CONCURRING OPINION OF JUDGE PAVLI

1. This case concerns the repeated and dogged refusals by the administrative authorities to register a new association, founded by the applicants. The latter include two members of a well-known punk band who have regularly found themselves in trouble with the Russian authorities due to their political activism.

2. In view of the authorities’ Byzantine treatment of the applicants’ straightforward request for registration, on increasingly spurious grounds, the Chamber found that “it is open to doubt whether the repeated refusals” pursued any of the aims enumerated in the second paragraph of Article 11 of the Convention. That notwithstanding, and without further explanation, the Chamber majority chose to “proceed on the assumption that the impugned interference” pursued the aim of “prevention of disorder” (see paragraph 41 of the judgment).

3. I am unable to proceed on such an assumption. The respondent Government carries the burden of showing that all elements of the three-part test under Article 11 § 2, including the existence of a legitimate aim pursued by the interference, have been met in the specific circumstances of the case . When the interference is as serious as preventing a new association from legally establishing itself in the first place – a form of prior restraint – that burden is exceptionally high: the authorities must present “only convincing and compelling reasons” to be able to justify such harsh restrictions (see paragraph 37 of the judgment and the case-law cited therein). It is therefore unclear on what basis the Chamber majority, while itself holding “doubts” about the pursuit of any legitimate aim, was prepared to proceed as if the Government had already met the relevant burden.

4. It is important to recall here that the authorities are not simply required to show that the relevant national legal framework, assessed in the abstract, serves a legitimate Convention aim. They must also prove that the application of that framework to the concrete circumstances of the case – in other words, the immediate “restriction placed on the exercise” by the applicants of their freedom of association – also served one or more of the listed legitimate aims. This is clear, in my reading, from the plain text of Article 11.

5. Lastly, for the Court to reach the conclusion that the pursuit of a legitimate aim has not been convincingly established in a particular case, it is not necessary, in my view, to have positive proof of bad faith or “ulterior motives” on the part of the authorities (though such a scenario can hardly be ruled out in the circumstances of the present case). That is an assessment that belongs more appropriately under an Article 18 analysis, which is subject to different material and evidentiary criteria, despite any potential overlaps.

6. Conversely, the purpose of a legal framework governing matters as central to democracy as association rights should be to facilitate their exercise to the fullest extent possible, in line with overarching democratic objectives. Where national administrative or judicial authorities, acting with either blind bureaucratic formalism or with outright bias, use seemingly valid regulations to effectively suffocate the exercise of those rights, the resulting interference no longer serves any aims that may be considered legitimate in a democratic society. “Rule by law” is fundamentally different from the rule of law.

7. In this day and age, the Court should not easily grant the benefit of prima facie legitimacy to restrictions of fundamental rights that deserve no such label. It is time to stop making assumptions about “legitimate aims”.

APPENDIX

List of applicants

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.

Mariya Vladimirovna ALEKHINA

1988

Russian

Moscow

2.

Vladimir Anatolyevich RUBASHNYY

1968

Russian

Kazan

3.

Nadezhda Andreyevna TOLOKONNIKOVA

1989

Russian

Norilsk