Last Updated on April 7, 2019 by LawEuro
Overview of the Case-law of the ECHR 2018
Freedom of assembly and association (Article 11)
Freedom of peaceful assembly
In Navalnyy v. Russia[142], the applicant was a political activist, anti-corruption campaigner and popular blogger, as well as one of the most significant opposition figures in Russia. This case concerns seven occasions, between March 2012 and February 2014, when he was arrested, provisionally detained and convicted of administrative offences on account of his alleged participation in unauthorised but peaceful public gatherings. On the fifth occasion, the applicant was penalised when he left a stationary demonstration in a group of people. On the sixth occasion, he found himself in a group of activists in front of a courthouse because they had been denied entry to the court hearing.
The Grand Chamber found violations of Articles 5 and 6: his detention had been unjustified and arbitrary (Article 5) and the findings in six of the seven proceedings were not based on an acceptable assessment of the facts (Article 6). It also found a violation of Article 11. The Grand Chamber found that the Article 18 complaint required a separate examination and that it had been violated. Finally, indications on general measures to be adopted were provided under Article 46 of the Convention.
(i) Two points concerning the Court’s approach to Article 11 are worth noting.
– The Grand Chamber examined separately the legitimate aim(s) pursued by the authorities. While it had serious doubts that any legitimate aim had been served by five of the arrests, it found a violation of Article 11 because the fifth and sixth arrests were not found to have pursued a legitimate aim. This case is therefore one of those rare cases[143] where the absence of a legitimate aim constituted, of itself, a violation of the Convention.
– The remaining five arrests were found by the Grand Chamber to be disproportionate restrictions of the applicant’s right to freedom of assembly under Article 11 of the Convention. This violation was based on familiar reasoning concerning a lack of tolerance by the authorities of unauthorised but peaceful demonstrations[144]. However, the Grand Chamber also went on to broaden the focus of its findings. It considered that these five episodes were indicative of a persistent failure by the authorities to show the tolerance required, despite a clear line of Court judgments against Russia setting out those requirements, including judgments delivered before the present arrests. This lack of tolerance was considered to constitute another dimension of the previously identified structural inadequacy[145] of the regulatory framework which failed to provide effective legal safeguards against arbitrary interferences with the right to freedom of assembly. That domestic law failed to provide effective safeguards was further exemplified by the finding in the present case that no legitimate aim had been pursued by two of the arrests.
(ii) In addition, this is the first time the Court has found a violation of Article 18 in conjunction with an Article (Article 11) other than Article 5 of the Convention. This combination is possible since Article 11 permits restrictions of the kind to which Article 18 refers.
(iii) Finally, and of particular relevance to the respondent State, the Grand Chamber indicated under Article 46 certain general measures to be taken. It drew on a pattern of similar violations cited and established in Lashmankin and Others, on the violation of Article 11 in the present case (linked as it was to the structural inadequacy of the regulatory framework), as well as on the findings under Article 18 of the Convention. It called for the adoption by the respondent State of, inter alia, appropriate legislative and/or other general measures to secure a domestic mechanism requiring the competent authorities to have due regard to, notably, the fundamental character of the freedom of peaceful assembly and to show appropriate tolerance towards unauthorised but peaceful gatherings which did not cause disruption to ordinary life going beyond the level of minor disturbance.
_____________________
142. Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, 15 November 2018. See also under Article 18 (Restrictions not prescribed by the Convention) below.
143. As cited in Merabishvili v. Georgia [GC], no. 72508/13, 28 November 2017; Khuzhin and Others v. Russia, no. 13470/02, 23 October 2008; Nolan and K. v. Russia, no. 2512/04, 12 February 2009; P. and S. v. Poland, no. 57375/08, 30 October 2012; and Karajanov v. the former Yugoslav Republic of Macedonia, no. 2229/15, 6 April 2017.
144. For example, Malofeyeva v. Russia, no. 36673/04, 30 May 2013; Kasparov and Others v. Russia, no. 21613/07, 3 October 2013; Navalnyy and Yashin v. Russia, no. 76204/11, 4 December 2014; Novikova and Others v. Russia, nos. 25501/07 and 4 others, 26 April 2016; and Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, 7 February 2017.
145. See, in particular, Lashmankin and Others, cited above, §§ 471-77.
Leave a Reply