Communicated on 13 July 2018

THIRD SECTION

Application no. 5244/18 Leonid Mikhaylovich VOLKOV against Russia lodged on 15 December 2017

SUBJECT MATTER OF THE CASE

Case 1:

The applicant, a campaign manager for Mr Navalnyy who intended at the time to run for the President of Russia, did a live broadcast at Navalnyy.Live Youtube channel on 12 June 2017 commenting on, inter alia , a public assembly on-going in Moscow. Mr R., the assembly organiser, had notified the town administration of the planned event. The applicant was then sentenced to a five-day detention under Article 20.2 § 2 of the Code of Administrative Offences (CAO) for his failure, as “a public event” organiser, to submit a prior notification, for “the event, which he had organised on 12 June 2017 via the Youtube channel”.

Case 2:

The applicant arrived in the morning of 29 September 2017 in Nizhniy Novgorod to attend and speak at a public assembly organised the same evening by Ms A. of the local campaign office. The assembly was to be held at the location chosen by A. from the list of locations put forward by the town administrative opposing her initial choice indicated in the event notification. A. notified the administration of her acceptance in respect of one specific venue. The applicant was then arrested. Having heard the defence and the official who had compiled the offence record, the applicant was sentenced to a thirty-day detention under Article 20.2 § 8 of the CAO for an offence constituted by “a repeated violation” of the Public Events Act (PEA) by a public event “organiser” who had carried out preparations for and organisation of the assembly, which had not been agreed upon with the town administration. Acting on behalf of a legal entity, the applicant had signed a contract with a private company for installing a platform and sound equipment.

Case 3:

Mr Navalnyy ’ s representative lodged a notification about a public event planned for 7 October 2017. Apparently, on 27 September 2017 the competent authority opposed the event while suggesting no alternative venue or timing. Following proceedings in case no. 2 (see above) on 5 October 2017, the applicant was arrested when he was about to leave the Moscow City Court. He was convicted on the same day for making (while still being in the court building) two public posts at his Twitter account: ( i ) one saying “Below is our main post on our political claims; I am glad to have this unexpected opportunity to be able to re-tweet it” followed by a hyperlink to a page on Mr Navalnyy ’ s website; (ii) the other one saying “ Navalnyy ’ s statement in the court” following by a hyperlink to another page of Navalnyy ’ s website containing the latter ’ s video message stating “Do come to protests in St Petersburg as well as in other areas of Russia”. In the court ’ s view, the above posts amounted to organizing, without a prior notification, a public event in Moscow on 7 October 2017. This being a repeated offence of the same type, the applicant was convicted under Article 20.2 § 8 of the CAO and sentenced to a twenty-day detention.

QUESTIONS tO THE PARTIES

1. Did the applicant ’ s prosecution and sentence under the CAO in case no. 1 for the violation of the PEA constitute an “interference” under Article 10 § 1 of the Convention, for instance, as regards his freedom to impart information and ideas? If yes, was this “interference” justified? In particular:

- Was it a foreseeable interpretation of the CAO read together with the PEA that the applicant ’ s conduct (an Internet broadcast) would amount to an administrative offence on account of a public event organiser ’ s failure to comply with the prior notification requirement? Was it established that the applicant had “undertake[n] the obligation to organise and/or run” any specific public event (see, as regards the definition of “organiser” and “organisation”, sections 21 and 28 in fine of ruling no. 28 of 26 June 2018 by the Plenary Supreme Court of Russia)?

- Were the applicant ’ s conviction and sentence “necessary in a democratic society”?

- Did the domestic courts adduce relevant and sufficient reasons relating to the existence of the “interference” and the justification for it, and base their conclusions on an acceptable assessment of the facts (see Makhmudov v. Russia , no. 35082/04, §§ 67-72, 26 July 2007, and for the approach Annenkov and Others v. Russia , no. 31475/10 , §§ 134-39, 25 July 2017, and Öğrü and Others v. Turkey , nos. 60087/10 and 2 others, §§ 64-71, 19 December 2017), also having regard to the requirements imposed by the Plenary Supreme Court of Russia in Ruling No. 21 of 27 June 2013 (see Lashmankin and Others v. Russia , nos. 57818/09 and 14 others, § 359, 7 February 2017; see also sections 1 and 38 of ruling no. 28 mentioned above)? In particular, was it convincingly established that the applicant had taken specific actions or had made utterances aimed at preparing and organising a specific public event? What type of event (for example, a meeting, a march or a picket) was it? Was it the same event as one notified by R. and actually held at the same venue on the same date?

2. Did the applicant ’ s pre-trial deprivation of liberty in case no. 2 constitute an “interference” under Articles 10 § 1 and 11 § 1 of the Convention (see Dilek Aslan v. Turkey , no. 34364/08 , §§ 67-68, 20 October 2015)? If yes:

- Was the applicant deprived of his liberty “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, because it [was] reasonably considered necessary to prevent his committing an offence or fleeing after having done so”, or “in order to secure the fulfillment of any obligation prescribed by law”?

- Which of the legitimate aims listed in the second paragraphs of Articles 10 and 11 it sought to pursue? Was this “interference” “necessary in a democratic society” (see Novikova and Others v. Russia , nos. 25501/07 and 4 others, §§ 177-84, 26 April 2016, and Lashmankin and Others , cited above, §§ 461-63; see also section 40 of ruling no. 28 mentioned above)? Did the domestic law and jurisprudence require the police to weigh the statutory purposes of the escorting or arrest under Articles 27.1-27.3 of the CAO in the light of one ’ s freedom of expression or freedom of peaceful assembly, as pertinent here (see the Constitutional Court ’ s Ruling no. 9-P of 16 June 2009; Decision no. 149-O-O of 17 January 2012; Decision no. 1049-O of 2 July 2013; and Ruling no. 25-P of 17 November 2016)? If yes, was any such assessment actually carried out by the police, in any written document or otherwise, for instance in any judicial procedure such as the CAO case against the applicant?

3. Was there a violation of Article 10 or 11 of the Convention on account of the prosecution in case no. 3? In particular:

( i ) While opposing a public event as planned, was/is the competent authority required, in compliance with Russian law as interpreted by the Constitutional Court, to make an alternative proposal ( предложение ) with a specific alternative venue or timing of the event? If yes, was any such proposal put forward, in a timely manner, in the present case? Was the public event “deemed approved” ( считаться согласованным ) in the absence of any such specific proposal (see section 2.2 of Ruling No. 4-P of 14 February 2013 by the Constitutional Court; see also, for instance, Decision no. A-7N132/13 of 23 May 2013 by the Kaluga Regional Court, and section s 10 and 13 of ruling no. 28 mentioned above)?

(ii) Was it foreseeable that under Russian law actions relating to holding the event as initially planned entailed liability for an administrative offence, irrespective of the lack of any such proposal (see section 10 in fine of ruling no. 28)?

(iii) When convicting and sentencing the applicant, did the domestic courts weigh all the relevant circumstances, for instance, whether the alleged call for a presumably unlawful protest incited the use of violence, bodily damage or damage to property (see also Novikova and Others v. Russia , nos. 25501/07 and 4 others, §§ 187-88, 26 April 2016, and sections 1 and 38 of ruling no. 28)?

4. Was the requirement of objective impartiality under Article 6 § 1 of the Convention complied with in the above CAO cases against the applicant (compare with Karelin v. Russia , no. 926/08 , 20 September 2016)?