FOURTH SECTION
CASE OF SMOLEV AND OTHERS v. RUSSIA
(Applications nos. 20140/21 and 12 others –
see appended list)
JUDGMENT
STRASBOURG
27 June 2024
This judgment is final but it may be subject to editorial revision.
In the case of Smolev and Others v. Russia,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Branko Lubarda, President,
Armen Harutyunyan,
Ana Maria Guerra Martins, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 6 June 2024,
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. They also raised other complaints under the provisions of the Convention and its Protocols.
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, 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, §§ 102 and 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); Novikova and Others v. Russia, nos. 25501/07 and 4 others, §§ 106-225, 26 April 2016, relating to disproportionate measures taken by the authorities against participants of solo manifestations; Elvira Dmitriyeva v. Russia, nos. 60921/17 and 7202/18, §§ 77-90, 30 April 2019, as to administrative conviction for making calls to participate in public assemblies; 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 the Convention concerning other aspects of their deprivation of liberty, fairness of the administrative-offence proceedings and freedom of expression. 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.
APPLICATION OF ARTICLE 41 OF THE CONVENTION15. 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 these applications 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, and finds that there is no need to examine separately the remaining complaints;Holds that these applications 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 the 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 27 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Branko Lubarda
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 offence
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]
20140/21
23/03/2021
Yaroslav Aleksandrovich SMOLEV
1999
Memorial Human Rights Centre
Moscow
Rally in support of S. Furgal
Khabarovsk
28/11/2020
article 20.2 § 6.1 of CAO
fine of RUB 10,000
Khabarovsk Regional Court
12/01/2021
Art. 5 (1) - unlawful detention – (i) arrest and detention between 28/11/2020 and 30/11/2020 as administrative suspect, after the offence record had been complied,
and
(ii) on 06/03/2022 and on 07/04/2022, each time the applicant was escorted to a police station and detained there for the sole purpose of compiling an offence record (under articles 20.6.1 § 1 of the CAO and 20.3.3 of the CAO, respectively), no written record of the administrative escorting,
Art. 10 (1) - disproportionate measures against solo demonstrators - Khabarovsk, 06/03/2022, a solo demonstration against the war in Ukraine - arrest and conviction under article 20.3.3 § 1of CAO, fine of RUB 30,000, final judgment of 01/06/2022 by the Khabarovsk Regional Court
4,000
37509/21
10/07/2021
Oleg Nikolayevich KOVALEV
1975
Borodina Milita Petrovna
Magnitogorsk
Rally “Free Navalnyy”
Magnitogorsk
31/01/2021
article 20.2 § 5 of CAO
fine of RUB 10,000
Chelyabinsk Regional Court
24/03/2021
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 administrative offence proceedings (final judgments of 24/03/2021 and 24/11/2021),
Art. 10 (1) - conviction for making calls to participate in public events - arrest, conviction under article 20.2 § 2 of the CAO, fine of RUB 10,000 for publishing on 06/09/2021 a call for participation in a Left Front rally (scheduled for 12/09/2021) on VKontakte, final judgment of 24/11/2021 by the Chelyabinsk Regional Court
4,000
40129/21
28/07/2021
Sergey Nikolayevich KOZLOV
1994
Memorial Human Rights Centre
Moscow
Rally in support of A. Navalnyy
Ulyanovsk
31/01/2021
article 20.2 § 2 of CAO
administrative detention of
8 days
Ulyanovsk Regional Court
03/02/2021
Art. 5 (1) - unlawful detention - arrest, escorting to a police station, detention between 31/01/2021 and 01/02/2021 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,
Prot. 7 Art. 2 - delayed review of conviction by a higher tribunal – the sentence of administrative detention imposed on the applicant on 01/02/2021 was executed immediately, on account of the lack of suspensive effect of the appeal under the CAO
5,000
43252/21
17/08/2021
Marina Lvovna SAVVATEYEVA
1961
Rally in support of A. Navalnyy
Chita
23/01/2021
article 20.2 § 5 of CAO
fine of RUB 10,000
Zabaykalskiy Regional Court
15/03/2021
Art. 10 (1) - disproportionate measures against solo demonstrators - Chita, 31/01/2021, solo demonstration in support of A. Navalnyy – conviction under article 20.2 § 2 of CAO, community service of 20 hours, final judgment of 09/03/2021 by the Zabaykalskiy Regional Court
4,000
45565/21
25/08/2021
Kirill Vladislavovich ALEKHIN
1982
Rally in support of A. Navalnyy
Kazan
31/01/2021
article 20.2 § 5 of CAO
fine of RUB 15,000
Supreme Court of the Tatarstan Republic
14/04/2021
Art. 5 (1) - unlawful detention - arrest, escorting to a police station, detention (i) from 31/01/2021 to 01/02/2021 as administrative suspect, pending trial and after the offence record had been compiled,
and
(ii) from 24/02/2022 to 25/02/2022 as administrative suspect, pending trial and after the offence record had been compiled,
Art. 10 (1) - disproportionate measures against solo demonstrators – an anti-war solo demonstration, 24/02/2022, Kazan – arrest, conviction under Article 20.2 § 8, administrative detention of 10 days, final judgment of 03/03/2022 by the Supreme Court of the Republic of Tatarstan,
Prot. 7 Art. 2 - delayed review of conviction by a higher tribunal – the sentence of administrative detention imposed on the applicant on 25/02/2022 was executed immediately, on account of the lack of suspensive effect of an appeal under the CAO
5,000
54269/21
13/10/2021
Mikhail Yuryevich GEORGI
1972
Memorial Human Rights Centre
Moscow
Picket in support of A. Navalnyy
Taganrog
31/01/2021
article 20.2 § 5 of CAO
fine of RUB 10,000
Rostov Regional Court
13/04/2021
Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings
3,500
16587/22
08/03/2022
Andrey Mikhaylovich GOLOSOV
1987
Zubarev Dmitriy Vladimirovich
Vladivostok
Rally against the pension reform
Vladivostok
15/09/2018
article 20.2 § 5 of CAO
fine of RUB 10,000
Primorye Regional Court
16/01/2019
(proceedings discontinued for the lack of corpus delicti)
The applicant brought compensation proceedings; the courts awarded him RUB 10,000 (EUR 115) for unlawful administrative prosecution and rejected the remainder of his claim for compensation, final judgment: 08/09/2021, Supreme Court of Russia
Art. 5 (1) – unlawful detention – arrest, escorting to a police station, detention on 15/09/2018 for the sole purpose of drawing up a record of administrative offence
3,900
38018/22
06/07/2022
Mikhail Aleksandrovich SALOSIN
1990
Kabirov Rushan Rafisovich
Kazan
Anti-war rally
Kazan
27/02/2022
article 20.2 § 5 of CAO
fine of RUB 5,000
Supreme Court of the Republic of Tatarstan
11/05/2022
Art. 5 (1) - unlawful detention - arrest, escorting to a police station, detention on 27/02/2022 for the sole purpose of drawing up a record of administrative offence
4,000
38113/22
02/06/2022
Yaroslav Vladimirovich YARTSEV
2001
Baranova Natalya Andreyevna
Moscow
Rally in support of A. Navalnyy
Moscow
23/01/2021
article 20.2 § 6.1 of CAO
fine of RUB 10,000
Moscow City Court
15/12/2021
Art. 5 (1) - unlawful detention - arrest, escorting to a police station, detention between 23/01/2021 and 24/01/2021 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
4,000
42451/22
18/08/2022
Dmitriy Vladimirovich BLIZNETSOV
1966
Kulikov Sergey Sergeyevich
Nizhniy Novgorod
Anti-war protest
Nizhniy Novgorod
06/03/2022
article 20.2 § 5 of CAO
fine of RUB 10,000
Nizhniy Novgorod Regional Court
27/04/2022
Art. 5 (1) - unlawful detention - escorting toa police station, detention between 06/03/2022 and 07/03/2022 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
4,000
51318/22
21/10/2022
Taryana Nikolayevna BRYATKOVA
1958
Baranova Natalya Andreyevna
Moscow
Boris Nemtsov memorial rally
Moscow
27/02/2022
article 20.2 § 5 of CAO
fine of RUB 15,000
Moscow City Court
21/06/2022
Art. 5 (1) - unlawful detention - arrest, escorting to a police station, detention on 27/02/2022 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
51324/22
20/10/2022
Mariya Alekseyevna KORCHAGINA
1963
Boris Nemtsov memorial rally
Moscow
27/02/2022
article 20.2 § 5 of CAO
fine of RUB 15,000
Moscow City Court
21/06/2022
Art. 5 (1) - unlawful detention - arrest, escorting to a police station, detention on 27/02/2022 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
51338/22
21/10/2022
Maina Anatolyevna POTOLOVA
1973
Baranova Natalya Andreyevna
Moscow
Anti-war protest
Moscow
01/03/2022
article 20.2 § 5 of CAO
fine of RUB 10,000
Moscow City Court
29/06/2022
Art. 5 (1) - unlawful detention - arrest, escorting to a police station, detention on 01/03/2022 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
[1] Plus any tax that may be chargeable to the applicants.