Published on 11 October 2021
THIRD SECTION
Application no. 1257/21
Viktor Aleksandrovich NEMYTOV against Russia
and 2 other applications
(see list appended)
communicated on 22 September 2021
SUBJECT MATTER OF THE CASE
The applications concern the prohibition of public events in Moscow introduced in response to the spread of the Covid-19 virus. In late May 2020, when strict lockdown measures were in place in Moscow, Mr Nemytov (case no. 1257/21, events of 26 May 2020) staged a solo demonstration, and Mr Azar (case no. 3244/21) participated in a series of solo demonstrations held by participants in turn, subsequently classified by an appellate court as a group event requiring a notification. The demonstrations were immediately discontinued, the applicants were arrested and convicted in the administrative proceedings for a breach of rules of conduct during a high alert regime (Mr Nemytov) and a repeated breach of rules of conduct of a public event (Mr Azar). The courts found, in particular, that the applicants had violated the requirements of the Decree of the Mayor of Moscow of 5 March 2020 No. 12-УМ introducing a high alert regime in Moscow and setting out a ban on holding public events, as well as (in case of Mr. Nemytov) Instruction No. 1П of 29 March 2020 by the Chief Sanitary Doctor of Moscow. In his grounds of appeal Mr Azar complained, in particular, that under domestic law the sentence of administrative arrest could not be applied to women having children aged under the age of fourteen but could be applied to men in an analogous situation which, in his view, amounted to a discrimination on the ground of sex. The appellate court upheld the application of administrative arrest to Mr Azar as lawful.
Mr Kostyukhin (case no. 24699/21) staged a solo demonstration wearing a mask and gloves on 1 August 2020, when a major part of the restrictions had been eased in Moscow but the ban on public events remained in place. He was found administratively liable for a breach of rules of conduct during a high alert regime and fined approximately 15,000 Russian roubles (RUB).
Mr Nemytov (case no. 1257/21) on 5 June 2020 participated in a series of solo demonstrations held by participants in turn, which was subsequently assessed by domestic courts as a group event in the form of a picket requiring a prior notification. He was sentenced to an administrative fine of RUB 150,000 for a failure to notify his demonstration.
Mr Nemytov (case no. 1257/21) on 25 June 2020 staged a solo demonstration in Red Square, Moscow. He was found administratively liable for a breach of a ban on public events in the vicinity of the residence of the President of Russia and sentenced to administrative arrest.
QUESTIONS TO THE PARTIES
1. Do the circumstances of each case (where relevant, termination of a demonstration, escorting to a police station, arrest and prosecution under the Code of Administrative Offences) disclose a violation of Article 10 § 1 or Article 11 § 1 of the Convention (see Novikova and Others v. Russia, nos. 25501/07 and 4 others, 26 April 2016)?
(a) Was the interference “prescribed by law”? The parties are invited to address, in particular, the following issues:
(i) Did the domestic provisions introducing the ban on public events including solo demonstrations in Moscow meet the “quality of law” requirements?
(ii) In cases no. 1257/21 (events of 5 June 2020) and no. 3244/21, did the domestic law and judicial practice at the time of the events allow for a clear distinction to be drawn between solo “pickets” staged by several participants in turn and a public assembly such as a group “picket” (reference is made, in particular, to § 31 of the Ruling No. 28 of 28 June 2018 by the Plenary Supreme Court clarifying that several solo demonstrations could be considered as a single group picketing if they were shown to be held simultaneously)? If not, was the “quality of law” adversely affected?
(iii) In case no. 1257/21 (events of 25 June 2020), were the relevant procedures, including the precise geographical scope of the restrictions, on holding public events in Red Square clear and accessible to the public? What is the justification for the ban on holding public events at that location? The Government are requested to provide documents establishing the perimeter of the zone in the vicinity of the Kremlin in which holding public events was prohibited at the relevant time; as well as information on the legislative history of the relevant statutory ban. Was the location chosen by the applicant within the restricted perimeter?
(b) In each case, did the interference pursue a legitimate aim? Was the interference “necessary in a democratic society” and proportionate to the legitimate aim pursued? Were the reasons adduced by the national authorities to justify the interference “relevant and sufficient”?
2. In cases nos. 1257/21 (events of 26 May and 5 June 2020) and 3244/21, has there been a violation of the applicants’ rights under Article 5 of the Convention on account of the applicants’ escorting to the police stations and arrests (see Navalnyy and Yashin v. Russia, no. 76204/11, §§ 89-98, 4 December 2014)?
3. In cases nos. 1257/21 and 3244/21, were the courts which dealt with the applicants’ cases impartial, as required by Article 6 § 1 of the Convention, on account of the absence of the prosecuting party from the proceedings (see Karelin v. Russia, no. 926/08, §§ 38-85, 20 September 2016)?
4. In case no. 1257/21 (events of 5 June 2020), was the applicant able to examine witnesses against them, as required by Article 6 § 3 (d) of the Convention (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100‑31, ECHR 2015)?
5. In case no. 3244/21, has the applicant suffered discrimination in the exercise of his rights under the Convention on the basis of sex, contrary to Article 14 of the Convention taken in conjunction with Article 8, insofar as under Article 3.9(2) of the CAO administrative arrest cannot be imposed on women with children under the age of fourteen, but can be imposed on men having children under the same age (compare to Alexandru Enache v. Romania, no. 16986/12, §§ 64-79, 3 October 2017)?
6. In cases nos. 1257/21 (events of 26 May and 25 June 2020) and 3244/21, did the absence of suspensive effect of an appeal against the sentence of administrative detention undermine the applicant’s right to have his conviction reviewed, as required by Article 2 of Protocol No. 7 to the Convention (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 179-91, 10 April 2018)?
7. In case no. 24699/21, the applicant is invited to provide a copy of his statement of appeal against the judgment of 12 August 2020.
APPENDIX
Application
no. Lodged on
Applicant name
Year of birth
Place of residence
Nationality
Representative
Date of a solo demonstration
Details
Conviction, sanction
Judgments’ dates
Courts
1257/21*
29/11/2020
Viktor Aleksandrovich NEMYTOV
1982
Moscow
Russian
Represented by:
Mansur Idrisovich GILMANOV
26/05/2020
Moscow
Solo demonstration in support of Mr. V. Vorontsov (administrator of a Telegram channel “Police Ombudsman”)
Initially, Article 20.2 § 8 of the CAO
(repeated breach of rules of a public event)
Fifteen days’ administrative arrest –
as amended on appeal:
offence re-qualified under
Article 20.6 § 1 of the CAO (breach of rules of conduct during a high alert regime),
arrest replaced by a fine of RUB 20,000
(applicant absolved from the payment, released from detention)
27/05/2020
Tverskoy District Court of Moscow
29/05/2020
Moscow City Court
05/06/2020
Moscow
Solo demonstration in support of Mr Azar. A part of the series of solo demonstrations, held on rotation basis by “at least ten persons” on that date
Article 20.2 § 8 of the CAO
Administrative fine of RUB 150,000
28/08/2020
Tverskoy District Court of Moscow
18/01/2021
Moscow City Court
25/06/2020
Moscow
Protest against amendments into the Russian Constitution
Article 20.2 § 8 of the CAO
Twenty days’ administrative arrest
26/06/2020
Tverskoy District Court of Moscow
30/06/2020
Moscow City Court
3244/21*
02/12/2020
Ilya Vilyamovich AZAR
1984
Moscow
Russian
Represented by:
Leonid Alekseyevich SOLOVYEV
26/05/2020
Moscow
Solo demonstration in support of Mr. V. Vorontsov and Mr. V. Nemytov
Article 20.2 § 8 of the CAO
Ten days’ administrative arrest
28/05/2020
Tverskoy District Court of Moscow
05/06/2020
Moscow City Court
24699/21
16/04/2021
Aleksandr Alekseyevich KOSTYUKHIN
1958
Borovichi
Russian
01/08/2020
Moscow
Solo demonstration in support of Mr S. Furgal (former Governor of the Khabarovsk Region)
Article 20.6.1 § 1 of the CAO
Administrative fine of RUB 15,000
12/08/2020
Tverskoy District Court of Moscow
28/10/2020
Moscow City Court
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