PARTLY DISSENTING OPINION OF JUDGE ZÃœND

1. The mere fact that a demonstration or other public event lacks prior notification or approval is not sufficient for an interference by the police, or for the punishment of participants or organisers, if public order is not disturbed in a significant manner. That is why I voted with the majority with respect to most of the events at hand.

2. However, I am unable to find a violation of the Convention as far as the event of 27 June 2013 is concerned. The applicant, together with another person, climbed a public building from the outside using a ladder, shouted slogans and unfolded a flag. This must be seen as an intentionally disruptive act clearly exceeding the level of minor disturbance, all the more so as the two people were carrying smoke flares with them, irrespective of whether these were used or not.

JOINT DISSENTING OPINION OF JUDGES ELÓSEGUI AND LOBOV

1. The effective exercise of the rights to freedom of expression and freedom of assembly is contingent on both the State’s and the individuals’ playing by democratically established rules. Both should act sensibly and responsibly, thus avoiding arbitrary or abusive conduct. The relevant general principles in this area have long been settled in the Court’s case-law and nothing in this case calls for a fresh discussion of them.

2. Our disagreement with the majority has been essentially prompted by their unwillingness to engage in the usual balancing exercise required by the Convention with a view to carrying out a meaningful determination of whether the applicant’s conduct disclosed elements of abuse, thus justifying the restrictions imposed by the authorities in at least some of the instances which were summarily joined in the present judgment. While criticising the domestic courts for a “perfunctory” attitude, the majority’s assessment tends itself to ignore some highly relevant factual aspects of the case, including the applicant’s profile as a virtually “professional” and reoffending activist, his deliberate refusal to abide by police orders, and not least his openly unlawful provocative actions, such as trespassing on public premises and using disruptive paraphernalia in the form of smoke flares or violent visual symbols.

3. The majority’s indiscriminate criticism of the national judicial decisions is another matter of concern. Admittedly, the national courts did not build their reasoning under Articles 10 and 11 of the Convention with reference to the proportionality test, as developed in the Court’s case-law. Yet there is also nothing to suggest that the applicant had raised any detailed grounds to that effect in the domestic proceedings. The courts thus limited themselves to consideration of the relevant national provisions and the rationale behind them, and contrasted the applicant’s conduct with that framework. This approach mirrors, in substance, the structure of the minimum analysis required by the Convention. The courts’ conclusions relating to the breach of the national law, be it the absence of notification or of authorisation, cannot therefore, on their face, be considered arbitrary or otherwise abusive. In other words, the courts’ failure to strictly follow, of their own motion, the Court’s proportionality test is not sufficient to find a violation of the Convention.

4. The Court, for its part, should have undertaken such a balancing exercise on its own, even without having the benefit of a prior assessment of proportionality by the national courts (see the most recent example of this approach adopted by the same Section in Arnar Helgi Lárusson v. Iceland , no. 23077/19, § 62, 31 May 2022; see also the separate opinion of judges Elósegui and Serghides insisting on the need for the Court to conduct a full proportionality test on its own in Nadtoka v. Russia (no. 2) , no. 29097/08, 8 October 2019). The present case would thus have provided an excellent opportunity to make a nuanced assessment of the balance between the interest of the applicant in participating in unauthorised or unannounced rallies and those of society in ensuring compliance with the law on public assemblies in the context of each incident involved. The majority missed this opportunity, taking instead a broad-brush approach. As a result, they have found violations in relation to all the incidents considered, relying essentially on the lack of a proportionality assessment at the domestic level and without engaging in a meaningful balancing exercise, as required by the Convention.

5. The applicant’s activist position is acceptable under both the Convention and the domestic law and must not be held against him. We doubt nonetheless that the Court could legitimately dispense with measuring the size and nature of the sanctions imposed in the light of the applicant’s profile as a reoffender, which was heavily emphasised by the domestic courts (see paragraphs 31 and 36 of the judgment). In view of the applicant’s background, could anyone seriously believe that he misunderstood the essence of the police’s announcement inducing him to leave the rally which was held to be unlawful (see paragraphs 59-60 and the majority’s reasoning in paragraphs 90-91 of the judgment)? Also, the majority could legitimately have asked themselves whether the applicant’s right to freedom of assembly in the form of climbing onto the balcony of an official building (see paragraph 33 of the judgment) was outweighed by the genuine need to ensure security and public order, with a fine of 20,000 roubles being a proportionate measure to that effect.

6. Regrettably, the judgment fails to weigh up the above elements, limiting itself to a hasty three-step approach: the “perfunctory” reasoning of the domestic courts, the “non-violent” nature of the event, and hence a violation of the Convention (see, for example, paragraph 95 of the judgment).

7. We are respectfully unable to join this approach by the majority. Possible shortcomings in domestic proceedings do not justify the Court skipping a genuine balancing exercise in its own judgment. Violence is not the only factor that justifies proportionate restrictions on the rights to freedom of expression and freedom of assembly in European societies. Persistent and disruptive behaviour in breach of the law is not justified under the Convention and calls for closer scrutiny.