Lashmankin and Others v. Russia

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 204

February 2017

Lashmankin and Others v. Russia - 57818/09, 51169/10, 4618/11 et al.

Judgment 7.2.2017 [Section III]

Article 11

Article 11-1

Freedom of peaceful assembly

Arbitrary and discriminatory power of authorities to propose changes in location, time or manner of conduct of a public event: violation

Article 13

Effective remedy

Lack of effective remedy allowing an enforceable judicial decision against authorities’ refusal to approve the location, time or manner of conduct of a public event before its planned date: violation

Facts – The applicants had proposed various unrelated assemblies, inter alia, to commemorate a well-known human-rights lawyer and a journalist who had been shot dead in Moscow in 2009, to protest against a draft law prohibiting adoption of children of Russian nationality by US citizens and to promote rights of homosexuals. The authorities imposed various restrictions on the assemblies’ location, time or manner of conduct. According to the applicants, these restrictions frustrated the purpose of the assemblies by making them invisible to their target audience. The applicants were unable to obtain a judicial remedy prior to the proposed events. In those cases where the applicants had attempted to assemble at the location and time chosen by them, the assembly was dispersed and the participants arrested and/or found liable for administrative offences.

In the Convention proceedings, the applicants complained, inter alia, under Articles 11 and 13 of a breach of their rights to freedom of assembly and the lack of an effective remedy in that respect.

Law

Article 13 in conjunction with Article 11: Russian law provided for time-limits for organisers to give notice of a public event. In contrast, there was no legally binding time-frame for the authorities to give their final decisions before the planned date of the public event. The judicial remedy available to the organisers of public events, which was of a post-hoc character, could not provide adequate redress in respect of the alleged violations of the Convention. Further, the scope of judicial review was limited to examining the lawfulness of the proposal to change the location, time or manner of conduct of a public event and the courts were not required by law to examine the issues of proportionality nor did they do so in practice.

The applicants did not therefore have at their disposal an effective remedy which would have allowed them to obtain an enforceable judicial decision on the authorities’ refusal to approve the location, time or manner of conduct of a public event before its planned date.

Conclusion: violation (unanimously).

Article 11

(a) Interference – In cases where they were crucial to the participants, an order to change the time, place and manner of conduct of an assembly could constitute interference with the participants’ right to freedom of assembly. The competent authorities had refused to approve the location, time or manner of conduct of public events planned by the applicants, and had proposed alternatives. The applicants, considering that the authorities’ proposals did not answer the purpose of their assembly, either cancelled the events altogether or decided to hold them as initially planned despite the risk of dispersal, arrest and prosecution. There had therefore been an interference with the applicants’ right to freedom of assembly.

(b) Justification for interference – The relevant domestic legislation empowered the domestic authorities to make well-reasoned proposals to the organisers for changes in the location, time or manner of conduct of a public event. There was no requirement however for any assessment of the proportionality of such a measure and there was a clear risk of arbitrariness in the grant of such broad and uncircumscribed discretion to the executive authorities.

Indeed, the present case showed that the above powers were often used in an arbitrary and discriminatory way. There were ample examples of situations where opposition groups, human-rights defenders or gay-rights activists were not allowed to assemble at a central location and were required to go to the outskirts of town on the grounds that they might hinder traffic, interfere with the everyday life of citizens, or present a security risk, and were dispersed and arrested if they refused to comply, while pro-government public events were allowed to take place at the same location, traffic, everyday-life disturbances and security risks notwithstanding. The most telling example was the case of LGBT-rights activists who had proposed ten different locations in the town centre, all of which were rejected on various grounds, while an anti-gay public event was approved to take place at one of those same locations on the same day.

The facts of the case demonstrated the lack of adequate and effective legal safeguards against arbitrary and discriminatory exercise of the wide discretion left to the executive. Accordingly, the domestic legal provisions governing the power to propose a change of location, time or manner of conduct of public events did not meet the Convention quality-of-law requirement.

(c) Prohibition on holding public events at certain locations – A general ban on demonstrations could only be justified if there was a real danger of their resulting in disorder which could not be prevented by other less stringent measures. In Russia the prohibition on holding public events in the vicinity of court buildings was formulated in absolute terms. It was not limited to public assemblies held with the intention of obstructing or impeding the administration of justice. Some of the applicants were not allowed to hold a Gay Pride event in the town centre, on the ground that the location they chose was in the vicinity of the Constitutional Court building. It was significant that the event at issue was unrelated to any case being examined by the Constitutional Court; its purpose was to mark the anniversary of the start of the LGBT-rights movement back in the 1960s and to condemn homophobia and discrimination against homosexuals. The refusal to approve the applicants’ public event by sole reference to the general ban, without any consideration of the specific circumstances of the case, could not be regarded as being necessary within the meaning of Article 11.

(d) Time-limits for notification of assemblies – The timing of public meetings held in order to voice certain opinions could be crucial for their political and social weight. If a public assembly was organised after a given social issue had lost its relevance or importance in a current social or political debate, the impact of the meeting could be seriously diminished. The time period during which it was possible to lodge a notification was six days: no earlier than fifteen days and no later than ten days before the public event, except for pickets, which could be notified three days before the planned date. The inflexible application of that provision made it impossible to hold a public event other than a picket during a number of days after the New Year and Christmas holidays in January each year. The applicants had been unable to hold a march and a meeting to commemorate the anniversary of the murders of a well-known human-rights lawyer and a journalist on 19 January. Although the applicants were able to hold a picket on that day, they had had to content themselves with a static event instead of a march, and had not been able to express themselves through public speeches. The authorities had not adduced relevant and sufficient reasons for the restrictions imposed on their freedom of assembly.

Further, the domestic legislation made no allowance for special circumstances, where an immediate response to a current event was warranted in the form of a spontaneous assembly. In such cases the delay caused by compliance with the ten-day notification time-limit could render that response obsolete. One of the applicants had wanted to protest against a draft law prohibiting the adoption of Russian children by US citizens. The date of the parliamentary examination of the draft law had been announced two days before, making it impossible for the protesters to comply with the shorter three-day notification time-limit for pickets, let alone with the normal ten-day time-limit for other types of public event. When convicting the applicant for participating in a public event held without prior notification, the domestic courts had limited their assessment to establishing that the applicant had taken part in a picket which had not been notified within the statutory time-limit. They had not examined whether there were special circumstances justifying derogation from the strict application of the notification time-limits.

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In conclusion, the authorities had not given relevant and sufficient reasons for their proposals to change the location, time or manner of conduct of the applicants’ public events. The proposals were based on legal provisions which did not provide for adequate and effective legal safeguards against the arbitrary and discriminatory exercise of wide discretion left to the executive and which did not therefore meet the Convention’s quality-of-law requirements. The automatic and inflexible application of the time-limits for notification of public events, without taking account of public holidays or the spontaneous nature of an event, was not justified. Further, the authorities had failed in their obligation to ensure that the official decision taken in response to a notification reached the applicants reasonably in advance of the planned event, in such a way as to guarantee a right to freedom of assembly which was practical and effective, not theoretical or illusory. By dispersing the applicants’ public events and arresting participants, the authorities had failed to show the requisite degree of tolerance towards peaceful, albeit unlawful, assemblies, in breach of the requirements of Article 11 § 2.

Conclusion: violation (unanimously).

The Court also found, unanimously, violations of Articles 5 § 1 and 6 § 1 in respect of certain applicants.

Article 41: sums ranging between EUR 5,000 and EUR 10,000 to each applicant in respect of non-pecuniary damage.

(See Kudrevičius and Others v. Lithuania [GC], 37553/05, 15 October 2015, Information Note 189; and Alekseyev v. Russia, 4916/07 et al., 21 October 2010, Information Note 134)

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