Communicated on 12 September 2019
THIRD SECTION
Applications nos. 29356/19 and 31119/19
Vladimir Vladislavovich PLESHKOV against Russia
and Svetlana Nikolayevna ASTRAKHANTSEVA and Others against Russia
lodged on 16 May 2019 and 25 May 2019 respectively
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.Application no. 29356/19 Pleshkov v. Russia
On 5 October 2018 the applicant notified the Prefect of the Central Administrative District of Moscow of his intention to hold a “picket” (пикетирование) from noon to 3 p.m. on 11 October 2018 in front of the State Duma building in central Moscow, which twenty people were expected to attend. The aim of the event was to protest against the increase in State pension age recently voted by the State Duma.
On the same day a deputy Prefect of the Central Administrative District of Moscow refused to approve the venue chosen by the applicant, finding that it was unsuitable for public events as it would be impossible to meet safety requirements there. In particular, the picket might result in “disruption to the functioning of public utilities, transport, social or communications services, obstruction of pedestrian traffic or breach of the rights and interests of citizens who did not participate in the notified event”. She proposed that the “picket” be held in Lermontov Park.
The applicant challenged before the Taganskiy District Court of Moscow the deputy Prefect’s decision refusing to approve the location of the “picket”. He submitted, in particular, that the pedestrian pavement in front of the State Duma was large enough to allow for the “picket” to take place without any obstruction of the pedestrian traffic or access to the State Duma.
On 10 October 2018 the Taganskiy District Court rejected the applicant’s complaint. After citing the applicable domestic provisions and the Constitutional Court’s decision of 2 April 2009 (see a summary of that decision in Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 255-59, 7 February 2017), the court held:
“The court agrees with the justification for [the Prefect’s] proposal to change the location of the notified public event. It is commonly known – and does not therefore have to be demonstrated ... – that pedestrian and vehicle traffic at the location chosen by the organiser of the public event (Okhotnyy Ryad Street in Moscow) is intensive. The court takes into account that human life and health are supreme values. The court is therefore convinced that [the Prefect’s] finding that the location in question is unsuitable for public events is justified, as public events there might endanger the safety of the participants of public events, as well as of persons who do not take part in them. It therefore meets the requirements of section 8 of the Public Events Act.
The plaintiff’s notification has been examined in accordance with the established procedure. He has been given a decision in writing within the established time-limit which mentions the reasons explaining why it is impossible to hold public events at the chosen location and time. The plaintiff has not been deprived of an opportunity to enjoy his constitutional right to hold a public event in accordance with the procedure established by [the Public Events Act] by choosing another location for public events, including the location proposed by [the Prefect]. The participants’ right to express opinions during public events and to voice demands on issues related to political, economic, social or cultural life in the country has not been restricted.”
On 11 October 2018 the Moscow City Court upheld the judgment on appeal. It held:
“Pursuant to Articles 218 § 1 and 227 § 2 of the Code of Administrative Procedure, an administrative complaint under section 22 of the Code is allowed only when it satisfies the following necessary conditions: there are circumstances showing that the contested decision, act or omission is unlawful and the complainant’s rights or freedoms has been breached as a result of such decision, act or omission. The burden of proof is on the plaintiff to show that his rights and freedoms have been breached by the contested decision, act or omission and that he has complied with the time-limit for lodging the complaint. The respondent has to prove that its decision, act or omission is lawful ...
The [District] Court has found that the authorities’ decision was lawful and well‑reasoned ... The [Regional] Court considers that this finding is correct and sufficiently reasoned ...
The [Regional] Court notes that, by decision of 5 October 2018, the organiser of the public event was informed about the reasons why it was not possible to hold the public event at the chosen location.
A regional public authority has competence under section 12 [of the public Events Act] to make to the organiser of a public event a well-reasoned proposal to change its location. Moreover, the plaintiff was not prohibited from holding a public event; he was proposed an alternative location accessible to the public.
The [Regional] Court therefore concludes that the contested decision by the respondent was within its statutory powers; the procedure for adopting it was complied with; there were reasons for adopting that decision; its content meets the applicable statutory requirements.”
On 25 January 2019 a judge of the Moscow City Court refused to refer a cassation appeal lodged by the applicant with the Presidium of that court for examination. She referred, in particular, to Plenary Supreme Court Ruling no. 28 of 26 June 2018 (see a summary of that Ruling in Kablis v. Russia, nos. 48310/16 and 59663/17, §§ 29-33, 30 April 2019). She then summarised the District and Regional Courts’ reasoning and held that it was correct.
On 17 April 2019 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s cassation appeal for consideration by the Civil Chamber of the Supreme Court, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings.Application no. 31119/19 Astrakhantseva and Others v. Russia
The applicants, human rights activists, are represented before the Court by Ms I. Sergeeva and Mr N. Zboroshenko, lawyers practising in Moscow.
On 10 December 2018 the applicants notified the Moscow Government of their intention to hold a meeting from 2 to 5 p.m. on 22 December 2018 in Pushkin Square in central Moscow, which 1,000 people were expected to attend. The aim of the event was to mark an anniversary of a protest held at that same location on 5 December 1965 and to call the authorities to respect the rights to freedom of expression and assembly. The applicants engaged not to disturb traffic.
On 12 December 2018 the Moscow Regional Department for Safety informed the applicants that another public event was scheduled to take place in Pushkin Square on the same day and proposed that the applicants’ meeting be held in the special location for public events in Sokolniki Park.
On 13 December 2018 the applicants submitted to the Government of Moscow written “suggestions for an agreement”. They explained that the location in Pushkin Square was very important for them because the protest of 5 December 1965 had been held at that location and that the alternative location proposed by the authorities was incompatible with the event’s purposes as it was far away from the headquarters of the public authorities which were the targets of the event’s intended message. They asked for further information about the event planned in Pushkin Square on 22 December 2018, and in particular about its time-frame and the contact details of its organisers. They also asked that the Government of Moscow propose a time that would not coincide with the other event, or for assistance with negotiating with the organisers of the other event.
The applicants have not received any reply.
On the same day they also challenged the refusal to approve the public event before the Tverskoy District Court of Moscow. They submitted that the refusal had not been sufficiently reasoned. In particular, the Moscow Government had not explained why it was not possible to hold the two events simultaneously. Nor had it mentioned at which time the other event was planned and why it would not be possible to hold the applicants’ event before or after the other event. They again stressed that Pushkin Square was the only location that permitted to attain the event’s purposes. They also relied on Plenary Supreme Court Ruling no. 28 of 26 June 2018 (see a summary of that Ruling in Kablis, cited above, §§ 29-33), and in particular on the Ruling’s requirements that any interference by a public authority with the right to freedom of public assembly had to be lawful, necessary and proportionate to a legitimate aim and be justified through submission of evidence of specific facts making it impossible to hold the public event at the chosen location or time.
On 20 December 2018 the Tverskoy District Court rejected the applicants’ complaint. After citing Article 11 of the Convention, the applicable domestic provisions and Plenary Supreme Court Ruling no. 28 of 26 June 2018, the court held:
“... regional and local law-enforcement authorities have an obligation to ensure public order and safety during public events. They should take these circumstances, among others, into account when proposing to change the location of a public event, by giving reasons for their decision.
The court has established that the law-enforcement authorities complied with the above statutory requirements ... It follows from the case materials that the plaintiffs’ rights have not been breached.”
The court then noted that according to information from the Government of Moscow New Year celebrations were planned in Pushkin Square from 7.30 a.m. to 8 p. m. on 22 December 2018. Moreover, the location chosen by the applicants was in the proximity of a historical monument, namely Pushkin monument. Given frequent occurrences of damage to the monument, it would be necessary to install temporary protective barriers to prevent participants’ access to the monument.
The court further continued:
“... the respondent therefore complied with its obligation to submit to the court evidence of specific facts making it impossible to hold the public event at the chosen location or time. The law does not provide for any obligation to submit such evidence to the organisers of public events.
... The court does not have any reasons to believe that it will not be possible to attain the event’ purposes at other locations.
The plaintiffs’ arguments about the restriction of their right to freedom of assembly cannot be taken into account as they are based on their erroneous belief that their rights may not be restricted ...
The law-enforcement authorities complied with the statutory prohibition to put public order and safety of citizens in risk in case of holding the public event at the same location where a popular cultural event had been already approved. They therefore complied with the requirements of international law.
At the same time, the plaintiffs’ disregard for that statutory prohibition may be considered to amount to an abuse of rights that is not subject to judicial protection.”
On the same day the applicants appealed, extensively relying on the Court’s findings in the case of Lashmankin and Others (cited above).
On 21 December 2018 the Moscow City Court upheld the judgment on appeal. It endorsed the District Court’s reasoning and added:
“The appellants’ arguments that the law-enforcement authorities had not verified whether it was possible to hold the two events simultaneously do not warrant the quashing of [the District Court’s] judgment because they contradict the established circumstances of the case.
It follows from the case file that before sending a reply to the organisers of the event, the respondent had received information from the office of the Prefect of the Central Administrative District of Moscow, the Moscow Department of Cultural Heritage and the Moscow Department of Commerce.
According to attachment no. 5, the celebrations in Pushkin Square will occupy 3,000 sq. m., which makes it impossible to hold the applicants’ public event.
[The Appellate Court] concludes that the contested decision by the respondent was within its statutory powers; the procedure for adopting it was complied with; there were reasons for adopting that decision; its content meets the applicable statutory requirements”.Relevant domestic law
For a summary of the domestic provisions on the procedure for the notification and conduct of public events, on relevant judicial review procedures and on the liability for breaches committed in the course of public events, see Lashmankin and Others (cited above, §§ 216 - 312).
For a summary of the subsequent developments, see Kablis (cited above, §§ 29-33)
COMPLAINTS
The applicants complain under Articles 10 and 11 of the Convention about the restrictions imposed by the authorities on the locations of their public events. They also complain under Article 13 of the Convention that they did not have an effective remedy in that respect. Mr Pleshkov also complains under Article 14 of the Convention taken in conjunction with Articles 10 and 11 that he was discriminated against on the grounds of his political opinion.
QUESTIONS TO THE PARTIES
1. The parties are requested to submit copies of Mr Pleshkov’s complaint to the Taganskiy District Court of Moscow and of his appeal and cassation complaints.
2. Did the domestic authorities’ decisions refusing to approve the locations chosen by the applicants for their public events violate the applicants’ right to freedom of peaceful assembly, contrary to Article 11 of the Convention, interpreted in the light of Article 10 of the Convention (see Lashmankin and Others v. Russia, no. 57818/09 and 14 others, §§ 402‑78, 7 February 2017)?
3. Did the applicants have an effective remedy in respect of their complaints under Article 11 of the Convention, as required by Article 13 of the Convention? In particular, does the scope of judicial review under the Code of Administrative Procedure, as interpreted by Plenary Supreme Court Ruling no. 28 of 26 June 2018, include an assessment of “necessity in a democratic society” and “proportionality” of the local authorities’ proposal to change the location of a public event (compare with Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 352-60, 7 February 2017; and, in particular, Kablis v. Russia nos. 48310/16 and 59663/17, §§ 64-72, 30 April 2019)? The Government are requested to provide examples of administrative and judicial practice applying the requirements of Plenary Supreme Court Ruling no. 28 of 26 June 2018, and in particular the requirements concerning the assessment of “necessity in a democratic society” and “proportionality” of the local authorities’ proposal to change the location of a public event.
4. Was Mr Pleshkov subjected to discrimination on account of his political opinion, contrary to Article 14 of the Convention read in conjunction with Articles 10 and 11?
APPENDIX
Application no. 29356/19
No.
Applicant’s Name
Birth date
Nationality
Place of residence
1
Vladimir Vladislavovich PLESHKOV
24/11/1964
Russian
Moscow
Application no. 31119/19
No.
Applicant’s Name
Birth date
Nationality
Place of residence
1
Svetlana Nikolayevna ASTRAKHANTSEVA
09/06/1975
Russian
Moscow
2
Alla Igorevna FROLOVA
02/01/1965
Russian
Moscow
3
Svetlana Alekseyevna GANNUSHKINA
06/03/1942
Russian
Moscow
4
Nikolay Yuryevich KAVKAZSKIY
16/10/1986
Russian
Moscow
5
Oleg Aleksandrovich YELANCHIK
21/05/1990
Russian
Moscow
6
Natalya Alekseyevna ZVYAGINA
24/11/1981
Russian
Voronezh
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