JOINT DISSENTING OPINION OF JUDGE S VAJIĆ AND KOVLER

We cannot share the majority ’ s conclusions that there has been no violation of Article 11 of the Convention, read in the light of Article 10, for the following reasons.

First of all, the parties disagreed as to whether the interference was prescribed by law , whether the domestic regul ations satisfied the quality ‑ of ‑ law requirement and whether the interference served a legitimate aim and was proportionate .

The applicants saw the operation of the notification-and-endorsement procedure under Russian law as the principal reason for the alleged infringement of their Convention rights. This procedure had a wide scope since it encompassed various types of public event involving more than one person (demonstrations, marches, etc.) and any public area, while a separate prohibitive rule also concerned certain designated areas considered sensitive from a security point of view (see paragraph 19 of the judgment). The procedure had to be complied with irrespective of the number of participants and the planned length of the event.

We agree with the Court ’ s conclusion th at the Russian notification ‑ and ‑ endorsement procedure is just one example among others of the variety of systems existing in Europe , and it is not the Court ’ s task to standardise them. Thus, the Court ’ s task is not to review, in abstracto , the compatibility with the Convention of the above procedure, but to determine, in concreto , the effect of the interference on the right to freedom of assembly, assessed in the light of freedom of expression.

It is common ground between the parties that in the present case the organisers submitted the public gathering n otice within the statutory time ‑ limit prior to the planned event. It is also undisputed that the authorities were thus able to make necessary preparations for the event . It is not in dispute between the parties that the issue to be raised during the public gathering in question was part of a political debate on a matter of general and public concern.

No proper reasons were given at the domestic level for reducing the event ’ s duration. As to the venue of the event, while understanding the applicants ’ preference (a location near the Moscow mayor ’ s office) , the Court has reiterated on many occasions the principle according to which, notwithstanding the acknowledged importance of freedom of expression, Article 10 does not bestow any freedom of forum for the exercise of that right, as regards entry to private property, or even, necessarily, to all publicly owned property (see Appleby and Others v. the United Kingdom , no. 44306/98, § 47 , ECHR 2003 ‑ VI ) . At the same time, the Court has also reiterated that where the location of the assembly is crucial to the participants, an order to change it may constitute an interference with their freedom of assembly under Article 11 of the Convention, which is at the heart of the present case (see The United Macedonian Organisation Ilinden and Ivanov v. Bulgaria , no. 44079/98, § 103, 20 October 2005, and Van den Dungen v. the Netherlands , no. 22838/93, Commission decision of 22 February 1995).

The Government ’ s reference to section 8 of the Public Gatherings Act, prohibiting public events in certain designated areas, was not relied upon in the domestic proceedings and was first raised before the Court. At the same time, it should be accepted that in the present case the national authorities provided some reasons for opposing the event in the planned location. As to the grounds mentioned by the Russian authorities, they referred to the security of the participants and the need to avoid causing obstruction to pedestrians and vehicles. They also mentioned that the area around the Dolgorukiy monument was restricted to service vehicles of the mayor ’ s office.

It must be noted that the public event in question related to the allegedly abusive exercise by Moscow authorities of their discretionary powers vis ‑ Ã ‑ vis the right of peaceful assembly of others. In the circumstances of this case, we do not find particularly convincing the domestic authorities ’ mere reference to the security of participants. We also observe that there is no doubt that the applicants ’ attitude during the event was a peaceful one. As to the alleged obstruction of passage, it does not appear that the parking area was in use on Sundays (see paragraph 25 of the judgment). It is also noted that under the domestic definition, a “ picket ” meant a static gathering of people, including a display of posters or banners . Thus, it does not appear that it implied any substantial movement, as compared, for instance, with a march or procession.

It is not overlooked that both before and during the event the applicants were afforded, but did not use, an opportunity to express their views in another venue chosen by the public authority. The Government argued that the applicants could have held their event in Tverskaya Zastava Square , which is also in the city centre and has more space. As a general rule, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them (see, among other authorities, Klaas v. Germany , 22 September 1993, § 29, Series A no. 269). However, it was not shown in the domestic proceedings, and we could not establish on the basis of the available material, that the authorities ’ alternative proposal was such as to allow the effective exercise by the applicants of their right to freedom of assembly, especially taking into account the fact that the demonstration was intended to express disagreement with the mayor ’ s office decision as to the location of the previously planned march and demonstration (see paragraph 8 of the judgment).

Secondly, the following considerations concerning judicial review and administrative offence proceedings in the applicants ’ cases should have had a bearing on the Court ’ s proportionality analysis in the present case.

It appears that the public event could not take place lawfully if the event organiser did not accept the public authority ’ s proposal for another venue and/or timing for the event. The disagreeing applicants were either to abstain from the activity or to expose themselves to the possibility of dispersal and prosecution, without any effective means of obtaining swift judicial review of the administrative decision.

Indeed, the judicial review decisions in the present case were issued after the event and did not contain any adequate proportionality analysis, which is a requirement under Article 11 of the Convention. In fact, it appears that no effective legal remedies were available at the time so as to provide prompt redress in the applicants ’ situation (see Alekseyev v. Russia , nos. 4916/07, 25924/08 and 14599/09, § 98 , 21 October 2010 ). It is not evident that a remedy was sufficiently established and available in practice in November 2005. In particular, it does not appear that there were any specific procedures or time-limits for such cases.

Furthermore, when deciding whether the applicants had committed the relevant administrative offence, the domestic courts had to establish that they had knowingly breached certain provisions of the Public Gatherings Act as regards participation in a public event. It does not appear that it was incumbent on the domestic courts to look into the question whether the authorities ’ blocking of the event as planned and the corresponding alternative proposal for another venue were lawful or otherwise in conformity with national law or the Convention. Apparently, in the absence of any final judgment on judicial review, the courts dealing with administrative offence cases proceeded on the assumption that the administrative decision was lawful.

Whilst it is true that the respondent State may impose sanctions on those who participate in demonstrations that do not comply with the permissible system of authorisation or notification, we consider that the decisions of the national authorities in the present case did not contain sufficient reasons which could have justified the interference with the applicants ’ right of assembly and freedom of expression. The fact that the amounts of the fines were relatively small does not detract from the fact that the interference with the applicants ’ rights was disproportionate and was not necessary to prevent disorder or protect the rights and freedom of others, within the meaning of the second paragraph of Articles 10 and 11.

We conclude that there has been a violation of Article 11 of the Convention, read in the light of Article 10.