Frumkin v. Russia

Information Note on the Court’s case-law 192

January 2016

Frumkin v. Russia - 74568/12

Judgment 5.1.2016 [Section III]

Article 11

Article 11-1

Freedom of peaceful assembly

Authorities’ failure to communicate with the leaders of a protest demonstration in order to ensure its peaceful conduct: violation

Facts – On 6 May 2012 the applicant participated in an authorised political rally at Bolotnaya Square in Moscow whose aim was to protest against alleged “abuses and falsifications” in the 2011 elections to the State Duma and the presidential elections held earlier in 2012. After a peaceful march, the demonstrators reached the square but found that, contrary to expectations, the park was excluded from the meeting venue and access to it was barred by a cordon of riot police. The venue was instead limited to Bolotnaya embankment, where the organisers had set up a stage. After unsuccessfully trying to negotiate with the police, the leaders of the march announced a “sit-down strike” and sat on the ground; between 20 and 50 people followed their call and joined them. About an hour later congestion occurred at the site of the “sit-down strike” and the pressure of the crowd caused the cordon to break for the first time, before it was quickly restored without the use of force. Protestors from among the crowd began tossing various objects at the police cordon, including a Molotov cocktail. At the same time, upon police instructions, an announcement was made from the stage that the meeting was over. However, most of the demonstrators and media reporters did not hear the message. Subsequently riot police began to disperse the demonstration and arrested some of the activists, including several of the march leaders.

The applicant was arrested during the dispersal of the demonstration. He was detained for a period of 36 hours and eventually sentenced to 15 days’ administrative detention for obstructing traffic and disobeying police orders. He alleged that the authorities had intended from the outset to suppress the rally in order to discourage street protest and political dissent and had implemented the crowd-control measures in order to provoke a confrontation that would serve as a pretext for the early dispersal of the meeting. He also argued that his own arrest, pre-trial detention and ensuing conviction for an administrative offence had been arbitrary and unnecessary.

Law

Article 11: While the applicant’s complaint partly concerned general events, it was clear that these had directly affected him individually and his rights guaranteed by Article 11: he had been unable to take part in the meeting because it had been disrupted and then cancelled. That complaint was distinct from the grievances about the applicant’s own subsequent arrest and detention. The Court examined the two issues separately.

(a) Obligation to ensure the peaceful conduct of the assembly – An elaborate security operation had been prepared throughout the city on the day of the assembly in view of the anticipated unauthorised street protests. The authorities had suspected the opposition activists of plotting a popular uprising with campsites, similar to the “Occupy” movement and the “Maidan” protest in Ukraine. It was for this reason that the police had decided to restrict the venue to the embankment where tents could not easily be set up. Although Article 11 of the Convention did not guarantee a right to set up a campsite at a location of one’s choice, such temporary installations might in certain circumstances constitute a form of political expression and any restrictions had to comply with the requirements of the Convention. The Court took that into account when assessing the proportionality of the measures taken.

On the face of it, the decision to close the park to the rally did not appear in itself hostile or underhand, given that the embankment had sufficient capacity to accommodate the assembly. However, the organisers had objected not only to the lack of access, but above all to a last-minute alteration to the venue layout. Given the high priority attributed to policing the event and the thoroughness with which the security forces had followed every piece of information concerning the protest activity, it was unlikely that the original map published by the police, which had included the park, had inadvertently slipped their attention. There had thus been at least a tacit, if not an express, agreement that the park would form part of the venue.

As regards the “sit-down strike”, even though it had aggravated the congestion, it had remained localised, left sufficient space for those wishing to pass and was strictly peaceful. However, it had required the authorities’ intervention. While it was not for the Court to indicate what was the most appropriate manoeuvre for the police cordon in the circumstances and while the police’s refusal to allow access to the park may have been justified, the authorities should have communicated their chosen course of action openly, clearly and promptly.

In the Court’s view, had the competent officials been prepared to come forward in order to communicate with the assembly organisers, they could have alleviated the tensions caused by the unexpected change of venue. However, the police authorities had not provided a reliable channel of communication with the organisers. No officer had been assigned to liaise with the assembly organisers (although officers had been designated for liaising with civil society organisations and the press). That omission was striking, given the general thoroughness of the security preparations. Furthermore, the authorities had failed to respond to the real-time developments in a constructive manner. The standoff near the cordon had lasted for about 50 minutes, a considerable period of time. The senior police officers had had ample opportunity to contact the organisers by telephone and to personally approach them. However, no official had taken any interest in talking to the leaders of the march. Eventually, when the “sit-down strike” began, they sent the Ombudsman with a message to the leaders to stand up and move on, but this provided no answer to the protestors’ concerns. The authorities’ failure to take simple and obvious steps at the first signs of the conflict had allowed it to escalate, leading to the disruption of the previously peaceful assembly. The authorities had, therefore, not complied with even the minimum requirements in their duty to communicate with the assembly leaders, which was an essential part of their positive obligation to ensure the peaceful conduct of the assembly, to prevent disorder and to secure the safety of all the citizens involved.

Conclusion: violation (unanimously).

(b) Termination of the assembly and the applicant’s arrest, detention and charges – The tensions had been localised at the place of the “sit-down strike” while the rest of the venue had remained calm. The authorities had not shown that prior to announcing the whole meeting closed they had attempted to separate the turbulent sector and target the problems there, so as to enable the meeting to continue in the sector of the stage where the situation had remained peaceful. The Court was therefore not convinced that the termination of the meeting had been inevitable. However, even assuming that the decision to close the meeting was taken because of a real and imminent risk that violence would spread and intensify and that the authorities were acting within their margin of appreciation, it could have been implemented in different ways and using various methods.

The Court abstained from analysing the manner in which the police had dispersed the protestors at the site of the “sit-down strike”, as it fell outside the scope of the applicant’s case. Instead, it examined the actions taken against the applicant personally, while taking into account the general situation in his immediate vicinity, that is, the area in front of the stage inside the designated meeting area on the embankment.

The applicant had stayed within the perimeter of the cordoned meeting venue and his behaviour had remained, by all accounts, strictly peaceful. Accordingly, even after the assembly was officially terminated, the guarantees of Article 11 continued to apply in respect of the applicant, notwithstanding the clashes at the site of the “sit-down strike”.

The Court was mindful of the authorities’ admission that the entirety of the security measures, in particular the crackdown on those charged with offences committed during the rally, had been motivated by the “fear of Maidan”. At the same time, the applicant had been arrested, detained and sentenced to fifteen days’ imprisonment for obstructing traffic and disobeying lawful police orders to stop, not for breaching the rules on public assembly. In that context, the severity of the measures taken against the applicant was entirely devoid of justification. He had not been accused of violent acts, or even of “passive resistance” in protest against the closure of the meeting. His motives for walking on the road and obstructing the traffic were left unexplained by the domestic judgments; the applicant’s explanation that there had been no traffic and that he was simply not quick enough to leave the venue in the general confusion had not been contested or ruled out. Therefore, even assuming that the applicant’s arrest, pre-trial detention and administrative sentence had complied with domestic law and pursued one of the legitimate aims enumerated in Article 11 § 2 – presumably, public safety – the measures taken against him had been grossly disproportionate to the aim pursued. There had been no “pressing social need” to arrest the applicant, to escort him to the police station or, in particular, to sentence him to a prison term, albeit a short one.

The applicant’s arrest, detention and ensuing administrative conviction could not but have discouraged him and others from participating in protest rallies or engaging actively in opposition politics. Undoubtedly, those measures had had a serious potential also to deter other opposition supporters and the public at large from attending demonstrations and, more generally, participating in open political debate. The chilling effect of those sanctions had been amplified further by the large number of arrests effected on that day, which had attracted broad media coverage.

Conclusion: violation (unanimously).

Article 5 § 1: From the time of his arrest, at the latest at 8.30 p.m. on 6 May 2012, to his transfer to court at 8 a.m. on 8 May 2012 the applicant had been deprived of his liberty within the meaning of Article 5 § 1. The duration of administrative detention should not as a general rule exceed three hours, which was an indication of the period of time the law regarded as reasonable and sufficient for drawing up an administrative offence report. Once the administrative offence report had been drawn up at 9.30 p.m., the objective of escorting the applicant to the police station was met and he could have been discharged. However, he was formally remanded in custody to secure his attendance at the hearing before the justice of the peace. In the absence of any explicit reason given by the authorities for not releasing the applicant, his 36-hour detention pending trial was unjustified and arbitrary.

Conclusion: violation (unanimously).

Article 6 § 1 in conjunction with Article 6 § 3 (d): The domestic courts had based their judgment exclusively on standardised documents submitted by the police and had refused to accept additional evidence or to call the police officers who had arrested the applicant. The only evidence against him had thus not been tested in the judicial proceedings. Moreover, the courts had limited the scope of the administrative case to the applicant’s alleged disobedience, having omitted to consider the “lawfulness” of the police order. They had thus punished the applicant for actions protected by the Convention without requiring the police to justify the interference with the applicant’s right to freedom of assembly, which included affording him a reasonable opportunity to disperse when such an order was given. The failure to give him that opportunity had run counter to the fundamental principles of criminal law, namely, in dubio pro reo. The administrative proceedings against the applicant, which fell under the criminal limb of Article 6, taken as a whole, had been conducted in violation of his right to a fair hearing.

Conclusion: violation (unanimously).

Article 41: EUR 25,000 in respect of non-pecuniary damage.

(See also Kasparov and Others v. Russia, 21613/07, 3 October 2013, Information Note 167; Navalnyy and Yashin v. Russia, 76204/11, 4 December 2014, Information Note 180; Nemtsov v. Russia, 1774/11, 31 July 2014)

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