THIRD SECTION

DECISION

Application no. 44570/11 Anno KOMAROV against Russia

The European Court of Human Rights (Third Section), sitting on 26 May 2020 as a Committee composed of:

Helen Keller, President, María Elósegui , Ana Maria Guerra Martins, judges, and Olga Chernishova , Deputy Section Registrar ,

Having regard to the above application lodged on 11 July 2011,

Having regard to the observations submitted by the respondent Government and observations submitted by the applicant in reply,

Having deliberated, decides as follows:

PROCEDURE

1 . The case originated in an application (no. 44570/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Anna Vladimirovna Komarova (“the applicant”), on 11 July 2011.

2 . On 26 July 2018 the applicant ’ s representative informed the Court that the applicant had underwent gender reassignment and asked to identify the applicant as male under the name of “Anno Komarov ”. Having regard to the applicant ’ s self-identification, the Court will further refer to him as male; the Court will continue processing the application under the case name as referred to in the domestic proceedings and as indicated in the application form.

3 . The applicant was represented before the Court by Mr D. Bartenev , a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr M. Galperin , Representative of the Russian Federation to the European Court of Human Rights.

THE FACTS

A. The circumstances of the case

4 . The facts of the case, as submitted by the applicant, may be summarised as follows.

5 . The applicant was born in 1972 and lives in Germany.

6 . On 2 November 2010 the applicant, an LGBT activist, notified the Prefect of the Central Administrative District of Moscow of his intention to hold a demonstration by picket together with ten other persons on 9 November 2010, in the vicinity of the Council of Europe Office in Moscow, to express support for the Court ’ s judgment in the case of Alekseyev v. Russia (nos. 4916/07 and 2 others , 21 October 2010).

7 . On 8 November 2010 the Prefect informed the applicant that the venue “was unsuitable for public events given the intensity of traffic, which created a risk to the safety of the picket participants, as well as other persons not participating in the picket”. The applicant decided not to proceed with the picket. Three days later he lodged a complaint under Chapter 25 of the Code of Civil Procedure (“the CCP”) with the Taganskiy District Court of Moscow challenging the grounds for refusal invoked by the Prefect. He argued that the authorities should have ensured the security of the participants and that the actual reason for the refusal had been the authorities ’ negative attitude towards the aim of the picket, i.e. the support of the judgment in the case of Alekseyev (cited above), in which the Court had found a violation of the Convention on account of banning the Pride Marches in Moscow. In support of this argument the applicant alleged that the Prefecture of the Central Administrative District of Moscow had approved the very same venue for pickets against the Alekseyev judgment, which had been held there on three occasions. The applicant asked the District Court to declare the refusal unlawful and to oblige the Prefecture to remedy a violation of his rights by allowing him to freely exercise his right to hold a picket.

8 . On 22 November 2010 the District Court dismissed the applicant ’ s complaint. It held that the Prefect ’ s letter of 8 November 2010 had been merely informative and had not banned the picket. On 2 February 2011 the Moscow City Court upheld the judgment on appeal.

B. Relevant domestic law and practice

9 . For the relevant domestic law and practice, see Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 216, 218-42, 253-61 and 276 ‑ 88, 7 February 2017) and Alekseyev (cited above, §§ 49 and 50).

COMPLAINTS

10 . The applicant complained under Article 11 taken alone and in conjunction with Article 14 of the Convention of the banning of the picket and under Article 13 in conjunction with Article 11 of the Convention of the absence of an effective domestic remedy against the alleged violation of his right to freedom of peaceful assembly.

THE LAW

11 . With reference to Articles 11, 13 and 14 of the Convention the applicant complained of the banning of the picket and the absence of an effective domestic remedy in this respect. These provisions of the Convention, in so far as relevant, read as follows:

Article 11

“ 1. Everyone has the right to freedom of peaceful assembly ...

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

12 . With reference to the Court ’ s findings under Article 13 of the Convention in Alekseyev (cited above , §§ 97-100), the Government argued that the applicant had failed to comply with the six-month time-limit set out in Article 35 § 1 of the Convention, which, in the absence of an effective domestic remedy for his complaint, should have been calculated from the date of the Prefect ’ s refusal to approve the picket.

13 . The applicant maintained his complaint. He asserted that the Court ’ s position in Alekseyev (cited above, § 98) as to the ineffectiveness of a post-hoc judicial review in cases concerning the banning of public events, applies only if the timing of an event is of particular importance to its organisers and participants, whereas he had been prepared to accept an alternative time and venue for his demonstration. The applicant further contended that the judgment in the case of Alekseyev had become final only on 11 April 2011 and until then he had been unaware of the ineffectiveness of domestic remedies for his complaint.

14 . The Court observes that the applicant ’ s complaint concerned the refusal of the Prefect to approve the venue he had chosen for the picket. The applicant was informed of the refusal on 8 November 2010, more than six months before he lodged his complaint with the Court. It must, therefore, be determined whether the applicant complied with the six-month time-limit under Article 35 § 1 of the Convention.

15 . The purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It also protects the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. It marks out the temporal limits of the supervision carried out by the Court and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-40, 29 June 2012).

16 . In assessing whether an applicant has complied with Article 35 § 1, it is important to bear in mind that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. Thus, where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures complained of. If an applicant first avails himself of a domestic remedy and only subsequently becomes or should have become aware, of the circumstances which render that remedy ineffective, it might be appropriate to calculate the six-month period from the date when the applicant became or ought to have become aware of those circumstances. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting-point for the running of the six-month rule. It follows that if an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that remedy cannot be taken into account for the calculation of the six-month period (see Jeronovičs v. Latvia [GC], no. 44898/10 , § 75, 5 July 2016 ).

17 . The Court found in Alekseyev (cited above, §§ 99 and 100) that the judicial remedy under Chapter 25 of the CCP, being of a post-hoc character, was incapable of providing adequate redress in respect of alleged violations of Article 11 of the Convention concerning banning of public events and found a violation of Article 13 of the Convention on this account. These findings were later confirmed in the case of Lashmankin and Others (cited above, §§ 342-61). Most recently, in the case of Alekseyev and Others v. Russia (nos. 14988/09 and 50 others , §§ 10-16, 27 November 2018), the Court declared inadmissible as belated a number of complaints from applicants who had challenged the authorities ’ refusal to approve the dates and venues of public events in the domestic courts under Chapter 25 of the CCP and, like the applicant in the present case, had lodged their applications with the Court more than six months after they had become aware of the impugned refusals. The Court confirmed that their applications “ should have been introduced to the Court within six months of the receipt of the refusal in question, and in any even[t] no later than the date of ... lodging the respective complaint with the [domestic] court” (ibid., § 15).

19 . The Court therefore concludes that the applicant ’ s complaint against banning of the picket should have been lodged within six months of the date of the Prefect ’ s refusal to approve the proposed venue (see, for similar reasoning, Alekseyev and Others , cited above , §§ 14-16).

20 . It follows that the application is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention and thus must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 June 2020 .

Olga Chernishova Helen Keller Deputy Registrar President