Lexploria

SECOND SECTION

CASE OF NIKOLENKO AND OTHERS v. RUSSIA

(Applications nos. 13679/18 and 20 others â€“ see appended list)

JUDGMENT

STRASBOURG

7 September 2023

This judgment is final but it may be subject to editorial revision.

In the case of Nikolenko and Others v. Russia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Lorraine Schembri Orland , President , FrÃ©dÃ©ric Krenc, Davor DerenÄinoviÄ‡ , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 6 July 2023,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (â€œthe Conventionâ€) on the various dates indicated in the appended table.

2. The Russian Government (â€œthe Governmentâ€) were given notice of the applications.

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the disproportionate measures taken against them as organisers or participants of public assemblies. Some applicants also raised other complaints under various provisions of the Convention.

THE LAW

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

6. The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, Â§Â§ 68 â€‘ 73, 17 January 2023).

7. The applicants complained principally of disproportionate measures taken against them as organisers or participants of public assemblies, namely their arrest in relation to the dispersal of these assemblies and their conviction for administrative offences. They relied, expressly or in substance, on Article 11 of the Convention.

8. The Court refers to the principles established in its case-law regarding freedom of assembly (see KudreviÄius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and proportionality of interference with it (see Oya Ataman v. Turkey , no. 74552/01, ECHR 2006 â€‘ XIV, and Hyde Park and Others v. Moldova , no. 33482/06, 31 March 2009).

9. In the leading cases of Frumkin v. Russia, no. 74568/12, ECHR 2016 (extracts); Navalnyy and Yashin v. Russia, no. 76204/11, 4 December 2014; and Kasparov and Others v. Russia, no. 21613/07, 3 October 2013, the Court already found a violation in respect of issues similar to those in the present case.

10. Having examined all the material submitted to it, having dismissed the Governmentâ€™s objection of non-exhaustion in applications nos. 39614/18, 45704/18 and 48549/19, and having taken into account the issue of compliance with the six-month time-limit under Article 35 Â§ 1 of the Convention (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, Â§Â§ 46-59, 1 March 2022, in which the Court addressed the COVID-related extension of the period in question), the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the interferences with the applicantsâ€™ freedom of assembly were not â€œnecessary in a democratic societyâ€.

11. These complaints are therefore admissible and disclose a breach of Article 11 of the Convention.

12. Some applicants submitted other complaints which also raised issues under the Convention and its Protocols, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 Â§ 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible.

13. Having examined all the material before it, the Court concludes that these complaints also disclose violations of the Convention and its Protocols in the light of its findings in Butkevich v. Russia , no. 5865/07, Â§Â§ 63-65, 13 February 2018; Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, Â§Â§ 115-31, 10 April 2018; and Korneyeva v. Russia , no. 72051/17, Â§Â§ 34-36, 8 October 2019, as to various aspects of unlawful deprivation of liberty of organisers or participants of public assemblies; Karelin v. Russ ia, no. 926/08, Â§Â§ 58-85, 20 September 2016, concerning the absence of a prosecuting party in the proceedings under the Code of Administrative Offences (the CAO); and Martynyuk v. Russia , no. 13764/15, Â§Â§ 38-42, 8 October 2019, relating to the lack of suspensive effect of an appeal against the sentence of administrative detention.

14. Some applicants raised further additional complaints under Articles 5 and 6 of the Convention concerning other aspects of their deprivation of liberty and fairness of the administrative-offence proceedings. In view of the findings in paragraphs 10-13 above, the Court considers that there is no need to deal separately with these remaining complaints.

15. The Court has further examined the rest of the complaints raised by the applicants and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 Â§ 4 of the Convention.

16. Regard being had to the documents in its possession and to its case â€‘ law (see in particular Navalnyy and Others v. Russia [Committee], nos. 25809/17 and 14 others, Â§ 22, 4 October 2022), the Court finds it reasonable to award the sums indicated in the appended table.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 7 September 2023, pursuant to Rule 77 Â§Â§ 2 and 3 of the Rules of Court.

{signature_p_1} {signature_p_2}

Viktoriya Maradudina Lorraine Schembri Orland

Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 11 of the Convention

(disproportionate measures against organisers and participants of public assemblies)

No.

Application no.

Date of introduction

Applicantâ€™s name

Year of birth

Representativeâ€™s name and location

Name of the public event

Location

Date

Administrative charges

Penalty

Final domestic decision

Court Name

Date

Other complaints under well â€‘ established case-law

Amount awarded for pecuniary and non â€‘ pecuniary damage and costs and expenses per applicant

(in euros) [1]

13679/18

02/03/2018

Kirill Dmitriyevich NIKOLENKO

1989Terekhov Konstantin Ilyich

Moscow

Anticorruption rally

Vladimir

12/06/2017

Article 20.2 Â§ 2 of CAO

fine of RUB 20,000

Vladimir Regional Court

06/09/2017

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

3,500

39614/18

03/08/2018

Aleksandr Yuryevich ARTEMOV

1990Eysmont Mariya Olegovna

Moscow

Anti-corruption manifestation

Moscow

12/06/2017

Rally in support of A. Navalnyy

Moscow

31/01/2021

Article 20.2 Â§ 6.1 of CAO

fine of RUB 15,000

administrative detention of 7 days

Moscow City Court

06/02/2018

Moscow City Court

27/05/2021

Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention (i) on 12/06/2017 as administrative suspect, for drawing up a record of administrative offence; and (ii) between 6 p.m. on 31/01/2021 and 01/02/2021, as administrative suspect, "for compilation of administrative material"; no evidence/assessment of any "exceptional circumstances", under the CAO,

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - both sets of the administrative-offence proceedings

5,000

44996/18

14/09/2018

Vladislav Vladimirovich KULCHITSKIY

1997Zhdanov Ivan Yuryevich

Vilnius

Rally in support on A. Navalnyy

Rostov-on-Don

24/12/2017

Article 20.2 Â§ 3 of CAO

fine of RUB 15,000

Rostov Regional Court

19/03/2018

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

3,500

45058/18

12/09/2018

Olga Yuryevna KOMLEVA

1979Zhdanov Ivan Yuryevich

Vilnius

Opposition rally

Ufa

28/01/2018

Rally against the pension reform

Ufa

09/09/2018

Article 20.2 Â§ 1 of CA

Article 20.2 Â§ 8 of CAO

fine of RUB 10,000

fine of RUB 75,000

Supreme Court of the Republic of Bashkortostan

14/03/2018

Supreme Court of the Republic of Bashkortostan

07/11/2018

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - both sets of the administrative-offence proceedings

4,500

45704/18

22/09/2018

Dmitriy Yevgenyevich BOGATOV

1993Anti-corruption rally

Moscow

12/06/2017

Rally in support of A. Navalnyy

Moscow

23/01/2021

Article 20.2 Â§ 5 of CAO

fine of RUB 15,000

fine of RUB 10,000

Moscow City Court

22/03/2018

Moscow City Court

13/05/2021

Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention (i) on 12/06/2017, and (ii) on 23/01/2021, each time for the sole purpose of drawing up an administrative offence record,

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - both sets of the administrative-offence proceedings

4,000

54029/18

06/11/2018

Dmitriy Vladimirovich KALINYCHEV

1980Boris Nemtsov memorial march

Nizhniy Novgorod

25/02/2018

Event to protest against unfair elections ("Funeral of the elections")

Nizhniy Novgorod

11/03/2018

Rally against the pension reform

Nizhniy Novgorod

09/09/2018

Article 20.2 Â§ 8 of CAO

Article 20.2 Â§ 2 of CAO

fine of RUB 150,000

administrative detention of 20 days

Nizhniy Novgorod Regional Court

01/08/2018

Nizhniy Novgorod Regional Court

10/05/2018

Nizhniy Novgorod Regional Court

14/11/2018

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - all sets of the administrative-offence proceedings,

Prot. 7 Art. 2 - delayed review of conviction by a higher tribunal - the sentence of administrative detention imposed on the applicant on 13/09/2018 was executed immediately, on account of the lack of suspensive effect of an appeal under the CAO

6,000

55565/18

13/11/2018

and

52297/20

31/10/2020

Aleksandr Aleksandrovich SOFEYEV

1987Sergeyeva Irina Vadimovna

Moscow

Solovyev Leonid Alekseyevich

Moscow

Rally against the ban of the Telegram Messenger

Moscow

16/04/2018

Rally against abusive criminal prosecution

Moscow

03/02/2020

Event in support of LGBT community

Moscow

07/10/2020

Article 20.2.2 Â§ 1 of CAO

Article 20.2 Â§ 5 of CAO

Article 20.2 Â§ 8 of CAO

fine of RUB 10,000

fine of RUB 15,000

administrative detention of 30 days

Moscow City Court

30/05/2018

Moscow City Court

04/09/2020

Moscow City Court

13/10/2020

Art. 5 (1) - unlawful deprivation of liberty â€“ (i) arrest, escorting to a police station and detention between 16/04/2018 and 17/04/2018 for the sole purpose of drawing up a record of administrative offence (such record was drawn up on 16/04/2018); (ii) arrest, escorting to a police station, detention between 08/10/2020 and 09/10/2020 as administrative suspect;

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings (two sets of the administrative-offence proceedings, final judgments given on 30/05/2018 and 13/10/2020 respectively)

5,000

11699/19

15/02/2019

Aleksey Yuryevich GOLYSHEV

1976Pomazuyev Aleksandr Yevgenyevich

Vilnius

Opposition rally

Moscow

05/05/2018

Rally in support of A. Navalnyy

Moscow

31/01/2021

Rally in support of A. Navalnyy

Korolev, Moscow Region

21/04/2021

Article 20.2 Â§ 5 of CAO

Article 20.2 Â§ 5 of CAO (first-instance court â€“ proceedings discontinued by the court of appeal)

Article 20.2 Â§ 5 of CAO

fine of RUB 10,000

fine of RUB 10,000 (ordered by the first instance court â€“ subsequently quashed, as proceedings discontinued by the court of appeal)

fine of RUB 5,000

Moscow City Court

24/09/2018

Moscow City Court (administrative â€‘ offence proceedings discontinued)

07/06/2021

Moscow Regional Court

27/05/2021

Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention (i) escorted and detained in a police station on 05/05/2018 as administrative suspect; (ii) on 31/01/2021, for drawing up a record of administrative offence; (iii) between 21/04/2021 and 23/04/2021, as administrative suspect;

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings â€“ the first and the third sets of the administrative-offence proceedings (final judgments of 24/09/2018 and 27/05/2021)

5,000

17792/19

18/03/2019

Timur Arturovich TUKHVATULLIN

2001Sholokhov Igor Nikolayevich

Kazan

Rally against the pension reform

Kazan

09/09/2018

Article 20.2 Â§ 5 of CAO

fine of RUB 10,000

Supreme Court of the Republic of Tatarstan

20/02/2019

Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention on 09/09/2018, in excess of three hours, for the sole purpose of drawing up a record of administrative offence

4,000

28970/19

04/05/2019

Kirill Vladimirovich SEREBRENNIKOV

1996Fedotova Yuliya Yevgenyevna

Yekaterinburg

Rally against the pension reform

Yekaterinburg

09/09/2018

Article 20.2 Â§ 5 of CAO

fine of RUB 10,000

Sverdlovsk Regional Court

22/01/2019

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

3,500

30129/19

21/05/2019

Anatoliy Mariyevich SVECHNIKOV

1972Rally against the pension reform

Yekaterinburg

09/09/2018

Article 20.2 Â§ 5 of CAO

fine of RUB 10,000

Sverdlovsk Regional Court

28/11/2018

Art. 5 (1) - unlawful deprivation of liberty - arrest, delayed escorting to a police station, detention on 09/09/2018 in excess of three hours, for the sole purpose of drawing up a record of administrative offence,

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

4,000

31511/19

28/05/2019

Natalya Sergeyevna PETERIMOVA

1987Balog Natalya Andreyevna

Krasnoyarsk

Rally against the pension reform

Krasnoyarsk

09/09/2018

Article 20.2 Â§ 5 of CAO

fine of RUB 15,000

Krasnoyarsk Regional Court

29/11/2018

Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention on 18/09/2018 for the sole purpose of drawing up a record of administrative offence; escort and arrest records not compiled,

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

4,000

37262/19

16/03/2019

Anton Viktorovich STRUNIN

1982Rally against the pension reform

Penza

09/09/2018

Article 19.3 Â§ 1 of CAO

and

Article 20.2 Â§ 1 of CAO

administrative detention of 10 days

and

fine of RUB 14,000

Penza Regional Court

18/09/2018

and

Penza Regional Court

04/04/2019

Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention between 11/09/2018 and 12/09/2018 as administrative suspect

5,000

48549/19

28/08/2019

Petr Vladimirovich ABLIN

1981Event against the pension reform

Moscow

05/11/2018

Manifestation for fair elections to Mosgorduma

Moscow

27/07/2019

Manifestation in support of A. Navalnyy

Moscow

23/01/2021

Manifestation in support of A. Navalnyy

Moscow

31/01/2021

Article 20.2 Â§ 5 of CAO

fine of RUB 15,000

fine of RUB 20,000

Moscow City Court

28/02/2019

Moscow City Court

14/10/2019

Moscow City Court

14/04/2021

Moscow City Court

08/04/2021

Art. 5 (1) - unlawful deprivation of liberty-arrest, escorting to a police station, detention on four occasions, each time for the sole purpose of drawing up a record of administrative offence: (i) on 05/11/2018, (ii) on 27/07/2019, in excess of three hours (the administrative offence record only drawn up on 31/07/2019), (iii) on 23/01/2021 (administrative offence record compiled only on 25/01/2021), and (iv) on 31/01/2021, in excess of three hours, and after the administrative-offence record had been drawn up,

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - four sets of the administrative-offence proceedings

5,000

56867/19

14/10/2019

Aleksandr Vladimirovich YUFRYAKOV

1958Sholokhov Igor Nikolayevich

Kazan

Rally against construction of a disposal site

Arkhangelsk

07/04/2019

Article 20.2 Â§ 6 of CAO

fine of RUB 14,000

Arkhangelsk Regional Court

18/06/2019

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

3,500

6884/20

28/01/2020

Aleksey Yuryevich CHERKES

1984Memorial Human Rights Centre

Moscow

Manifestation for fair elections to Mosgorduma

Moscow

27/07/2019

Article 20.2 Â§ 6.1 of CAO

fine of RUB 15,000

Moscow City Court

18/11/2019

Art. 5 (1) - unlawful deprivation of liberty - arrest and escorting to the police office, detention between 27/07/2019 and 29/07/2019 as administrative suspect (offence record compiled already on 27/07/2019),

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

4,000

7523/20

29/01/2020

Yevgeniy Ivanovich SKACHKOV

1979Memorial Human Rights Centre

Moscow

Manifestation for fair elections to Mosgorduma

Moscow

27/07/2019

Article 20.2 Â§ 6.1 of CAO

fine of RUB 10,000

Moscow City Court

04/09/2019

Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention between 27/07/2019 and 29/07/2019 as administrative suspect; no evidence/assessment of any exceptional circumstances under the CAO,

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

4,000

12207/20

27/02/2020

Aleksey Igorevich SEMENOV

1993Memorial Human Rights Centre

Moscow

Demonstration in support of Ivan Golunov

Moscow

12/06/2019

Article 20.2 Â§ 6.1 of CAO

fine of RUB 15,000

Moscow City Court

26/08/2019

(the final decision served on the applicant on the following day)

Art. 5 (1) - unlawful deprivation of liberty- arrest, delayed escorting to a police station, detention on 12/06/2019 for the sole purpose of drawing up a record of administrative offence;

Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

4,000

19605/20

25/03/2020

Nikolay Nikolayevich LYASKIN

1982Pomazuyev Aleksandr Yevgenyevich

Vilnius

Manifestation for fair elections to Mosgorduma

Moscow

31/08/2019

Article 20.2 Â§ 5 of CAO

fine of RUB 20,000

Moscow City Court

02/12/2019

3,500

32691/20

02/07/2020

Vyacheslav Sergeyevich KUZNETSOV

1987Memorial Human Rights Centre

Moscow

Manifestation for fair elections to Mosgorduma

Moscow

03/08/2019

Article 20.2 Â§ 5 of CAO

fine of RUB 15,000

Moscow City Court

02/10/2019

Art. 5 (1) - unlawful deprivation of liberty - arrest, escorting to a police station, detention on 03/08/2019 for the sole purpose of drawing up a record of administrative offence;

6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings

4,000

[1] Plus any tax that may be chargeable to the applicants.

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CASE OF NIKOLENKO AND OTHERS v. RUSSIA

CASE OF NIKOLENKO AND OTHERS v. RUSSIA

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