PARTLY DISSENTING OPINION OF JUDGE LOBOV

1. The majority concluded that the imposition of a fine for infringement of the prohibition on concealing one’s face during a public event amounted to a violation of Article 10 of the Convention. While “prepared to assume” that the interference with the applicant’s right to freedom of expression was prescribed by law, the majority found it “doubtful” that the interference pursued a legitimate aim and held that it was not, in any event, necessary in a democratic society.

2. I respectfully disagree with the above conclusion as it departs from the Court’s case-law that has on other occasions recognised the States’ wide margin of appreciation on this sensitive issue and found no violation of the Convention on account of similar prohibitions in other countries.

3. At the outset, I see little ground for hesitation and doubt as regards the lawfulness of the interference and the legitimate aim pursued by the impugned restrictions. Firstly, section 6(4) of the Public Events Act can hardly be seen as containing any ambiguity in respect of the prohibition (see paragraph 15 of the judgment). The sanction imposed is therefore neatly prescribed by domestic law and should have been recognised as such in clearer terms without any reservation (see paragraph 29 of the judgment).

4. Secondly, the legitimate aim relating to the “protection of public order” can hardly be reduced to “prevention of disorder” as suggested by the majority (see paragraph 30 of the judgment). The Constitutional Court for its part upheld the legitimate aim pursued by the law in the following terms: “The law must afford a possibility for fully-fledged realisation of the right to freedom of peaceful assembly and, at the same time, ensure observance of the requisite public order and safety without any damage to the health and morals of citizens, based on a balance between the interests of organisers and participants on the one hand and third parties on the other, given the necessity of providing State protection for the rights and freedoms of all persons (both those taking part and those not taking part in a public event), including by the introduction of reasonable measures to anticipate and prevent violations of public order and safety and citizens’ rights and freedoms, and by the establishment of effective public-law liability for actions which violate such measures or create a risk of their violation” (see the Constitutional Court decision of 7 July 2016, no. 1428-O, § 2). It is on this basis that the Constitutional Court held that the prohibition on concealing one’s face had “a clear preventive and deterrent effect on the conduct of participants in public events” (ibid., § 4, quoted in paragraph 18 of the judgment).

5. The Constitutional Court clearly grounded the above reasoning on both anticipation and prevention, thus upholding the ban on intentional face covering (except in some justified circumstances) as a reasonable preventive response to either an imminent or a potential danger of unlawful behaviour. The judgment contains no element capable of challenging the legitimacy of this approach or excluding the impugned ban from the permissible measures for protecting “public safety” under paragraph 2 of Article 10. Nor does the judgment address the ban as a possible element of the “protection of the rights and freedoms of others”. The doubts voiced in the judgment therefore reflect, once again, a far too restrictive view of the legitimate interests that may justify interference with the right to freedom of expression (see another recent example discussed in the separate opinion of Judges Ravarani, Serghides and Lobov in OOO Memo v. Russia , no. 2840/10, 15 March 2022).

6. Turning to the central point of the judgment, I fundamentally disagree with the way it avoids addressing the “ wide margin of appreciation ” which the Court had previously left to the States in imposing a ban on face covering in public places (see S.A.S. v. France [GC], no. 43835/11, §§ 155-56, ECHR 2014 (extracts); Dakir v. Belgium , no. 4619/12, § 59, 11 July 2017; and Belcacemi and Oussar v. Belgium , no. 37798/13, § 55, 11 July 2017). Strikingly, the judgment does not even mention any margin of appreciation left to the respondent State in this area. While being fully aware of the case ‑ law which consistently accepted blanket prohibitions on face coverings in public places in other countries (see paragraph 35 of the judgment), the majority failed to consider its implications in the context of the present case.

7. The reasoning followed in order to distinguish the above-mentioned cases from the present one is as cursory as it is flimsy. The cases have been contrasted on the ground that there was no general prohibition in Russian law on face covering in public, unlike in the other States which apply a blanket and indiscriminate prohibition (ibid.). The relevance of this argument is open to doubt, to say nothing of the paradoxical conclusion that seems to flow therefrom: a more restrictive approach in respect of face coverings turns out to be more compliant with the Convention than a less restrictive one.

8. Furthermore, the majority surprisingly seek to limit the S.A.S. case-law to the context of Articles 8 and 9 (ibid.), thus running contrary to the way in which the relevant cases were pleaded, discussed, and eventually decided by the Court. Indeed, Article 10 was at the centre of the applicants’ complaints to the Court in the French and Belgian cases, being closely interlinked with their complaints under Articles 8 and 9. Likewise, it was clearly understood that the French Law did not expressly bear any religious connotation as it was “ deliberately worded in a much broader manner, generally targeting ‘clothing that is designed to conceal the face’ and thus going far beyond the religious context ” (see the separate opinion of Judges Nußberger and Jäderblom in S.A.S. v. France , cited above, § 18, emphasis added).

9. Ultimately, the Court was not “ unaware that by imposing a ban on wearing in public places a garment designed to conceal the face the respondent State restrict[ed] to a certain extent the reach of pluralism ”. The Court decided nonetheless “ to show restraint in its scrutiny of Convention compliance ”. “ While it is true that the scope of the ban is broad, because all places accessible to the public are concerned, the contested provisions do not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face ” (see Dakir , cited above, §§ 55-58).

10. The application of these principles to the present case, with due regard for the respondent State’s wide margin of appreciation, should inevitably have led to a similar conclusion, namely that the impugned provisions of the Public Events Act did not affect the freedom to demonstrate and convey a message through any garment or item of clothing which does not have the effect of concealing the face . Interestingly, the material submitted by the parties demonstrates that other solo demonstrations took place in Murmansk on the same day and for the same purpose, using various inventive forms of expression which were no less “symbolic” or indicative of “dissatisfaction and protest” on “a matter of public interest” (see paragraph 23 of the judgment). Unlike the applicant, however, the other solo demonstrators did not conceal their faces and were accordingly not prosecuted under the Public Events Act.

11. The judgment heavily criticises the domestic courts on account of the automatic application of the ban (paragraph 37), the insufficient assessment of the circumstances, the summary reasoning (paragraph 38) and the disproportionate amount of the fine (paragraph 39). Yet the absence of a balancing exercise at the domestic level does not in itself amount to a violation of the Convention and compels the Court to conduct its own assessment of proportionality, bearing in mind its “fundamentally subsidiary role” (see Belcacemi and Oussar , cited above, § 51). Thus, in the last ‑ mentioned case the Court specifically addressed the question of sanctions for wearing a full-face veil in public. While the domestic law made it punishable by a fine or even by a prison sentence in the event of reoffending, the Court found the approach of the Belgian courts to be proportionate as they gave priority to the lightest possible fines allowed by the legislation, thus avoiding the application of more stringent sanctions (ibid., § 57). This approach seems to be consonant with the one taken by the Russian courts in the present case as they imposed the minimum fine, taking account of the minor nature of the offence and the applicant’s personality (see paragraph 13 of the judgment). Lastly, the amount of the fine imposed was also comparable to those examined by the Court in Belcacemi and Oussar .

12. The foregoing leads me to conclude that there has been no violation of Article 10 of the Convention in the present case.

13. On a more general note, a comparative overview suggests that face ‑ covering practices in public places, which may be motivated by various reasons, are an increasing source of controversy in European societies and thus lead to tangible restrictions. Notwithstanding the adverse effect of such restrictions (see paragraph 9 above) and of the criticism thereof by various bodies (see paragraphs 19-20 of the judgment), the Court has previously decided as a matter of principle that the lack of European consensus justifies “ a wide” or even “a very wide” margin of appreciation in this sensitive area (see S.A.S . v. France , § 155; Dakir , § 59; and Belcacemi and Oussar , § 55, all cited above). While the situation at issue in the present case is not identical to those considered by the Court in connection with the full-face veil, this cannot explain the radical difference in the Court’s approach to the assessment of whether the respondent State overstepped its margin of appreciation and thus violated the Convention. Such an unfortunate fragmentation of the Court’s case-law across different countries and regions runs an ultimate risk of undermining its coherence and authority.

[1] See “ Leyes antimáscaras ”, es.m.wikipedia.org, consulted on 9 July 2022. «§ 17a VersG». dejure.org; see also Clifford Stott, Marcus Beale, Geoff Pearson, Jonas Rees, Jonas Havelund, Alain Brechbühl, International Norms: Governing Police Identification and the Wearing of Masks During Protest. Two rapid Evidence Reviews , Ed. Maguire and Megan Oakley, January 2020, 94 pp. I would like to thank my fellow Judges for their help with the research of legislation in respect of Switzerland, the United Kingdom, France and Sweden, although the responsibility for this opinion remain my own.

[2] Ibid., “Denmark: Police brutalise climate protesters. Green Left Weekly” . Greenleft.org.au. Consulted on 16 February 2014.

[3] Ibid., “ Ley Orgánica 4/2015, de 30 de marzo, de protección de la seguridad ciudadana ”. Official State Gazette (77): 27216-27243. 31 March 2015. ISSN 0212-033X. BOE-A-2015-3442.

[4] See also https://petition.parliament.uk/petitions/300471 and https://www.legislation.gov.uk/ukpga/1994/33/section/60AA for more information on the Face Coverings (Regulation) Bill, pending with the UK Parliament, and a (pre-introduction) BBC report about it at https//www.bbc.com/news/10465209.

[5] See Mise en œuvre de l´interdiction de se dissimuler le visage (art. 10a Cst.): modification du code pénal. Rapport explicatif relatif à l´ouverture de la procédure de consultation. Berne le 20 octobre 2021, Confédération Suisse, Department fédéral de justice et police DFJP, Office fédéral de la justice OFJ, p. 20.

https://www.bj.admin.ch/dam/bj/fr/data/gesellschaft/gesetzgebug/verhuellungsverbot/vn-ber-stgb.pdf

[6] https://as.com/futbol/2021/01/30/internacional/1612018606_121353.html

[7] http://www.informeraxen.es/hinchas-del-athletic-denuncian-el-ataque-por-parte-de-ultras-encapuchados-del-olympique-de-marsella/ Raxen Report by the NGO Movement against Intolerance.

[8] https://www.europapress.es/deportes/futbol-00162/noticia-300-ultras-encapuchados-enfrentan-policia-paris-partido-psg-20181003221115.html

[9] https://www.la10.com.co/2021/12/19/hinchas-del-psg-fueron-los-causantes-de-los-disturbios-ocurridos-en-un-partido-por-copa-francia/

[10] https://www.elmundo.es/madrid/2022/06/29/62bb4a30fdddffe6a68b4600.html

[11] “ Pancartas, protestas … Las acciones anti OTAN salpican Madrid ”. El Mundo , 29 June 2022.

[12] Megha Raiguru, posted on 25 May 2021 on blogs.brighton.ac.uk. Log in History of Art and Design Blog, School of Humanities University of Brighton.

[13] Kevin Blowe, “Why covering your face at a protest is the right thing to do”; this article first appeared in Earth First! UK , spring 2017 zine. Freedomnews.org.uk

[14] Rachel Kraus, “The future of antisurveillance fashion is bright (because the world is going to hell). Masks aren’t going anywhere, 10 September 2020. Mashable.com.

[15] Leah Dolan, “ Por qué el pasamontañas, un accesorio del ejército del siglo XIX, se apodera de las redes sociales ” (“Behold the balaclava: Why a 19th century army accessory has overtaken social media”), CNN, 28 December 2021. cnnespañol.cnn.com.

[16] Ibid.