Last Updated on May 11, 2019 by LawEuro
Information Note on the Court’s case-law 223
November 2018
Navalnyy v. Russia [GC] – 29580/12, 36847/12, 11252/13 et al.
Judgment 15.11.2018 [GC]
Article 18
Restrictions for unauthorised purposes
Obstacles to freedom of assembly with a view to suppressing pluralism: violation
Article 11
Article 11-1
Freedom of peaceful assembly
Political activist repeatedly arrested and prosecuted for administrative offences related to the unlawfulness of public gatherings: violation
Article 46
Article 46-2
Execution of judgment
General measures
Respondent State required to take general measures to ensure that the legislative framework governing the exercise of the right to freedom of assembly did not represent a hidden obstacle to freedom of peaceful assembly
Facts – The applicant, a political opposition figure, was arrested seven times between 2012 and 2014 at various public gatherings and was prosecuted for administrative offences related to their formally unlawful nature.
In a judgment of 2 February 2017, referring to the previous case-law concerning similar Russian cases, a Chamber of the Court had held, in particular, that there had been a violation of Articles 11 and 5 § 1 of the Convention in respect of each of the episodes, but considered that it was not necessary to examine the case under Article 18. It had also concluded, unanimously, that there had been a violation of Article 6 § 1 of the Convention in six of the seven sets of proceedings for administrative offences, and no violation in the other. On 29 May 2017 the case was referred to the Grand Chamber at the request of both parties.
Law
Article 5 § 1: In the absence of reasons explaining why the arrests and detention were necessary in the light of the circumstances, the seven occasions when the applicant was arrested and the two occasions when he was placed in pre-trial detention had all amounted to arbitrary deprivation of liberty.
Conclusion: violation (unanimously), for each of the seven episodes.
Article 11: Article 11 was applicable to each of the seven episodes. There had indeed been an interference in the applicant’s exercise of his right to freedom of assembly.
(a) Legitimate aim – The Grand Chamber considered that the failure to pursue a legitimate aim was clearly apparent in the fifth and sixth episodes (while also expressing serious doubts as to its existence in respect of the other episodes):
– in the first case, the applicant was leaving the site of a static demonstration and was followed by a group of people, including journalists. The authorities perceived this as an “unauthorised march”, although the applicant had not manifested any intention of doing anything other than simply leaving the venue, and the group had not been formed on his initiative and was walking along the pavement;
– in the second instance, nothing in the case file suggested that the persons forming a group (described by the authorities as a “public gathering”) outside the courthouse had expected to be denied entry, or that they had planned to hold a demonstration if that happened. Although the group had indeed begun to shout political slogans, it did not appear that the applicant had himself shouted slogans or demonstrated an intention to hold a political rally. In any event, the traffic around the court building had already been blocked by the police.
(b) Proportionality – The five other arrests had taken place during public events conducted without notification or after the end of the authorised time slot. All of these events were peaceful gatherings which caused hardly any disturbance. As in a number of previous cases, the formal unlawfulness of the gathering had been put forward as the only justification. As no pressing social need had been demonstrated, the applicant’s arrest and sanction in each of the episodes appeared to be a disproportionate reaction.
In addition, there was a link between these failures and the previously observed structural inadequacy in the regulatory framework, which provided for excessively restrictive formal requirements for organising certain public gatherings. Apart from the broad interpretation of what constituted a gathering subject to notification, the lack of tolerance towards gatherings which did not comply with the procedure highlighted yet another dimension to this structural problem: the authorities’ excessively wide discretion in imposing immediate deprivation of liberty, and even sanctions of a criminal nature, in such cases. In consequence, it could not be said that the relevant national law provided effective safeguards against abuse.
Equally, the contested measures had a serious potential to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate; particularly as, in targeting a well-known public figure, they were bound to attract wide media coverage.
Conclusion: violation (unanimously), for each of the seven episodes.
Article 18: The complaint under this Article represented a fundamental aspect of the present case, sufficiently distinct from those already examined above.
The Court referred to the method set out in its judgment in Merabishvili v. Georgia [GC], while specifying that the predominant aim of the contested measures could have changed in the course of the period under consideration: what might possibly have seemed a legitimate aim or purpose at the outset could appear less plausible over time.
In the present case, the finding of a lack of legitimate aim in respect of the fifth and sixth episodes obviated the need for any discussion on a plurality of purposes for those episodes. Nonetheless, there was still a need to examine whether there was an identifiable “ulterior” purpose. In relation to the remaining episodes, the concept of plurality of purposes was still relevant.
A certain pattern could be discerned from the series of episodes: the applicant had been arrested seven times in a relatively short period and in a virtually identical manner, while exercising his Convention right to freedom of assembly.
The pretexts for the arrests had become progressively more implausible, whereas the degree of potential or actual disorder caused by the applicant had diminished. In particular, although in the first four episodes the applicant was one of the leaders of the gatherings, he had not played any special role in the subsequent episodes.
Moreover, in addition to the above-noted absence or highly questionable nature of a legitimate aim, the authorities must have been increasingly aware that the practices in question were incompatible with Convention standards. In this connection, regard had also to be had to the wider context, notably to the Court’s similar findings with regard to a demonstration held three months before the first of the seven episodes in the present case (see Navalnyy and Yashin v. Russia) and with regard to the shortcomings found in two sets of criminal proceedings which were being conducted against the applicant in parallel (see Navalnyy and Ofitserov v. Russia and Navalnyye v. Russia).
In addition, there was converging contextual evidence that the authorities were becoming increasingly severe in their response to the conduct of the applicant, in the light of his position as opposition leader, and of other political activists and, more generally, in their approach to public assemblies of a political nature. In addition to the legislative changes adopted during the period under consideration (which increased and expanded liability for a breach of the procedure for conducting public events), the subsequent introduction of other restrictions to the legislative framework on freedom of assembly could be considered indicative of a continuous trend. Several Council of Europe bodies had expressed their concerns about this matter.
It was also appropriate to have regard to the nature and degree of reprehensibility of the alleged ulterior purpose. At the core of the present complaint lay the applicant’s alleged persecution, not as a private individual, but as an opposition politician committed to playing an important public function through democratic discourse. As such, the restriction in question would have affected not merely the applicant alone, or his fellow opposition activists and supporters, but the very essence of democracy as a means of organising society, in which individual freedom could only be limited in the general interest, that is, in the name of the “higher freedom” referred to in the travaux préparatoires concerning Article 18.
In the light of all these elements, the Court found it established beyond reasonable doubt that the restrictions imposed on the applicant in the fifth and the sixth episodes pursued an ulterior purpose (which was of significant gravity), namely to suppress political pluralism, a hallmark of “effective political democracy” governed by “the rule of law”, both concepts referred to in the Preamble to the Convention. There had therefore been a violation of Article 18 in conjunction with both Article 5 and Article 11 of the Convention.
Conclusion: violation (fourteen votes to three).
Article 46: In view of the structural nature of the problem, the respondent State was to take appropriate legislative and/or other general measures to secure in its domestic legal order a mechanism requiring the competent authorities to have due regard to the fundamental character of the freedom of peaceful assembly and show appropriate tolerance towards unauthorised but peaceful gatherings causing only a certain disruption to ordinary life not going beyond a level of minor disturbance; they were to restrict this liberty only after having duly verified whether the restriction was justified by legitimate interests, such as the need for prevention of disorder or crime and for protection of the rights and freedoms of others; and they were to strike a fair balance between such interests, and those of the individual in exercising his or her right to freedom of peaceful assembly. Furthermore, particular justifications had to be required for any imposition of sanctions.
The prevention of similar violations in the future was to be addressed in the appropriate legal framework, in particular ensuring that the national legal instruments pertaining to the restrictions and the modalities of the exercise of the right to freedom of assembly did not represent a hidden obstacle to the freedom of peaceful assembly protected by Article 11 of the Convention.
Article 41: EUR 50,000 in respect of non-pecuniary damage; EUR 1,025 in respect of pecuniary damage.
The Court also concluded, unanimously, that there had been a violation of Article 6 § 1 in six of the seven sets of proceedings for administrative offences, and no violation in the other.
(See Merabishvili v. Georgia [GC], 72508/13, 28 November 2017, Information Note 212; Navalnyy and Yashin v. Russia, 76204/11, 4 December 2014, Information Note 180; Navalnyy and Ofitserov v. Russia, 46632/13 and 28671/14, 23 February 2016, Information Note 193; and Navalnyye v. Russia, 101/15, 17 October 2017. See also the Guide on Article 18 of the Convention)
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