JOINT PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGES LEMMENS, YUDKIVSKA AND KELLER

1 . We voted with our colleagues for finding a violation by Russia of Article 11 of the Convention as regards Mr Udaltsov (the second applicant) (see operative point 14).

We have nothing to add regarding the relevant part of the judgment.

2 . With respect to Mr Razvozzhayev (the first applicant), the majority hold that his complaint, although very similar, is incompatible ratione materiae with the provisions of the Convention (see paragraph 284 of the judgment) and thus inadmissible (see operative point 4).

We respectfully disagree.

3 . The majority consider that Mr Razvozzhayev deliberately led a number of individuals to break through the police cordon, thus creating an escalation of violence and triggering the onset of clashes. They hold that his acts fall outside the notion of “peaceful assembly” within the meaning of Article 11 (see paragraph 284 of the judgment).

The facts seem not so clear to us.

4 . The applicant argued that the clashes with the police had occurred owing to the accumulation of a large number of people as well as to the unexpected change in the manner of deployment of the police squads involved. According to the applicant, the passage to the meeting area, Bolotnaya Square, was deliberately narrowed by policemen, riot police and internal troops and officers in full gear. The access to that area was obviously too small for the great number of protesters. Negotiations with the authorities to open up the passage failed. The applicant conceded that several clashes had arisen between the protesters and law-enforcement officers, but said that they had been spontaneous and had occurred because of bunching caused by the police cordon actions, panic among the protesters and the impossibility for them to leave the place.

As is stated in paragraph 279 of the judgment, the Court has already examined the events of 6 May 2012 at Bolotnaya Square. With respect to the breaking of the police cordon, it noted that “a commotion arose near the police cordon at the place vacated by the sit-down protest, and the police cordon was broken in several places. A crowd of around a hundred people spilled over to the empty space beyond the cordon. Within seconds the police restored the cordon” (see Frumkin v. Russia , no. 74568/12 , § 35, 5 January 2016; to similar effect , see also Yaroslav Belousov v. Russia , nos. 2653/13 and 60980/14, § 22, 4 October 2016). This description, which largely corresponds to the one given by Mr Razvozzhayev , makes plausible the idea that people close to the cordon found themselves “forced” to break through it because of congestion in the area caused by the growing number of protesters approaching the square.

5 . We acknowledge that the Court has already stated that there might have been a number of individuals in the crowd who contributed to the onset of clashes between the protesters and the police (see Yaroslav Belousov , cited above, § 179; Barabanov v. Russia , nos. 4966/13 and 5550/15, § 74, 30 January 2018; Polikhovich v. Russia , nos. 62630/13 and 5562/15, § 77, 30 January 2018; and Stepan Zimin v. Russia , nos. 63686/13 and 60894/14, § 77, 30 January 2018; see also paragraph 283 of the judgment).

However, the mere fact that someone “contributed to the onset of clashes” does not necessarily exclude that that person acted in a peaceful way. The context is important.

6 . The majority refer to the fact that during the trial against the applicants a witness stated that Mr Razvozzhayev had had the intention to break through the police cordon (see paragraph 284 of the judgment). That witness was Mr Ponomarev , a State Duma Deputy for whom Mr Razvozzhayev worked as an assistant. He stated “that he was the person who had suggested during the sit-in that the applicants push the police cordon back to the agreed limits of the meeting venue, and that he had told the first applicant to find strong men for that purpose” (see paragraph 129 of the judgment).

We do not think that this statement provides a firm basis for holding that Mr Razvozzhayev ’ s conduct was not “peaceful”. First of all, Mr Ponomarev spoke of pushing the police cordon back, not of breaking through the cordon. Moreover, it is not clear why Mr Ponomarev instructed his assistant to find strong men to push the police cordon back. It could have been because of the congestion that was becoming more and more severe and the corresponding need to open up the passage to the meeting area. In any event, Mr Ponomarev ’ s statement can hardly be understood as an argument in support of the view that Mr Razvozzhayev deliberately broke through the cordon in order to start a conflict with the law-enforcement officers.

7 . In short, we are not convinced that Mr Razvozzhayev displayed conduct that placed his acts outside the scope of protection of Article 11.

At the very least, this is in our opinion a matter to be examined under the merits of the complaint. It is for that reason that we voted against declaring his complaint inadmissible.

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