{"id":18137,"date":"2022-03-01T19:05:37","date_gmt":"2022-03-01T19:05:37","guid":{"rendered":"https:\/\/laweuro.com\/?p=18137"},"modified":"2022-03-01T19:05:37","modified_gmt":"2022-03-01T19:05:37","slug":"case-of-raymov-and-ryabenko-v-russia-european-court-of-human-rights-59770-18-and-1038-19","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=18137","title":{"rendered":"CASE OF RAYMOV AND RYABENKO v. RUSSIA (European Court of Human Rights) 59770\/18 and 1038\/19"},"content":{"rendered":"

THIRD SECTION
\nCASE OF RAYMOV AND RYABENKO v. RUSSIA<\/strong>
\n(Applications nos. 59770\/18 and 1038\/19)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n1 March 2022<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Raymov and Ryabenko v. Russia,<\/strong><\/p>\n

The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n

Darian Pavli, President,
\nPeeter Roosma,
\nMikhail Lobov, judges,
\nand Olga Chernishova, Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the applications (nos.\u00a059770\/18 and 1038\/19) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) (see the appended table);<\/p>\n

the decision to give notice of the applications to the Russian Government (\u201cthe Government\u201d), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr\u00a0M. Vinogradov;<\/p>\n

the decision to dismiss the Government\u2019s objection to the examination of the case by a Committee;<\/p>\n

the Government\u2019s observations;<\/p>\n

Having deliberated in private on 1 February 2022,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT-MATTER OF THE CASE<\/strong><\/p>\n

I. \u201cHybrid\u201d public event on 5 May 2018<\/strong><\/p>\n

1. Mr A.\u00a0Navalnyy launched a nationwide campaign called \u201cHe is not our Tsar\u201d consisting of holding, on 5\u00a0May 2018, rallies to protest against the forthcoming inauguration of Mr V.\u00a0Putin as the President of the Russian Federation after the election on 18 March 2018. Ms P. notified the Cheboksary town administration of her intention to hold a public event in the form of a march and a meeting. The town administration informed Ms P. that the itinerary for the march included areas where public events were not allowed under the regional legislation (see paragraph 6 below). The town administration invited Ms P. to hold a meeting instead of the planned event, and to do it in one of the specially designated areas approved by the regional government in its Decree no. 598 of 26 December 2012, specifically at Sosnovskaya Street next to a church, a local police station and a children\u2019s park. Ms P. replied, indicating her disagreement. According to the applicants, while the venue mentioned by the town administration remained within the town borders, the distance between it and the initially proposed venue amounted to some fifty kilometres, it had a poor transport and public infrastructure which would have been impracticable for the presence of hundreds of participants. Subsequently, the administration\u2019s decision was upheld on judicial review.<\/p>\n

2. On 5 May 2018 people assembled into a non-approved rally, albeit in a different manner as compared to the notice lodged by Ms P. At 2 p.m. at Respublika Square,\u00a0according to the applicants, the police ordered the demonstrators to cease the meeting, threatening them with use of force. The demonstrators then started to move through the main town streets, walking on the pavements (to avoid disruption of traffic) and were followed by the police. At Chapayev Square they were met by another police squad and dispersed.<\/p>\n

3. According to the authorities, the applicants did not comply with the police order to cease participation in the meeting at Respublika Square. Then, from 2.30\u00a0to 4 p.m., at Chapayev Square they participated in what the authorities and the courts classified as a \u201cdemonstration\u201d under the Public Events Act (see below). They did not comply with the police order to cease participation in that demonstration.<\/p>\n

4. At both venues the police made several warnings informing the demonstrators of the unlawful nature of their presence in a public place and required them to cease their unlawful activities.<\/p>\n

II. Proceedings against the applicants<\/strong><\/p>\n

A. Mr Raymov<\/strong><\/p>\n

5. On 15 May 2018 the Leninskiy District Court of Cheboksary examined, at two hearings, two separate cases concerning the applicant\u2019s participation in the meeting and the demonstration. In each case he was convicted under Article\u00a020.2 \u00a7 5 of the CAO and was sentenced to fines of 10,000 and 20,000 Russian roubles (RUB; approximately 135 and 270 euros at the time).\u00a0The applicant appealed, arguing that he had exercised his freedom of peaceful assembly by taking part in one single event. It had been unjustified to prosecute and punish him separately for two parts of the same event. On 5\u00a0June 2018 the Supreme Court of the Chuvashiya Republic held appeal hearings in each case and upheld the trial judgments, stating that the applicant had violated section 6 \u00a7 3 of the PEA because he had not complied with the orders to disperse that had been given during the meeting and demonstration; and that the applicant had been prosecuted for different facts.<\/p>\n

6. In a separate (third) set of proceedings the applicant was convicted under Article 19.3 of the CAO in relation to his non-compliance with the order to disperse during the meeting on 5 May 2018. The appeal court set aside that judgment and discontinued the proceedings for lack of corpus delicti, pursuant to a recent resolution by the Plenary Supreme Court of the Russian Federation on the application of the lex specialis rule in cases concerning rallies (see Korneyeva v. Russia, no. 72051\/17, \u00a7\u00a7 25 and 60, 8\u00a0October 2019).<\/p>\n

B. Mr Ryabenko<\/strong><\/p>\n

7. On 9 June 2018 the District Court examined the charges under Article\u00a019.3 and Article 20.2 \u00a7 5 of the CAO on account of his participation in the meeting on 5 May 2018. The applicant was sentenced to a fine of RUB\u00a010,500. The court took note of the existence of a final decision by which the town administration\u2019s reply to Ms\u00a0P.\u2019s notice had been upheld on judicial review (see paragraph 1 above); that the applicant had taken part in \u201ca non\u2011notified public event consisting of a meeting, which had then transformed into a demonstration\u201d; and that he had not complied with the repeated orders from the police requiring the termination of that event. The court also stated as follows:<\/p>\n

\u201cThe court takes into account that the event\u2019s organisers had defined its topic as protection of citizen\u2019s rights while the slogans and speeches during the event were in breach of that topic; in substance they amounted to negative assessment of the person who had been elected to the post of the President of the Russian Federation, and did not contain an indication of any civic views or deficiencies in the functioning of the State or proposals for improvements.\u201d<\/p>\n

8. In separate proceedings, on 9 June 2018 the District Court convicted the applicant under Article 20.2 \u00a7 5 of the CAO on account of his participation in the demonstration. He was sentenced to up to twenty hours of community work.<\/p>\n

9. On 10 July 2018 the Supreme Court of the Chuvashiya Republic reviewing the judgment described in paragraph 7 above, set aside the conviction under Article\u00a019.3 of the CAO, upheld the conviction for the offence under Article 20.2 of the CAO relating to the meeting and reduced the fine to RUB\u00a010,000.\u00a0On the same date the same judge also examined the applicant\u2019s appeal against the judgment relating to the demonstration (see paragraph 8 above). He upheld it, considering that\u00a0the applicant had violated section\u00a06\u00a0\u00a7\u00a03\u00a0(1) of the PEA; that\u00a0the applicant had committed a serious breach of public order and public safety; his actions had entailed consequences consisting of the presence of numerous people on the pavements in the town centre and near buildings hosting public authorities; thereby he had impeded the movement of pedestrians and had \u201ccreated a real threat\u201d of interfering with the authorities\u2019 functioning and the other people\u2019s rights.<\/p>\n

RELEVANT LEGAL FRAMEWORK AND PRACTICE<\/strong><\/p>\n

10. The Federal Law no.\u00a054-FZ of 19 June 2004 (\u201cthe Public Events Act\u201d or \u201cPEA\u201d) defines a \u201cpublic event\u201d as an open, peaceful action accessible to all, held in the form of a gathering, a meeting, a demonstration, a march, or a \u201cpicket\u201d or in various combination of these forms (section 2). Pursuant to sections 5 and 7 of the Act, the organiser of a public event must\u00a0notify the executive or municipal authority of the event; the procedure for such notification is determined by a regional statute (see Navalnyy v. Russia [GC], nos. 29580\/12 and 4 others, \u00a7 45, 15 November 2018).<\/p>\n

11. Under the Chuvashiya Republic\u2019s Statute no. 77 of 30 November 2012, public events were prohibited at all the locations mentioned in the federal law (specifically, section 8 of the PEA) as well as at\/near shopping malls or markets and within fifty meters of them; buildings hosting educational, children-related, cultural, medical or sports institutions and, until 2020, within fifty meters of those buildings;\u00a0sports areas and children\u2019s playgrounds;\u00a0religious buildings or objects and, until 2020, within fifty meters of them;\u00a0buildings hosting municipal and public authorities and, until 2020, within thirty meters of them; and\u00a0entrances to residential buildings (if less than five meters).<\/p>\n

THE LAW<\/strong><\/p>\n

I. JOINDER OF THE APPLICATIONS<\/p>\n

12. Having regard to the similar subject matter of the applications, the Court decides to examine them jointly in a single judgment.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION on account of administrative convictions<\/p>\n

13. The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. It must therefore be declared admissible.<\/p>\n

14. An \u201cinterference\u201d infringes Article 11 of the Convention unless it satisfies the requirements of paragraph 2 of that Article.<\/p>\n

A. Prescribed by law<\/strong><\/p>\n

15. The Court notes that the factual elements in the file strongly indicate that the event of 5 May 2018 has been seen by its organisers, the authorities and participants as a single public event (see paragraph 1 above). The applicants were convicted for failing to comply with the police orders to cease their participation in that non-approved event. No other act was held against them under Article 20.2 \u00a7 5 of the CAO together with section 6 \u00a7 3 of the PEA.<\/p>\n

16. The Public Events Act expressly provided for a possibility to hold or participate in what could be classified as a hybrid public event. That type of event could, for instance, include movement of demonstrators from one venue to another. The Government have not referred to any other regulations or jurisprudence clarifying the approach concerning a hybrid event.<\/p>\n

17. Having said this, in view of the findings below concerning the \u201cnecessity\u201d of the convictions, in the present case the Court leaves open the question of whether it was foreseeable to the applicants that they would be prosecuted, in separate proceedings, under Article 20.2 of the CAO on account of their non-compliance with the police order to disperse issued after the meeting and what was then classified as a separate non-approved demonstration.<\/p>\n

B. Pursuing a legitimate aim and necessary in a democratic society<\/strong><\/p>\n

18. The relevant general principles are well established in the case-law (see Kudrevi\u010dius and Others v. Lithuania [GC], no. 37553\/05, \u00a7\u00a7\u00a0142-60, ECHR 2015; Lashmankin and Others v. Russia, nos. 57818\/09 and 14 others, \u00a7 142, 7\u00a0February 2017; and Navalnyy v. Russia [GC], nos. 29580\/12 and 4\u00a0others, \u00a7 128, 15 November 2018).<\/p>\n

19. The applicants were not in charge of organising or running any assembly on 5 May 2018, and, a fortiori, did not intentionally fail to abide by the requirement to lodge a prior notice about a planned event. They were convicted as ordinary demonstrators. The event and their participation in it were peaceful. The only specific act held against them was their non\u2011compliance with an order to disperse that was issued solely on the basis that that event had not received official approval from the competent authority.<\/p>\n

20. The courts did not substantiate that there had been any real risk of disruption to ordinary life due to the actions of the applicants or their fellow protestors that, in the concrete circumstances, would have exceeded the level of minor disturbance that follows from normal exercise of the right of peaceful assembly in a public place. There were no signs of an imminent outbreak of violence or increase in the level of disturbance. The courts did not ascertain that, in exercising the discretion afforded to them by the domestic law by way of issuing orders to disperse, the police had acted in a manner compatible with the essence of the right to freedom of peaceful assembly, and with due recognition of the privileged protection under the Convention of political speech, debate on questions of public interest and the peaceful expression of opinions on such matters. Nor does it appear that the courts in the CAO cases struck a fair balance between those interests, on the one hand, and those of the applicants in exercising their right to freedom of peaceful assembly, on the other.\u00a0At the time the authorities were not required to carry out such a balancing assessment (see Navalnyy, \u00a7\u00a7\u00a0116 and 133, and Lashmankin\u00a0and\u00a0Others, \u00a7\u00a0461, both cited above). The interferences in the form of prosecution for failing to comply with those orders to disperse were not justified with reference to specific and averred substantive grounds. It also appears that the police did not consider it necessary to levy any sanctions upon the applicants at the event venue, as they left it sometime after the orders to disperse had been given (see paragraph 3 above).<\/p>\n

21. The shortcomings mentioned above have been identified in numerous cases where the Russian police intervened for the sole reason that the public event had not received official approval, and in which that formal unlawfulness had been put forward as the only justification, including for convicting the applicants of administrative offences (see, among others, Navalnyy, cited above, \u00a7\u00a7\u00a0149-50, and cases cited therein).<\/p>\n

22. The Court is mindful of its\u00a0fundamentally subsidiary role\u00a0in the mechanism established by the Convention, according to which the Contracting Parties have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto (see Dubsk\u00e1 and Krejzov\u00e1 v. the Czech Republic\u00a0[GC], nos.\u00a028859\/11\u00a0and\u00a028473\/12, \u00a7\u00a0175, ECHR 2016).\u00a0It also notes that the principle of subsidiarity imposes a shared responsibility between the Contracting Parties and the Court, and that national authorities must interpret and apply the domestic law in a manner that gives full effect to the Convention (see Gu\u00f0mundur Andri \u00c1str\u00e1\u00f0sson v.\u00a0Iceland [GC], no.\u00a026374\/18, \u00a7 250, 1\u00a0December 2020). Even assuming that the reasons relied on by the courts were relevant, they were not sufficient to show that the convictions were \u201cnecessary in a democratic society\u201d in the circumstances of the case.<\/p>\n

23. There has been a violation of Article 11 of the Convention in respect of both applicants on account of their convictions under Article 20.2 \u00a7 5 of the CAO.<\/p>\n

III. other ALLEGED VIOLATIONS<\/strong><\/p>\n

24. The applicants also complained under Article 6 of the Convention about the lack of a prosecuting party at the court hearings in their CAO cases; under Articles 10 and 11 of the Convention about being prosecuted, albeit without any final conviction, under Article 19.3 of the CAO in relation to the same facts on 5 May 2018; and under Article\u00a04 of Protocol No.\u00a07 about being prosecuted three times and convicted two times in relation to the hybrid event.\u00a0Having regard to the nature and scope of the findings under Article 11 of the Convention in the present case, the Court decides to dispense with the examination of the admissibility and merits of those complaints.<\/p>\n

APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/strong><\/p>\n

25. The applicants submitted no claim within the prescribed time-limit. The Court makes no award.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Decides to join the applications;<\/p>\n

2. Declares the complaint under Article 11 of the Convention (as regards the convictions under Article 20.2 \u00a7 5 of the CAO) admissible;<\/p>\n

3. Holds that there has been a violation of Article 11 of the Convention in respect of each applicant;<\/p>\n

4. Holds that there is no need to examine the admissibility and merits of the remaining complaints.<\/p>\n

Done in English, and notified in writing on 1 March 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Olga Chernishova \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Darian Pavli
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

___________<\/p>\n

APPENDIX<\/strong><\/p>\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.
\nCase name
\nIntroduction date<\/strong><\/td>\n		Applicant\u2019s name
\nYear of birth\/Registration date
\nPlace of residence
\nNationality<\/strong><\/td>\n		Representative\u2019s name
\nLocation<\/strong><\/td>\n<\/tr>\n<\/thead>\n
1.<\/td>\n59770\/18
\nRaymov v. Russia
\n04\/12\/2018<\/td>\n		Roman Igorevich RAYMOV
\n1997
\nIbresi
\nRussian<\/strong><\/td>\n		 <\/p>\n

Aleksey Vladimirovich GLUKHOV
\nNovocheboksarsk<\/td>\n<\/tr>\n

2.<\/td>\n1038\/19
\nRyabenko v. Russia
\n14\/12\/2018<\/td>\n		Nikolay Borisovich RYABENKO
\n1999
\nCheboksary
\nRussian<\/strong><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n