Information Note on the Court’s case-law 195

April 2016

Novikova and Others v. Russia - 25501/07, 57569/11, 80153/12 et al.

Judgment 26.4.2016 [Section III]

Article 10

Article 10-1

Freedom of expression

Detention and administrative conviction of solo demonstrators for breach of prior-notification requirement: violation

Facts – The Public Assemblies Act 2004* required prior notice to be given to the competent a uthorities of public events or pickets. “Pickets” were defined as a form of public expression of opinion not involving movement or the use of loudspeaker equipment. The notice requirement did not apply to so-called “solo static demonstrations” but, by virt ue of a 2012 amendment to the Public Assemblies Act, a certain distance had to be kept between unrelated solo demonstrators. The precise distance was left to the discretion of the regional authorities, but was not to exceed fifty metres. The Act also empow ered the domestic courts to decide post facto whether a public event was an assembly or a solo static demonstration.

At different times and in different places, the five applicants staged peaceful solo demonstrations, each of which ended with the applicant s being taken to the police station before being released some hours later.

According to the Russian Government, the first three applicants held group public events. In particular, five other people holding posters with similar slogans were present at the same place as the first applicant. As regards the second applicant, some five passers-by gathered and then dispersed after a warning from a police officer. As to the third applicant, another person made similar claims in a demonstration on the other side o f the street.

The first three applicants were subsequently convicted of the administrative offence of holding a group public event without prior notification and ordered to pay fines ranging from the equivalent of EUR 29 to EUR 505. The first applicant was convicted under the pre-2012 legislation. The second and third applicants were convicted under the amended provisions.

The fourth applicant was awarded the equivalent of EUR 149 in civil proceedings against the police for unlawful detention. However, a ci vil claim against the police by the fifth applicant, whose prosecution for using foul language was discontinued under the statute of limitations, was dismissed.

Law – Article 10: Given that the applicants had argued that the authorities’ actions related to their “solo demonstrations” rather than to peaceful assembly with others, the Court found it appropriate to examine the case under Article 10, taking into account the principles of its case-law under Article 11. The demonstrations concerned matters of public interest and constituted a form of political expression.

(a) First, second and third applicants

(i) The decisions to end the demonstrations and take the appli cants to the police station – Despite certain reservations, the Court proceeded on the assumption that the impugned interference had a basis in domestic law and pursued the legitimate aim of “crime prevention”. As regards proportionality, the Court was not satisfied that relevant and sufficient reasons had been adduced at the domestic level. In particular, given the alleged number of participants ranging from two people (in the third applicant’s case) to six people (in the first and second applicants’ cases ), notification would not have served the purpose of enabling the authorities to minimise any disruption to traffic or to provide first-aid when necessary. Nothing suggested the authorities had any additional reasons to consider that the situation would gi ve rise to particular security or public-safety concerns. The applicants had not obstructed pedestrians or traffic, used or called for violence or refused to cease their prima facie unlawful conduct. The authorities should have shown a degree of tolerance by allowing them to complete their demonstrations. If appropriate, a measure such as a reasonable fine could have been imposed. There had thus been no compelling reasons to end the demonstrations and take the applicants to the police station.

(ii) Prosecution for an administrative offence – The pre-2012 legislation that had served as the basis for the first applicant’s prosecution was not sufficiently foreseeable as regards what conduct or omissions could be classified as an offence on account of a breach of the notification requirement where there was a doubt as to whether the event in question was a group event (in the form of a meeting or a static demonstration), a series of simultaneous solo demonstrations or a single solo demonstration.

As to th e 2012 amendments, as authoritatively interpreted by the Russian Constitutional Court in 2013, there had been a perceived need at the domestic level to prevent assembly organisers from evading their notification obligations by disguising public assemblies as solo demonstrations. However, a legislative choice to make conduct or an omission a criminal or other assimilated offence should not run counter to the very essence of fundamental rights, such as the right to freedom of expression. The primary purposes of the notification requirement – to enable the authorities to ensure public safety and protect the rights of the event participants and others – were fully attainable through reasonable application of the distance requirement. The Court could not see what legitimate aim the authorities had sought to achieve by empowering the domestic courts to classify an event as an “assembly” post facto . Nor could it discern sufficient reasons for a conviction for non-observance of the notification requirement where the demonstrators were merely standing in a peaceful and non-disruptive manner at a distance of some fifty metres from each other. Indeed, no compelling considerations relating to public safety, the prevention of disorder or the protection of the rights of oth ers had been at stake. The only relevant consideration – the need to punish unlawful conduct – was not a sufficient consideration in this context, in the absence of any aggravating elements.

Thus, while accepting that the aim of the interference may have b een to prevent disorder, the Court was not satisfied that the applicants’ right to exercise their freedom of expression was properly taken into consideration during the examination of the administrative-offence charges against them.

For the Court, the mere presence of two or more people in the same place at the same time was not sufficient to classify the situation as an “assembly”. As illustrated by the third applicant’s case, the fact that two simultaneous solo demonstrations concerned the same topic did not suffice to confirm that the demonstrators’ actions were of a concerted and premeditated nature. The domestic courts’ findings in that respect had thus not been sufficiently substantiated.

Moreover, solo demonstrations were by their nature capable of an d aimed at attracting attention from passers-by. However, the domestic courts had adopted a formalistic approach in the second applicant’s case by qualifying his interaction with passers-by as a group event requiring prior notification, even though it was difficult to conceive how such an event would generate a significant gathering warranting specific measures from the authorities and there was nothing to suggest that the applicant had ab initio conceived his event as an assembly. With due regard to the pr esumption of innocence, where the authorities suspected intentional actions aimed at evading the notification requirement, they should bear the burden of proving the relevant factual and legal elements.

Finally, the Court noted the ten-fold increase of fin es in 2012 for the offence in question. In particular, the fine of EUR 505 imposed on the second applicant was disproportionate, given that the failure to notify the event in question had not caused any damage whatsoever. The high level of fines was liable to have a “chilling effect” on legitimate recourse to protests and solo demonstrations.

(iii) Overall conclusion – In the absence of aggravating factors, the swift termination of the events followed by the taking of the applicants to the police station a nd their subsequent prosecution solely for organising or participating in a non-notified public event, had constituted a disproportionate interference with the first three applicants’ freedom of expression.

(b) Fourth applicant – Even assuming that the do mestic court’s finding that the police had acted unlawfully constituted, in substance, an acknowledgment of the violation of his freedom of expression, the Court was not satisfied that the award of EUR 149 constituted adequate and sufficient redress.

(c) Fifth applicant – It remained unclear what exact words were uttered by and held against the fifth applicant. The Court therefore considered, with due regard to the presumption of innocence, that he had not used foul language to the extent or in a way which might justify his being taken to the police station and the termination of his demonstration. The domestic courts had failed to make a specific assessment of the factual and legal issues pertaining to the lawfulness and necessity of taking him to the stat ion and the adverse effect it had had on the exercise of his freedom of expression. The authorities’ reaction to his demonstration had thus been disproportionate.

Conclusion : violation in respect of all five applicants (unanimously).

Article 41: No claim m ade by fourth applicant in respect of damage. EUR 7,500 to each of the first three applicants and EUR 6,000 to fifth applicant in respect of non-pecuniary damage; EUR 120 to second applicant in respect of pecuniary damage; fifth applicant’s claim in respec t of pecuniary damage dismissed.

* Federal Law no. FZ-54 of 19 June 2004 on Gatherings, Meetings, Demonstrations, Marches and Pickets (“the Public Assemblies Act”).

© Council of Europe/European Court of Human Rights This summary by the Registry does not b ind the Court.

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