Communicated on 4 June 2015

FIRST SECTION

Application no. 15364/15 Lev Aleksandrovich PONOMAREV and Yevgeniy Vitalyevich IKHLOV against Russia lodged on 16 March 2015

STATEMENT OF FACTS

The applicants, Mr Lev Aleksandrovich Ponomarev and Mr Yevgeniy Vitalyevich Ikhlov , are Russian nationals, who were born in 1941 and 1959 respectively and live in Moscow.

A. The circumstances of the case

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

The first applicant is an executive director of a non-governmental organisation “Human Rights Movement” ( « Общероссийское общественное движение « За права человека »») .

On 17 March 2014 the applicants and Ms B. notified the prefect of the Central administrative district of Moscow (“the prefect”) of their intention to hold a picket against anti-constitutional censorship on 29 March 2014 in Novopushkinskiy park in Moscow.

On 20 March 2014 the applicants and Ms B. received a suggestion from the prefect ’ s office to change the place of the picket to Yauzskie Vorota square owing to the fact that another public assembly had been planned in the vicinity of Novopushkinskiy park . On the same date the applicants and Ms B. requested the prefect ’ s office to change the location of the picket. They emphasised that they were acting as private individuals.

On 24 March 2014 the first applicant wrote to the deputy mayor of Moscow asking him to assist in changing the agreed place for the picket. The letter was written on stationary with a letterhead of the Human Rights Movement and signed by the first applicant in his capacity of the NGO ’ s executive director.

On 26 March 2014 the first applicant received from the prefect ’ s office by e-mail a document issued by the regional security department of the Moscow government stating that the picket could not be agreed to for the reason that the first applicant was an executive director of the Human Rights Movement, and that on 28 February 2014 the Ministry of Justice of Russia had suspended the activities of the organisation until August 2014.

On 27 March 2014 the applicants challenged the refusal to agree to the picket before a court.

On 22 May 2014 the Presnenskiy district court of Moscow dismissed the applicants ’ complaint for the reason that the letter of 24 March 2014 had been written by the first applicant acting as an agent of the Human Rights Movement while the NGO ’ s activities had been suspended and concluded that the prefect ’ s refusal to agree to the proposed picket had been in full compliance with section 43 of the Public Associations Act of 19 May 1995.

The applicants appealed. The Moscow city court (“the city court”) scheduled a hearing on 22 September 2014. On 15 September 2014 the second applicant requested the city court to postpone a hearing for the reason that he was bedridden. However, he could not produce a medical certificate confirming his sick leave as it had yet to be drawn.

On 22 September 2014 the city court held an appeal hearing. At the outset it found the second applicant ’ s request for postponement unsubstantiated and decided to hear the case in the applicants ’ absence. The city court reaffirmed the district court ’ s position that the letter of 24 March 2014 in support of the proposed picket written on the paper with the Human Rights Movement ’ s letterhead had suggested that the NGO had attempted to organise a picket while its activities had been suspended in breach of section 43 of the Public Associations Act. It further reasoned that pursuant to section 5 § 2 (2) of the Public Assemblies Act as amended on 8 June 2012 a public association could not organise a public gathering during the suspension period imposed on it in accordance with law. Dismissing the applicants ’ appeal, the city court concluded as follows:

“Accordingly, the court finds it established that the Human Rights Movement NGO was aiming at breaking a legislative ban by organising a picket while its activities had been suspended.

The arguments of the complaint concerning the breach of the right to freedom of assembly could not be taken into consideration because the aim of the Human Rights Movement NGO was not the picket itself, but non-compliance with the federal law requirements which hold a public association obliged not to organise pickets during the period of suspension of its activities.

Freedom of association as interpreted by the claimants in their statement of appeal means absence of any prohibitions, which is not in conformity with Article 21 of the International Covenant on Civil and Political Rights ...”

On 13 October 2014 the city court notified the applicants by e-mail that the appeal hearing had taken place on 22 September 2014 in the absence of the claimants as the second applicant had failed to formerly prove his sick leave. It remains unclear why the first applicant did not attend the hearing of 22 September 2014.

The applicants complained to the city court ’ s presidium about the fact that the appeal hearing had been held in their absence. A city court ’ s judge refused to examine the complaint as brought in breach of procedure and suggested that the applicants lodge a cassation appeal in due course. The applicants complained about the refusal. The same judge of the city court again recommended the applicants to lodge a proper cassation appeal.

The second applicant obtained a full copy of the appeal court ’ s judgment on 27 February 2015.

The applicants considered that lodging a cassation appeal would be futile.

B. Relevant domestic law

1. Federal Law No . 82-FZ of 19 May 1995 (“the Public Associations Act”)

If a public association violates the Russian Constitution and laws and acts in breach of its statutory aims and goals, provided that it fails to remedy the violation or breach in question after the State registration body or a prosecutor have requested to do so, its activities could be suspended for up to six months by a decision of the State registration body or a prosecutor (section 42).

If the activities of the public association have been suspended, it cannot organise public gatherings, meetings, marches and pickets or other public assemblies, or participate in elections, or use its bank accounts save for a few exceptions; and its rights as a founded of mass media are suspended (section 43).

2. Federal Law 54-FZ of 19 June 2004 (“the Public Assemblies Act”) as amended on 8 June 2012

A political party or any other public or religious association, as well as their regional branches, may not be an organiser of a public assembly if their activities have been suspended or banned or if the entity in question has been liquidated in accordance with law (section 5 § 2 (2)).

COMPLAINT

The applicants complain under Article 11 of the Convention about the authorities ’ refusal to agree to the picket which they proposed in their private capacity, not as representatives of the Human Rights Movement .

QUESTIONS TO THE PARTIES

1. Have there been violations of Articles 10 and 11 of the Convention on account of the domestic authorities ’ refusal to agree to a public assembly intended to be organised by the applicants in their private capacity?

(a) Was there an interference with the applicants ’ rights under Articles 10 and 11 of the Convention on account of the domestic authorities ’ refusal to agree to the proposed picket? If so, bearing in mind the domestic authorities ’ failure to distinguish between the activities of the Human Rights Movement and those of the applicants acting in their private capacity, was the interference in question “prescribed by law”? Was it “necessary in a democratic society”? Did the domestic authorities and courts perform a balancing exercise to assess the proportionality of the interference to the aims sought to be achieved?

(b) Does section 5 § 2 (2) of the Russian Public Assembly Act ( Federal Law no. 54-FZ of 19 June 2004 On Assemblies, Meetings, Demonstrations, Marches and Picketing as amended on 8 June 2012) meet the “quality of law” requirement contained in Articles 10 § 2 and 11 § 2 of the Convention? Is the statutory ban on associations which activities have been suspended to organise a public assembly “necessary in a democratic society”?

2. Is there an effective remedy in respect of the complaints under Articles 10 and 11 of the Convention, as required by Article 13 of the Convention? Are there any statutory time-limits for the judicial review of the authorities ’ refusals to agree to an assembly allowing for an enforceable judicial decision to be given before the intended date of the assembly ( see Alekseyev v. Russia , nos. 4916/07, 25924/08 and 14599/09, § § 97-100, 21 October 2010 ) ?