CASE OF NIKOLENKO AND OTHERS v. RUSSIA – 13679/18 and 20 others

Last Updated on September 7, 2023 by LawEuro

SECOND SECTION
CASE OF NIKOLENKO AND OTHERS v. RUSSIA
(Applications nos. 13679/18 and 20 others – see appended list)
JUDGMENT
STRASBOURG
7 September 2023

This judgment is final but it may be subject to editorial revision.

In the case of Nikolenko and Others v. Russia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Lorraine Schembri Orland, President,
Frédéric Krenc,
Davor Derenčinović, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 6 July 2023,

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. Some applicants also raised other complaints under various provisions of the Convention.

THE LAW

I. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. JURISDICTION

6. 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).

III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

7. 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, having dismissed the Government’s objection of non-exhaustion in applications nos. 39614/18, 45704/18 and 48549/19, and having taken into account the issue of compliance with the six-month time-limit under Article 35 § 1 of the Convention (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022, in which the Court addressed the COVID-related extension of the period in question), 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.

IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

12. 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, §§ 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); 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.

V. REMAINING COMPLAINTS

14. Some applicants raised further additional complaints under Articles 5 and 6 of the Convention concerning other aspects of their deprivation of liberty and fairness of the administrative-offence proceedings. 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.

15. The Court has further examined the rest of the complaints raised by the applicants and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

16. 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,

1. Decides to join the applications;

2. Holds that it has jurisdiction to deal with the applicants’ complaints as they relate to facts that took place before 16 September 2022;

3. 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, finds that there is no need to examine separately the remaining complaints under Articles 5 and 6 of the Convention, and declares the remainder of the applications inadmissible;

4. Holds that these complaints disclose a breach of Article 11 of the Convention;

5. Holds that there has been a violation of the Convention and the Protocols thereto as regards the other complaints raised under well-established case‑law of the Court (see appended table);

6. 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 7 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                    Lorraine Schembri Orland
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 charges	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)[i]
1.		13679/18 02/03/2018	Kirill Dmitriyevich NIKOLENKO 1989	Terekhov Konstantin Ilyich Moscow	Anticorruption rally Vladimir 12/06/2017	Article 20.2 § 2 of CAO	fine of RUB 20,000	Vladimir Regional Court 06/09/2017	Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	3,500
2.		39614/18 03/08/2018	Aleksandr Yuryevich ARTEMOV 1990	Eysmont Mariya Olegovna Moscow	Anti-corruption manifestation Moscow 12/06/2017 Rally in support of A. Navalnyy Moscow 31/01/2021	Article 20.2 § 6.1 of CAO Article 20.2 § 6.1 of CAO	fine of RUB 15,000 administrative detention of 7 days	Moscow City Court 06/02/2018 Moscow City Court 27/05/2021	Art. 5 (1) – unlawful deprivation of liberty – arrest, escorting to a police station, detention (i) on 12/06/2017 as administrative suspect, for drawing up a record of administrative offence; and (ii) between 6 p.m. on 31/01/2021 and 01/02/2021, as administrative suspect, “for compilation of administrative material”; no evidence/assessment of any “exceptional circumstances”, under the CAO, 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 the administrative-offence proceedings	5,000
3.		44996/18 14/09/2018	Vladislav Vladimirovich KULCHITSKIY 1997	Zhdanov Ivan Yuryevich Vilnius	Rally in support on A. Navalnyy Rostov-on-Don 24/12/2017	Article 20.2 § 3 of CAO	fine of RUB 15,000	Rostov Regional Court 19/03/2018	Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	3,500
4.		45058/18 12/09/2018	Olga Yuryevna KOMLEVA 1979	Zhdanov Ivan Yuryevich Vilnius	Opposition rally Ufa 28/01/2018 Rally against the pension reform Ufa 09/09/2018	Article 20.2 § 1 of CA Article 20.2 § 8 of CAO	fine of RUB 10,000 fine of RUB 75,000	Supreme Court of the Republic of Bashkortostan 14/03/2018 Supreme Court of the Republic of Bashkortostan 07/11/2018	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 the administrative-offence proceedings	4,500
5.		45704/18 22/09/2018	Dmitriy Yevgenyevich BOGATOV 1993		Anti-corruption rally Moscow 12/06/2017 Rally in support of A. Navalnyy Moscow 23/01/2021	Article 20.2 § 5 of CAO Article 20.2 § 5 of CAO	fine of RUB 15,000 fine of RUB 10,000	Moscow City Court 22/03/2018 Moscow City Court 13/05/2021	Art. 5 (1) – unlawful deprivation of liberty – arrest, escorting to a police station, detention (i) on 12/06/2017, and (ii) on 23/01/2021, each time for the sole purpose of drawing up an administrative offence record, 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 the administrative-offence proceedings	4,000
6.		54029/18 06/11/2018	Dmitriy Vladimirovich KALINYCHEV 1980		Boris Nemtsov memorial march Nizhniy Novgorod 25/02/2018 Event to protest against unfair elections (“Funeral of the elections”) Nizhniy Novgorod 11/03/2018 Rally against the pension reform Nizhniy Novgorod 09/09/2018	Article 20.2 § 8 of CAO Article 20.2 § 8 of CAO Article 20.2 § 2 of CAO	fine of RUB 150,000 administrative detention of 20 days administrative detention of 20 days	Nizhniy Novgorod Regional Court 01/08/2018 Nizhniy Novgorod Regional Court 10/05/2018 Nizhniy Novgorod Regional Court 14/11/2018	Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings – all sets of the 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 13/09/2018 was executed immediately, on account of the lack of suspensive effect of an appeal under the CAO	6,000
7.		55565/18 13/11/2018 and 52297/20 31/10/2020	Aleksandr Aleksandrovich SOFEYEV 1987	Sergeyeva Irina Vadimovna Moscow Solovyev Leonid Alekseyevich Moscow	Rally against the ban of the Telegram Messenger Moscow 16/04/2018 Rally against abusive criminal prosecution Moscow 03/02/2020 Event in support of LGBT community Moscow 07/10/2020	Article 20.2.2 § 1 of CAO Article 20.2 § 5 of CAO Article 20.2 § 8 of CAO	fine of RUB 10,000 fine of RUB 15,000 administrative detention of 30 days	Moscow City Court 30/05/2018 Moscow City Court 04/09/2020 Moscow City Court 13/10/2020	Art. 5 (1) – unlawful deprivation of liberty – (i) arrest, escorting to a police station and detention between 16/04/2018 and 17/04/2018 for the sole purpose of drawing up a record of administrative offence (such record was drawn up on 16/04/2018); (ii) arrest, escorting to a police station, detention between 08/10/2020 and 09/10/2020 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 (two sets of the administrative-offence proceedings, final judgments given on 30/05/2018 and 13/10/2020 respectively)	5,000
8.		11699/19 15/02/2019	Aleksey Yuryevich GOLYSHEV 1976	Pomazuyev Aleksandr Yevgenyevich Vilnius	Opposition rally Moscow 05/05/2018 Rally in support of A. Navalnyy Moscow 31/01/2021 Rally in support of A. Navalnyy Korolev, Moscow Region 21/04/2021	Article 20.2 § 5 of CAO Article 20.2 § 5 of CAO (first-instance court – proceedings discontinued by the court of appeal) Article 20.2 § 5 of CAO	fine of RUB 10,000 fine of RUB 10,000 (ordered by the first instance court – subsequently quashed, as proceedings discontinued by the court of appeal) fine of RUB 5,000	Moscow City Court 24/09/2018 Moscow City Court (administrative‑offence proceedings discontinued) 07/06/2021 Moscow Regional Court 27/05/2021	Art. 5 (1) – unlawful deprivation of liberty – arrest, escorting to a police station, detention (i) escorted and detained in a police station on 05/05/2018 as administrative suspect; (ii) on 31/01/2021, for drawing up a record of administrative offence; (iii) between 21/04/2021 and 23/04/2021, 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 – the first and the third sets of the administrative-offence proceedings (final judgments of 24/09/2018 and 27/05/2021)	5,000
9.		17792/19 18/03/2019	Timur Arturovich TUKHVATULLIN 2001	Sholokhov Igor Nikolayevich Kazan	Rally against the pension reform Kazan 09/09/2018	Article 20.2 § 5 of CAO	fine of RUB 10,000	Supreme Court of the Republic of Tatarstan 20/02/2019	Art. 5 (1) – unlawful deprivation of liberty – arrest, escorting to a police station, detention on 09/09/2018, in excess of three hours, for the sole purpose of drawing up a record of administrative offence	4,000
10.	28970/19 04/05/2019	Kirill Vladimirovich SEREBRENNIKOV 1996	Fedotova Yuliya Yevgenyevna Yekaterinburg	Rally against the pension reform Yekaterinburg 09/09/2018	Article 20.2 § 5 of CAO	fine of RUB 10,000	Sverdlovsk Regional Court 22/01/2019	Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	3,500
11.	30129/19 21/05/2019	Anatoliy Mariyevich SVECHNIKOV 1972		Rally against the pension reform Yekaterinburg 09/09/2018	Article 20.2 § 5 of CAO	fine of RUB 10,000	Sverdlovsk Regional Court 28/11/2018	Art. 5 (1) – unlawful deprivation of liberty – arrest, delayed escorting to a police station, detention on 09/09/2018 in excess of three hours, 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
12.	31511/19 28/05/2019	Natalya Sergeyevna PETERIMOVA 1987	Balog Natalya Andreyevna Krasnoyarsk	Rally against the pension reform Krasnoyarsk 09/09/2018	Article 20.2 § 5 of CAO	fine of RUB 15,000	Krasnoyarsk Regional Court 29/11/2018	Art. 5 (1) – unlawful deprivation of liberty – arrest, escorting to a police station, detention on 18/09/2018 for the sole purpose of drawing up a record of administrative offence; escort and arrest records not compiled, Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
13.	37262/19 16/03/2019	Anton Viktorovich STRUNIN 1982		Rally against the pension reform Penza 09/09/2018	Article 19.3 § 1 of CAO   and Article 20.2 § 1 of CAO	administrative detention of 10 days   and fine of RUB 14,000	Penza Regional Court 18/09/2018 and Penza Regional Court 04/04/2019	Art. 5 (1) – unlawful deprivation of liberty – arrest, escorting to a police station, detention between 11/09/2018 and 12/09/2018 as administrative suspect	5,000
14.	48549/19 28/08/2019	Petr Vladimirovich ABLIN 1981		Event against the pension reform Moscow 05/11/2018 Manifestation for fair elections to Mosgorduma Moscow 27/07/2019 Manifestation in support of A. Navalnyy Moscow 23/01/2021 Manifestation in support of A. Navalnyy Moscow 31/01/2021	Article 20.2 § 5 of CAO Article 20.2 § 5 of CAO Article 20.2 § 5 of CAO Article 20.2 § 5 of CAO	fine of RUB 15,000 fine of RUB 15,000 fine of RUB 20,000 fine of RUB 20,000	Moscow City Court 28/02/2019 Moscow City Court 14/10/2019 Moscow City Court 14/04/2021 Moscow City Court 08/04/2021	Art. 5 (1) – unlawful deprivation of liberty-arrest, escorting to a police station, detention on four occasions, each time for the sole purpose of drawing up a record of administrative offence: (i) on 05/11/2018, (ii) on 27/07/2019, in excess of three hours (the administrative offence record only drawn up on 31/07/2019), (iii) on 23/01/2021 (administrative offence record compiled only on 25/01/2021), and (iv) on 31/01/2021, in excess of three hours, and after the administrative-offence record had been drawn up, Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings – four sets of the administrative-offence proceedings	5,000
15.	56867/19 14/10/2019	Aleksandr Vladimirovich YUFRYAKOV 1958	Sholokhov Igor Nikolayevich Kazan	Rally against construction of a disposal site Arkhangelsk 07/04/2019	Article 20.2 § 6 of CAO	fine of RUB 14,000	Arkhangelsk Regional Court 18/06/2019	Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	3,500
16.	6884/20 28/01/2020	Aleksey Yuryevich CHERKES 1984	Memorial Human Rights Centre Moscow	Manifestation for fair elections to Mosgorduma Moscow 27/07/2019	Article 20.2 § 6.1 of CAO	fine of RUB 15,000	Moscow City Court 18/11/2019	Art. 5 (1) – unlawful deprivation of liberty – arrest and escorting to the police office, detention between 27/07/2019 and 29/07/2019 as administrative suspect (offence record compiled already on 27/07/2019), Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
17.	7523/20 29/01/2020	Yevgeniy Ivanovich SKACHKOV 1979	Memorial Human Rights Centre Moscow	Manifestation for fair elections to Mosgorduma Moscow 27/07/2019	Article 20.2 § 6.1 of CAO	fine of RUB 10,000	Moscow City Court 04/09/2019	Art. 5 (1) – unlawful deprivation of liberty – arrest, escorting to a police station, detention between 27/07/2019 and 29/07/2019 as administrative suspect; no evidence/assessment of any exceptional circumstances under the CAO, Art. 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000
18.	12207/20 27/02/2020	Aleksey Igorevich SEMENOV 1993	Memorial Human Rights Centre Moscow	Demonstration in support of Ivan Golunov Moscow 12/06/2019	Article 20.2 § 6.1 of CAO	fine of RUB 15,000	Moscow City Court 26/08/2019 (the final decision served on the applicant on the following day)	Art. 5 (1) – unlawful deprivation of liberty- arrest, delayed escorting to a police station, detention on 12/06/2019 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
19.	19605/20 25/03/2020	Nikolay Nikolayevich LYASKIN 1982	Pomazuyev Aleksandr Yevgenyevich Vilnius	Manifestation for fair elections to Mosgorduma Moscow 31/08/2019	Article 20.2 § 5 of CAO	fine of RUB 20,000	Moscow City Court 02/12/2019		3,500
20.	32691/20 02/07/2020	Vyacheslav Sergeyevich KUZNETSOV 1987	Memorial Human Rights Centre Moscow	Manifestation for fair elections to Mosgorduma Moscow 03/08/2019	Article 20.2 § 5 of CAO	fine of RUB 15,000	Moscow City Court 02/10/2019	Art. 5 (1) – unlawful deprivation of liberty – arrest, escorting to a police station, detention on 03/08/2019 for the sole purpose of drawing up a record of administrative offence; 6 (1) – lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings	4,000

[i] Plus any tax that may be chargeable to the applicants.