgeniy Ivanovich SKACHKOV
1979
Memorial Human Rights Centre
Moscow
Manifestation for fair elections to Mosgorduma
Moscow
27/07/2019
Article 20.2 § 6.1 of CAO
fine of RUB 10,000
Moscow City Court
04/09/2019
Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention between 27/07/2019 and 29/07/2019 as administrative suspect; no evidence/assessment of any exceptional circumstances under the CAO,
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
4,000
12207/20
27/02/2020
Aleksey Igorevich SEMENOV
1993
Memorial Human Rights Centre
Moscow
Demonstration in support of Ivan Golunov
Moscow
12/06/2019
Article 20.2 § 6.1 of CAO
fine of RUB 15,000
Moscow City Court
26/08/2019
(the final decision served on the applicant on the following day)
Art. 5 (1) - unlawful deprivation of liberty- arrest, delayed escorting to a police station, detention on 12/06/2019 for the sole purpose of drawing up a record of administrative offence;
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
4,000
19605/20
25/03/2020
Nikolay Nikolayevich LYASKIN
1982
Pomazuyev Aleksandr Yevgenyevich
Vilnius
Manifestation for fair elections to Mosgorduma
Moscow
31/08/2019
Article 20.2 § 5 of CAO
fine of RUB 20,000
Moscow City Court
02/12/2019
3,500
32691/20
02/07/2020
Vyacheslav Sergeyevich KUZNETSOV
1987
Memorial Human Rights Centre
Moscow
Manifestation for fair elections to Mosgorduma
Moscow
03/08/2019
Article 20.2 § 5 of CAO
fine of RUB 15,000
Moscow City Court
02/10/2019
Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention on 03/08/2019 for the sole purpose of drawing up a record of administrative offence;
6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
4,000
[1] Plus any tax that may be chargeable to the applicants.