Freedom of Association and Assembly / Protests
Vajnai v. Hungary
Closed Expands Expression
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On September 6, 2022, the European Court of Human Rights (ECtHR) by majority opinion held the Russian governmental authorities responsible for violation of Mr. Bodalev’s right to freedom of expression and right to participation in peaceful assemblies guaranteed under Articles 10 and 11 of the European Convention on Human Rights (ECHR). The applicant took part in six different protest rallies against numerous causes such as denouncing election fraud, and preventing the removal of State owned enterprises’ revenues to offshore jurisdictions. For each of these demonstrations, either he was sentenced to detention or a fine was imposed on him by the Russian courts. In the Court’s view, the Russian judges had failed to show that detention of the applicant pursued one or more legitimate aims and was “necessary in a democratic society”. According to the court, mere participation in a non-notified demonstration without uttering any threats, engaging in reprehensible conduct or causing any harm, did not justify an interference with participant’s right to freedom of peaceful assembly under Article 10 or 11 of the Convention.
Mr. Bodalev (the applicant) took part in six different protest rallies organised on December 4, 2011, December 6, 2011, November 26, 2012, December 31, 2012, April 5, 2013, and June 27, 2013 [p. 4-33].
During the first rally, the applicant participated in the demonstration to denounce alleged fraud in the State Duma election, held in St. Petersburg, from where he was arrested and taken to police station [p. 4]. Fine of RUB 200 was imposed on the applicant as the demonstration was not notified to the competent authority, which violated the Federal Law on Gatherings, Meetings, Demonstrations, Processions and Pickets, No. 54-FZ of 19 June 2004 (“the Public Events Act”) [p. 7]. Under section 5 and 7 of the Act, the organiser of a public event has an obligation to notify the executive or municipal authority of the event [p. 38].
The second rally was organised in a metro station, to protest against the same cause, from where the applicant was once again arrested and sentenced to eleven days of detention period [p. 15]. Both the decisions delivered by the regional courts, were upheld by the higher courts. The third protest was aimed at “reviving” the Russian Constitution with the applicant holding a poster saying “Let us resurrect the Constitution” and uttered several slogans like “Follow your own laws”, “Stop the police state” and “We need a different Russia” [p. 17]. This time, fine of RUB 15,000 was imposed as the event was not notified to the authorities [p. 19]. During the fourth demonstration, fine of RUB 20,000 was imposed [p. 25]. These fines were imposed under Article 20.2(2) of the Code of Administrative Offences (CAO) under which violation of the rules for running a public event was punishable by a fine [p. 42].
During the fifth rally, the applicant took part in a public assembly near the building of the St Petersburg Administration of the Bank of Russia, which was aimed at preventing the removal of the State-owned enterprises’ revenues to offshore jurisdictions by the Russian government [p. 27]. The applicant was sentenced to a fine of RUB 1,000. This time, the appeals court had quashed his sentence as it was observed that he didn’t make any repeated statements or orders after the event was pronounced as unlawful by the police officer [p. 29]. However, on June 23, 2013, he was convicted again by the court and sentenced to a fine of RUB 20,000, also upheld by the Supreme Court of Russia [p. 31-32]. Finally, during the last protest, the applicant shouted slogans “FMS in Dushanbe” and “Freedom to the people” and unfolded a red flag with a white circle with a picture of a grenade, probably related to The Other Russia, a non-registered political party, in front of the building of the Federal Migration Service (FMS) [p. 33]. This time, he was sentenced to a fine of RUB 20,000, since he had earlier been convicted of similar offences [p. 36].
The judgement was delivered by the Third Section of the European Court of Human Rights (the Court) with Mr. Georges Ravarani as the President. The central issue for consideration was whether the prosecution of the applicant in relation to his involvement in peaceful assemblies was legally justified under Article 10 and 11 of the European Convention on Human Rights (the Convention). In doing so, the court had to determine whether the interference with applicant’s right to freedom of expression was “prescribed by law”, sought to pursue one or more legitimate aims, and was “necessary in a democratic society” to achieve those aims [p. 65].
Before actual engagement with the facts of the case, the Court reiterated some important general principles related to Article 10 and 11 of the Convention: The Court noted that the expression “prescribed by law” required that the impugned measure should have a basis in domestic law, which is sufficiently foreseeable giving individuals an adequate indication of circumstances under which the authorities could resort to measures affecting their rights under the Convention [p. 66]. The Court made other important observations including first, a person could not be subjected to penalty for participation in a demonstration which had not been prohibited; second, a demonstration without prior authorisation doesn’t necessarily justify an interference with person’s right to freedom of assembly; third, disruption to ordinary life due to demonstration in itself doesn’t justify interference with the right to freedom of assembly and certain degree of tolerance must be shown; fourth, spontaneous demonstration might be justified in special circumstances; fifth, nature and severity of penalties imposed are considered to assess the proportionality of an interference [p. 75].
The Court applied the above mentioned principles to the facts of the instant case and made the following observations:
First, regarding the events held on December 4 and 6, 2011, the Court observed that those “performances” were not notified in advance to the competent authority since they were “genuinely spontaneous reaction to the alleged violations committed during the election to the State Duma on 4 December 2011” [p. 86]. However, mere participation in a non-notified demonstration without uttering any threats, engaging in reprehensible conduct or causing any harm, according to the court, did not justify an interference with participant’s right to freedom of peaceful assembly under either Article 11 of the Convention [p. 83-84]. The Court observed that the national courts didn’t consider the spontaneous nature of the protest, didn’t show any degree of tolerance or afford the applicant any opportunity to express his views and therefore, failed to properly ascertain whether the conviction for applicant’s failure to disperse was justified as “necessary in a democratic society” [p. 85-88]. While referring to Navalnyy and Yashin v. Russia, no. 76204/11, the court also reiterated that Russian law had an unusually long, automatic and inflexible ten-day period requirement for prior notification under the Public Events Act without any exceptions for special circumstances without being “necessary in a democratic society”, which itself amounted to an interference without justification under Article 11 [p. 86]. All these factors led the Court to rule that applicant’s eleven day detention was disproportionate [p. 88].
Second, while deciding the legality of detention in respect to demonstrations organised on December 31, 2012 and April 5, 2013, the Court ruled that the Russians courts had failed to conclusively prove that the the applicant’s actions had caused any major disruption to ordinary life to a significant extent [p. 90]. According to the court, Russian judges did not clearly establish that the police had given any specific order to disperse, and even if they did, the Russian courts didn’t establish that applicant’s failure to leave the venue despite the police announcements had serious risks to public safety [p. 91]. Further, the Court opined that even if conviction for the failure to disperse could be justified as “necessary in a democratic society” in certain circumstances, the Russian courts’ perfunctory reasoning made it impossible for the Court to ascertain that they adequately established the relevant facts and applied the principles under Article 11 of the Convention [p. 95]. In the Court’s view, the amount of the fine imposed on the applicant therefore, was a disproportionate penalty vis-à-vis the applicant’s exercise of freedom of assembly as an ordinary demonstrator who didn’t cause any damage [p. 93].
Third, in relation to “performances” on November 26, 2012 and June 27, 2013, wherein the applicant held posters and uttered slogans against the migration law [p. 97-98], they contended that those events were a form of artistic expression and didn’t fall within the ambit of “public events” under the Public Events Act, and therefore, they could not be prosecuted for participating in a non-notified “public event” [p. 61]. The court observed that there was wide discretion exercised by the Russian authorities in determining what constituted an assembly (gatherings, meetings, demonstrations, processions, pickets or a combination) under the Act which could be subject to restrictions like prior official approval [p. 100-101]. According to the Court, “the Russian courts did not provide any justification for treating the event on November 26, 2012 as an “assembly” subject to prior approval and did not even specify which type of that regulated assembly it was. They did not adduce sufficient reasons for convicting the applicant for merely engaging, in a peaceful and non-disruptive manner in the public space, in political expression together with several other people” [p. 105]. In the Court’s view, the applicant was merely punished by the domestic courts due to his failure to comply with prior notification requirement, which was insufficient to justify the requirements under Article 10 and 11 of the Convention [p. 107].
To conclude, the Court held that there had been an “interference” with the applicant’s right to freedom of expression on account of his conviction in relation to the “performances” on November 26, 2012 and June 27, 2013, and his right to freedom of peaceful assembly on account of his conviction in relation to the rallies on December 4 and 6 2011, December 31, 2012 and April 5, 2013 [p. 65]. The decision was not unanimous as the Court (five votes to two), (four votes to three) and (five votes to two) held that there was violation of Article 10 of the Convention in relation to November 26, 2012, June 27, 2013 protests and all other events respectively.
Judge Zund remarked that detention for June 27, 2013 events was not illegal as the applicant climbed a public building from the outside using a ladder, shouted slogans and unfolded a flag which could be seen as an intentionally disruptive act clearly exceeding the level of minor disturbance [p. 28]. Judges Elosegui and Lobov opined that the majority had indiscriminately criticised national judicial decisions and failed to “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” [p. 29-30].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The European Court of Human Rights (ECtHR) expanded expression by upholding rights guaranteed to the applicant under Articles 10 and 11 of the European Convention on Human Rights (ECHR). The Court reiterated that, “under the Article 10 of ECHR, freedom of expression was applicable not only to ‘information’ or ‘ideas’ that were favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.” Furthermore, the Court observed that, “Article 10 of the Convention protected not only the substance of the ideas and information expressed, but also the form in which they are conveyed”. The judges emphasized that, protests constituted expressions of opinion within the meaning of Article 10, and that there was little scope for restrictions on political speech or on discussion of matters of public interest.
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Case significance refers to how influential the case is and how its significance changes over time.
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