CONCURRING OPINION OF JUDGE ELÓSEGUI

1. I am fully in agreement with the judgment, its reasoning and its conclusion.

2. My reflections relate only to the concerns that may exist as to the danger of applying some of the conclusions of our Section’s judgments in Russian Article 10 cases to other subsequent cases. In this specific case we found a violation of Article 10 because of the lack of proportionality of the fine of 242 euros imposed on the applicant for wearing a balaclava during a solo demonstration, during which she did not hide her identity. The applicant sought to support the Pussy Riot group and to protest “against their criminal prosecution, but also against a worrying situation as regards freedom of expression and the lack of a protest culture in Russia” (see paragraph 23 of the judgment; see also Alekhina and Others v. Russia , no. 22519/02, 13 April 2006). I voted in favour of a violation of Article 10 in the present case, as in a large number of previous Russian cases.

3. It has to be said that “there is no general prohibition in Russian law on face covering in public and that the applicant was sanctioned for breaching national regulations on the conduct of public events” (see paragraph 35 of the judgment). I agree then with the reasoning according to which it was wrong to apply a law designed to cover public events to a solo demonstration. Up to this point I do not have any problem.

4. Nonetheless, even if the present case was not the appropriate case in which to discuss in more depth the question of face coverings and the wearing of balaclavas at public demonstrations, I would like to emphasise that many European countries have prohibited the wearing of face coverings aimed at creating public disorder and attacking the rights of others. It could be said that the Court refers constantly to the protection of peaceful demonstrations under Article 10. However, demonstrations which are intended to be peaceful frequently end in violence. Also, the context is very important. We are not just talking about authoritarian or less democratic countries, eastern or western Europe, North or South. In many western European countries, laws prohibiting the use of balaclavas have been introduced in recent times on account of the increase in violent demonstrations and protests. Examples include Germany, which in the 1980s introduced section 17a(2) into the Versammlungsgesetz (Assemblies Act) [1] . At public meetings and demonstrations, it is forbidden to hide one’s face, on pain of a fine or even one year’s imprisonment. Austria has since 2002 made it an offence to cover one’s face with a mask during demonstrations, except where the mask does not pose a threat to security and public order (section 9 of the Versammlungsgesetz ), with a possible penalty of six months to one year’s imprisonment or a fine. In Denmark the wearing of masks at demonstrations is also illegal [2] . In Spain, under the Public Safety Act (section 33.2.c) [3] , it is an offence to hinder the identification of a person at a demonstration by using any kind of garment or object which covers the face. In France, the prohibition on face coverings is based on an Act of Parliament approved by the Senate on 14 September 2010. In other words, the legislation was passed a long time ago, before the “yellow vests” protests. Under this Act, it is an offence to wear – in public spaces, except in specific circumstances – accessories that cover the face, including helmets, masks, balaclavas, Islamic veils (niqabs) and other textiles. In the United Kingdom, during the anti-austerity protests in 2011, one of the temporary policies discussed at the Cabinet Office Briefing Room (COBRA) meeting was a ban on face coverings during riots. Generally, apart from reinforced action in certain areas and stages of demonstrations, no protesters were arrested simply for wearing a mask and were just ordered to uncover their faces. However, many detainees who had committed other crimes such as looting or attacks on police officers were charged in court with not complying with the mask ban, in addition to their other offences. [4] In Sweden, under the Mask Prohibition Act, fifteen participants in a demonstration were prohibited in one case from covering their faces, partially or completely, in such a way as to make identification difficult. This provision applies only if the demonstrations cause a disturbance of public order, or if they involve immediate danger. The prohibition does not apply if the event is part of a religious celebration. It is also not applicable to authorised demonstrators, according to chapter 2, section 7a of the Public Order Act. In Switzerland, in the cantons Basle (1990), Zürich (1995), Berne (1999), Lucerne (2004), Thurgau (2004), Solothurn (2006) and St Gall (2009), there are laws prohibiting the wearing of masks. [5] In Ukraine, several days after Berkut police clashed with Euromaidan protesters, the Verkhovna Rada promulgated Law no. 721-VII which prohibited the use of masks, helmets and camouflage clothing by people participating in rallies, meetings, demonstrations, protests, marches or other mass events. The possible penalty for these violations was a fine of around 400 United States dollars or administrative arrest of up to fifteen days. However, the Law was repealed in January 2014.

5. The issue in all these cases is not that these garments are used for weather-related or medical reasons. These do not usually cause any legal or security problems. This type of exception is a matter of common sense, even when the laws do not expressly provide for it. Similarly, I am not referring to the use of religious objects or garments; instead, I wish specifically to draw attention to the current contexts in which balaclavas are used.

6. The current problems with face coverings are not related to peaceful assembly, but to assemblies, meetings, demonstrations, marches and picketing which are violent from the outset or degenerate into violence. The Court cannot ignore these new realities. One reality, for instance, is the use of balaclavas by the fans of different soccer teams. This is a huge problem in many European countries. In principle, we might say that to support one football club or another goes to freedom of expression or freedom of assembly. We might say that these events are not political or part of any political ideology. But why not? There are right-wing fans and left-wing fans. When I was an expert with ECRI (2013-17) before coming to the Court, we addressed this increasing problem in many reports. Similar incidents have occurred during climate protests, anti-NATO protests and demonstrations against COVID measures, health passes and vaccinations. The following situations offer some concrete and real examples. On 30 January 2021, Marseille ultras beat and robbed Álvaro Gonzalez; the match had to be suspended. Radical elements stormed the team’s training centre and caused a huge riot. Twenty-five people were arrested and seven police officers were injured [6] . In 2021, PSG fans were the cause of the riots that occurred at a French Cup match. And on 9 March 2018 [7] , Athletic fans complained of an attack by hooded ultras from Olympique de Marseille [8] . Some 300 hooded ultras also clashed with the police in Paris after a Paris Saint-Germain match [9] .

7. Turning to the use of the balaclava at “anti-system” protests, I would refer to the recent events that occurred in Madrid during the NATO summit on 26 June 2022. “The ‘anti-system’ protestors began a series of acts of sabotage in the capital yesterday to protest against the holding of the summit. A group of hooded men from the Guinda Activa dyed one of the fountains in the Guindalera park, near the Parque de las Avenidas, and another in a park in the Moratalaz district, red” [10] . The police identified 100 “anti-system” protestors ready to blow up the NATO summit. Two demonstrations that had been planned were prohibited by the government delegation because it was expected that radical elements from the extreme left would travel to Madrid from Portugal, Greece and Italy [11] .

8. Nowadays, following the use of masks during the pandemic, many young people’s blogs are discussing the new discovery that they are unrecognisable behind a mask. For instance, the thousands of blogs include “Keep your Mask on and Protect your Identity! The Anonymity of Mask Wearing” [12] and “Why covering your face at a protest is the right thing to do” [13] . Through the blogs, it is possible to infer the new mood among young people who feel that they are being watched by surveillance cameras all the time and everywhere (see Big Brother Watch and Others v. the United Kingdom [GC], nos. 58170/13 and 2 others, 25 May 2021). In that judgment the applicants, legal and natural persons, complained about the scope and magnitude of the electronic surveillance programmes operated by the government of the United Kingdom. A reaction to this omnipresent “big brother” State caused a number of recent protests, with this movement supporting the use of masks to conceal one’s identity at public demonstrations against measures taken by States, for instance relating to COVID restrictions. Most of the blogs follow a line of reasoning according to which “the coronavirus pandemic has made wearing face masks widespread and socially acceptable, while unprecedented participation in protests against police brutality has raised awareness about the surveillance state and shown how important it is for protesters to protect their identities” [14] . Hoods as part of sweatshirts are being sold in huge numbers in different countries such as the United States and Chile (during the violent protests by students in 2019).

9. Such is the influence of fashion that balaclavas have been a trending topic in big brands from Prada to Zara [15] . The balaclava has become a wardrobe staple, and is a latecomer to the hottest fashion trend race of 2021. According to Leah Dolan, “[o]n TikTok, at the time of writing, there are 102.6 million videos attached to the ‘#balaclava’ hashtag, while another 248,000 people on Instagram have posted about the offbeat accessory.” The origin of this garment is the following: “These masks take their name from the Ukrainian port town of Balaclava, the backdrop for a battle in 1854 during the Crimean War, where British and Irish troops were sent to fight Russian soldiers in freezing conditions ... British women began knitting full-face hats for their men” [16] .

10. By contrast, the Court has found against several countries, including Spain in the case of Lopez Martinez v. Spain (no. 32897/16, 9 March 2021), because at the time the events occurred, the identification numbers of the riot police were hidden by their bulletproof vests. Later the legislation changed and the number must now be visible. In that judgment the Court held as follows (translation by the Registry):

“38. The Court refers to the Government’s observations on the difficulties encountered in distinguishing the identification numbers of the police officers by the distinctive characteristics of their uniforms, and welcomes the change in the domestic regulations in this regard. However, it points out that this change took place after the events in the present case and that it was not possible to identify the police officers responsible for the injuries sustained by the applicant. The Court has already had occasion to find that, when the authorities deploy masked police officers to maintain order or carry out an arrest, those officers must visibly display identifying insignia, such as a personal identification number, allowing them to maintain anonymity while facilitating their subsequent identification in the event of challenges to the methods used by them (see Hentschel and Stark v. Germany , no. 47274/15, § 91, 9 November 2017). The Court found a violation because the impossibility of identifying the police officers had not been remedied by thorough investigative measures.”