Last Updated on May 11, 2019 by LawEuro
Communicated on 20 November 2018
THIRD SECTION
Application no. 67200/12
Ivan Sergeyevich BODALEV
against Russia
lodged on 13 September 2012
SUBJECT MATTER OF THE CASE
On 4 December 2011 the applicant took part in a protest rally. Using a loudspeaker the police indicated that this public assembly was unlawful but did not issue any specific order, for instance an order to disperse voluntarily as required by the Public Events Act (PEA). Instead, the police proceeded with a forcible dispersal and arrests. The applicant was then sentenced to small fines under Articles 19.3 § 1 and 20.2 § 2 of the Code of Administrative Offence (CAO).
The applicant was sentenced to eleven days of detention under Article 19.3 § 1 of the CAO on account of the refusal to comply with the order to disperse in relation to another protest rally on 6 December 2011.
On 26 December 2012 several people staged a “performance” aimed at “reviving” the Russian Constitution and consisting of a coffin filled with the brochures containing its texts, and a speech. The applicant held a poster and uttered several slogans. After the end of the performance, he was arrested and later on sentenced to a fine under Article 20.2 of the CAO for participating in a “public event” falling within the scope of the PEA.
On 31 December 2012 the applicant was arrested during a rally, allegedly, prior to hearing and, a fortiori, disobeying any specific order from the police. He was then sentenced to fines under Articles 19.3 § 1 and 20.2 § 2 of the CAO.
On 5 April 2013 the applicant took part in a public assembly. A judge then refused to examine a case against him under Article 19.3 of the CAO for the alleged failure to disperse, noting that the available video recording did not show that any such specific order had been given. However, in separate proceedings the applicant was sentenced to a fine under Article 20.2 § 5 of the CAO on account of him continuing to “run” the non‑notified assembly, despite being informed that it was unlawful and despite the police order to disperse.
On 27 June 2013 the applicant and another person climbed onto the balcony at the second floor of the local office of the Federal Migration Service Office (FMS), shouting some slogans and brandishing a poster. The applicant was then sentenced to a fine for participation in a group picketing, which had not been notified (by its organiser) to the competent authority in breach of the PEA.
QUESTIONS tO THE PARTIES
1. As regards the protest rally on 6 December 2011, was there a violation of Article 11 of the Convention on account of the termination of the applicant’s participation in it, his arrest from 6 to 7 December 2011 and the sentence of detention? In particular:
(a) Was the above “interference” “prescribed by law”, namely as regards compliance with the procedure in sections 15-17 of the PEA (see Novikova and Others v. Russia, nos. 25501/07 and 4 others, §§ 112-20, 26 April 2016, and Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 460‑63, 7 February 2017)? In particular, did an official of a municipal or regional administrative authority issue a reasoned oral (and then written) decision to terminate the public event, as required by section 17 § 1 of the PEA? Did the event’s organiser refuse to comply with it, which then prompted the police intervention? Did the police give and then reiterate to the event participants, including the applicant, any specific order and reasonable time to comply with it?
(b) Was the “interference” “necessary in a democratic society” in pursuance of a legitimate aim (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 151, ECHR 2015; Novikova and Others, §§ 161-175; and Lashmankin and Others, §§ 460-63, both cited above)? In particular:
– Did Russian law envisage such legitimate aims as prevention of disorder or crime or protection of public safety (see Article 55 § 3 of the Russian Constitution and section 1 of ruling no. 28 of 26 June 2018)?
– Did any domestic authority determine whether the dispersal was an appropriate response on account of compelling circumstances, beyond the consideration that the rally was not notified, that is in breach of the PEA?
(c) The Government are requested to submit the written order(s) issued in compliance with section 17 § 1 of the PEA.
2. Having regard, inter alia, to considerations mentioned under question no. 2 (a)-(c) above, were there violations of Articles 10 or 11 of the Convention on account of the termination of the applicant’s participation in the rallies on 31 December 2012 and 5 April 2013 and the fines imposed on him?
3. Was there a violation of Article 11 of the Convention on account of the termination of the applicant’s participation in the rally on 4 December 2011, his arrest and detention until and on 5 December 2011 and his prosecution for the administrative offences?
4. As to the “performances” on 26 December 2012 and 27 June 2013, was there a violation of Article 10 of the Convention? In particular, was it foreseeable that such “performance” would be classified as a “public event” (публичное мероприятие) in the form of a group picketing as to 27 June 2013, thus making the applicant’s and his co-performers’ expressive conduct fall within the scope of the PEA and punishable under the CAO?
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