Published on 11 October 2021

THIRD SECTION

Application no. 1257/21 Viktor Aleksandrovich NEMYTOV against Russia and 2 other applications (see list appended) communicated on 22 September 2021

SUBJECT MATTER OF THE CASE

The applications concern the prohibition of public events in Moscow introduced in response to the spread of the Covid-19 virus. In late May 2020, when strict lockdown measures were in place in Moscow, Mr Nemytov (case no. 1257/21, events of 26 May 2020) staged a solo demonstration, and Mr Azar (case no. 3244/21) participated in a series of solo demonstrations held by participants in turn, subsequently classified by an appellate court as a group event requiring a notification. The demonstrations were immediately discontinued, the applicants were arrested and convicted in the administrative proceedings for a breach of rules of conduct during a high alert regime (Mr Nemytov) and a repeated breach of rules of conduct of a public event (Mr Azar). The courts found, in particular, that the applicants had violated the requirements of the Decree of the Mayor of Moscow of 5 March 2020 No. 12-УМ introducing a high alert regime in Moscow and setting out a ban on holding public events, as well as (in case of Mr. Nemytov) Instruction No. 1П of 29 March 2020 by the Chief Sanitary Doctor of Moscow. In his grounds of appeal Mr Azar complained, in particular, that under domestic law the sentence of administrative arrest could not be applied to women having children aged under the age of fourteen but could be applied to men in an analogous situation which, in his view, amounted to a discrimination on the ground of sex. The appellate court upheld the application of administrative arrest to Mr Azar as lawful.

Mr Kostyukhin (case no. 24699/21) staged a solo demonstration wearing a mask and gloves on 1 August 2020, when a major part of the restrictions had been eased in Moscow but the ban on public events remained in place. He was found administratively liable for a breach of rules of conduct during a high alert regime and fined approximately 15,000 Russian roubles (RUB).

Mr Nemytov (case no. 1257/21) on 5 June 2020 participated in a series of solo demonstrations held by participants in turn, which was subsequently assessed by domestic courts as a group event in the form of a picket requiring a prior notification. He was sentenced to an administrative fine of RUB 150,000 for a failure to notify his demonstration.

Mr Nemytov (case no. 1257/21) on 25 June 2020 staged a solo demonstration in Red Square, Moscow. He was found administratively liable for a breach of a ban on public events in the vicinity of the residence of the President of Russia and sentenced to administrative arrest.

QUESTIONS TO THE PARTIES

1. Do the circumstances of each case (where relevant, termination of a demonstration, escorting to a police station, arrest and prosecution under the Code of Administrative Offences) disclose a violation of Article 10 § 1 or Article 11 § 1 of the Convention (see Novikova and Others v. Russia , nos. 25501/07 and 4 others, 26 April 2016)?

(a) Was the interference “prescribed by law”? The parties are invited to address, in particular, the following issues:

(i) Did the domestic provisions introducing the ban on public events including solo demonstrations in Moscow meet the “quality of law” requirements?

(ii) In cases no. 1257/21 (events of 5 June 2020) and no. 3244/21, did the domestic law and judicial practice at the time of the events allow for a clear distinction to be drawn between solo “pickets” staged by several participants in turn and a public assembly such as a group “picket” (reference is made, in particular, to § 31 of the Ruling No. 28 of 28 June 2018 by the Plenary Supreme Court clarifying that several solo demonstrations could be considered as a single group picketing if they were shown to be held simultaneously)? If not, was the “quality of law” adversely affected?

(iii) In case no. 1257/21 (events of 25 June 2020), were the relevant procedures, including the precise geographical scope of the restrictions, on holding public events in Red Square clear and accessible to the public? What is the justification for the ban on holding public events at that location? The Government are requested to provide documents establishing the perimeter of the zone in the vicinity of the Kremlin in which holding public events was prohibited at the relevant time; as well as information on the legislative history of the relevant statutory ban. Was the location chosen by the applicant within the restricted perimeter?

(b) In each case, did the interference pursue a legitimate aim? Was the interference “necessary in a democratic society” and proportionate to the legitimate aim pursued? Were the reasons adduced by the national authorities to justify the interference “relevant and sufficient”?

2. In cases nos. 1257/21 (events of 26 May and 5 June 2020) and 3244/21, has there been a violation of the applicants’ rights under Article 5 of the Convention on account of the applicants’ escorting to the police stations and arrests (see Navalnyy and Yashin v. Russia , no. 76204/11, §§ 89-98, 4 December 2014)?

3. In cases nos. 1257/21 and 3244/21 , were the courts which dealt with the applicants’ cases impartial, as required by Article 6 § 1 of the Convention, on account of the absence of the prosecuting party from the proceedings (see Karelin v. Russia , no. 926/08, §§ 38-85, 20 September 2016)?

4. In case no. 1257/21 (events of 5 June 2020), was the applicant able to examine witnesses against them, as required by Article 6 § 3 (d) of the Convention (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100 ‑ 31, ECHR 2015)?

5. In case no. 3244/21 , has the applicant suffered discrimination in the exercise of his rights under the Convention on the basis of sex, contrary to Article 14 of the Convention taken in conjunction with Article 8, insofar as under Article 3.9(2) of the CAO administrative arrest cannot be imposed on women with children under the age of fourteen, but can be imposed on men having children under the same age (compare to Alexandru Enache v. Romania , no. 16986/12, §§ 64-79, 3 October 2017)?

6. In cases nos. 1257/21 (events of 26 May and 25 June 2020) and 3244/21 , did the absence of suspensive effect of an appeal against the sentence of administrative detention undermine the applicant’s right to have his conviction reviewed, as required by Article 2 of Protocol No. 7 to the Convention (see Tsvetkova and Others v. Russia , nos. 54381/08 and 5 others, §§ 179-91, 10 April 2018)?

7. In case no. 24699/21, the applicant is invited to provide a copy of his statement of appeal against the judgment of 12 August 2020.

APPENDIX

Application

no. Lodged on

Applicant name

Year of birth

Place of residence

Nationality

Representative

Date of a solo demonstration

Details

Conviction, sanction

Judgments’ dates

Courts

1257/21*

29/11/2020

Viktor Aleksandrovich NEMYTOV

1982Moscow

Russian

Represented by:

Mansur Idrisovich GILMANOV

26/05/2020

Moscow

Solo demonstration in support of Mr. V. Vorontsov (administrator of a Telegram channel “Police Ombudsman”)

Initially, Article 20.2 § 8 of the CAO

(repeated breach of rules of a public event)

Fifteen days’ administrative arrest –

as amended on appeal:

offence re-qualified under

Article 20.6 § 1 of the CAO (breach of rules of conduct during a high alert regime),

arrest replaced by a fine of RUB 20,000

(applicant absolved from the payment, released from detention)

27/05/2020

Tverskoy District Court of Moscow

29/05/2020

Moscow City Court

05/06/2020

Moscow

Solo demonstration in support of Mr Azar. A part of the series of solo demonstrations, held on rotation basis by “at least ten persons” on that date

Article 20.2 § 8 of the CAO

Administrative fine of RUB 150,000

28/08/2020

Tverskoy District Court of Moscow

18/01/2021

Moscow City Court

25/06/2020

Moscow

Protest against amendments into the Russian Constitution

Article 20.2 § 8 of the CAO

Twenty days’ administrative arrest

26/06/2020

Tverskoy District Court of Moscow

30/06/2020

Moscow City Court

3244/21 *

02/12/2020

Ilya Vilyamovich AZAR

1984Moscow

Russian

Represented by:

Leonid Alekseyevich SOLOVYEV

26/05/2020

Moscow

Solo demonstration in support of Mr. V. Vorontsov and Mr. V. Nemytov

Article 20.2 § 8 of the CAO

Ten days’ administrative arrest

28/05/2020

Tverskoy District Court of Moscow

05/06/2020

Moscow City Court

24699/21

16/04/2021

Aleksandr Alekseyevich KOSTYUKHIN

1958Borovichi

Russian

01/08/2020

Moscow

Solo demonstration in support of Mr S. Furgal (former Governor of the Khabarovsk Region)

Article 20.6.1 § 1 of the CAO

Administrative fine of RUB 15,000

12/08/2020

Tverskoy District Court of Moscow

28/10/2020

Moscow City Court