CONCURRING OPINION OF JUDGE PASTOR VILANOVA

(Translation)

I voted in favour of finding a violation of Article 10 of the Convention in the present case, but on the basis of different reasoning from that of the other judges in the Chamber. I wish to set out briefly the reasons why I disagree with their approach.

It is well known that it is for the State to demonstrate the lawfulness of grounds justifying any interference with the exercise of a person ’ s right to freedom of expression or freedom of assembly. Those grounds constitute a numerus clausus to be interpreted strictly (see, inter alia , Animal Defenders International v. the United Kingdom [GC], no. 48876/08 , § 100, ECHR 2013).

The Government argued that the interference was lawful and could be justified by grounds relating to the protection of public order and national security or public safety (see paragraphs 95, 96 and 145 of the judgment).

It so happens that the judgment has attributed a different legal characterisation to the interference. After some hesitation, the Court decided to analyse the decision of the Russian authorities to put an end to the applicant s ’ peaceful demonstrations as being based on considerations related to the “prevention of crime” (paragraphs 140, 143 and 148). However, no crime had been committed; nor had the possibility of a crime being committed even been envisaged. The wrongdoing for which the applicant s were officially reproached consisted, essentially, in a failure to give prior notice to the administrative authorities that a demonstration was taking place. An administrative offence cannot, in my view, be treated as a “crime” for the purposes of Articles 10 § 2 or 11 § 2 of the Convention. The inclusion of administrative sanctions within the scope of Article 6 § 1, in view of the autonomous notion of criminal charge, stems from a completely different logic, based in particular on a concern to improve the protection of fundamental rights.

Consequently, I am of the view that the failure to carry out the formality in question could not be assimilated to a criminal offence, unless the permitted limitations to freedom of expression or freedom of assembly were to be given an extensive interpretation. I would point out that the demonstration was a peaceful one and was limited to a single individual.

In the present case, I consider, unlike the other judges, that the only reasonable ground that could have been relied on to justify the interference with the applicant s ’ right to freedom of expression or freedom of assembly was the classical concept of the “prevention of disorder”, as the respondent State itself had indeed claimed. Given that, according to the precedent of Perinçek v. Switzerland ([GC], no. 27510/08, §§ 146 and 153, ECHR 2015), the “prevention of disorder” concerns the risk of “riots” or “clashes”, it could have been rapidly concluded that the premature termination of the demonstration constituted a disproportionate measure.