Freedom of Association and Assembly / Protests
Nemtsov v. Russia
Closed Expands Expression
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The Constitutional Court of Russia held that a person could be held criminally liable for repeatedly violating laws regulating public assembly, but only if the violations resulted in harm to health, property, the environment, public order, national security or other constitutionally protected values.
The case was brought by Dadin I.I., a long-term opposition and LGBT rights activist, who was imprisoned for his repeated participation in unsanctioned public assemblies despite having been held administratively liable and fined. Two separate courts escalated his case from an administrative violation to a crime under Article 212 of the Russian Criminal Code, which penalizes repeat violations of public assembly laws with heavy fines, imprisonment or forced labor. The lower instance courts found him guilty and he was imprisoned for two years. He challenged the constitutionality of Article 212 and the Constitutional Court ruled that the judgments of the lower instance courts improperly interpreted Article 212 and ordered a re-trial. Dadin was released following the re-trial.
In reaching its decision the Constitutional Court reviewed international and regional standards stipulating that any interference by the State in the freedom to public assembly must be prescribed by law, necessary and proportionate and meet a legitimate aim. It also cited European Court of Human Rights jurisprudence holding that the State must not use arbitrary means to violate the right to public assembly, and does not have complete freedom to act even when assembly participants violate established regulations or laws.
On September 4, 23, and 26, 2014, the Tversk District Court of Moscow found I.I. Dadin guilty of separate administrative violations for participating in public protests that hadn’t been notified to the administration of Moscow and imposed three fines totaling RUB 35,000 (~$600). Dadin appealed the September 4th and 23rd decisions, but on March 16, 2015, the Moscow City Court upheld them. He never appealed the decision from September 26th and it went into effect on October 7, 2014.
On December 5, 2014, Dadin participated in another public march that was not approved by the Moscow City Administration. The march’s participants had a large banner, lit up torches, and blocked traffic, and on the basis of these actions an administrative violation protocol was drafted. The Basman District Court of Moscow held that Dadin’s repeated violations of the public assembly laws called for an escalation of his liability from administrative to criminal. Hence, the court closed the administrative case and instead requested a preliminary investigation into whether Dadin’s participation in the December 5, 2014, march constituted a violation under Article 212. On April 29, 2015, the Investigative Committee of the Russian Federation completed the review and initiated a criminal case against Dadin.
Article 212 of the Russian Criminal Code penalizes repeat violations of public assembly regulations with fines between RUB 600,000 (~$10,000) and RUB 1 million (~$17,000) or a sum equivalent to salary or other profits for a period between two to three years, or 480 hours of compulsory labor, two to three years of correctional work, forced labor for up to 5 years, or imprisonment for up to 5 years. He was tried and convicted under the law for repeatedly participating in unlawful public meetings.
On January 15, 2015, Dadin once again participated in a public protest that was organized without notification to the Administration of Moscow. He was found guilty of an administrative violation on January 16, 2015 and fined. Additionally, another criminal case was initiated against Dadin under Article 212 for participating in the January 15 protest despite him having been found guilty of administrative violations for participating in unlawful protests at least three times over 180 days.
The criminal cases initiated in January and April were combined into one. On June 24, 2015, the Criminal Investigator dropped the criminal charges related to Dadin’s January 15 participation in an unlawful protest because he had been found guilty of an administrative violation for it and fined.
On December 7, 2015, the Basman District Court found that Dadin repeatedly violated laws regulating marches, meetings, demonstrations, public assembly and pickets, and convicted him under Article 212. He was sentenced to three years in a prison colony. On appeal, on March 31, 2016, the Moscow City Appellate Court reduced the imprisonment to two years. The Supreme Court of Russian Federation refused to review the case on December 19, 2016.
Dadin then brought the case to the Constitutional Court of Russia to review the constitutionality of Article 212.
The court started by outlining Article 212 and the facts of the case. It then sought to establish that the right to public assembly is not absolute and could be limited and did so by referencing both national and regional legislation. The Court firstly confirmed that Article 31 of the Russian Constitution guarantees Russian citizens the right to peaceful public assembly. It stressed that the right to public assembly is an inalienable element of Russia’s status as a democratic nation with a constitutional regime permitting ideological and political diversity, and that it is responsible for protecting, including judicially, the rights and freedoms of its citizens.
The Court then explained that the right to public assembly allows citizens to exert pressure on the government, thus enabling peaceful dialogue between civil society and the government. This dialogue may include criticism of specific or general actions by the government, as well as the overall political mandate. Therefore, government regulation of public assembly must be neutral and aimed at providing conditions for the lawful exercise of freedom to assemble peaceably.
Additionally, the Court looked at legitimate limitations on the right to public assembly provided by the Russian Constitution. It explained that the right is regulated on basis of the principle of judicial equality and proportionality. This means that limitations must be reviewed against the necessity of protecting the constitutional regime, morals, health, rights and lawful interests of others, and national security.
After reviewing national legislation, the Court turned to international and regional norms. It said that the national principles it had reviewed were reflected in Article 20 of Universal Declaration of Human Rights and Article 21 of the International Covenant for Civil and Political Rights, which further states that restrictions on public assembly must only be imposed in “conformity with the law and [where] necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”
The Constitutional Court cited European Court of Human Rights jurisprudence establishing that in a democratic society the freedom to publicly assemble is as fundamental as the freedoms of thought, conscience, and religion. Furthermore, the European Court in the cases of Barankevich v Russia and Primov and others v Russia established that the State must not use arbitrary means to violate the right to public assembly, and does not have complete freedom to act even when assembly participants violate established regulations or laws.
In the cases of Rai and Evans v UK and Kasparov and others v Russia, the European Court said that laws requiring assembly organizers to notify the State serve an important role in guaranteeing peaceful public events and allow the State to minimize inconveniences and to ensure safety, but must not be an end in themselves nor create hidden obstacles for the realization of the right to public assembly.
Additionally, in the case of Akgol and Gol v Turkey, the European Court explained that governments must exhibit a degree of tolerance towards public assemblies, even when they inconvenience daily life, including street traffic.
The Russian Constitutional Court also cited European Court precedent establishing that any interference by the State in the freedom to public assembly, if it is neither prescribed by law nor meets a legitimate aim, violates Article 11 of the European Convention on Human Rights. According to the case of Wilson and the National Union of Journalists v the United Kingdom, the State has positive obligations to guarantee the right to public assembly of any nature, political, cultural, or related to unpopular views. There must also be compelling reasons to limit speeches on political or public interest issues since any such limitations may have a chilling effect on freedom of expression, per Feldek v Slovakia and Karman v Russia.
International jurisprudence also establishes that any actions taken by federal or municipal governments to ensure freedom of peaceful assembly must not excessively control the activities of organizers or participants of demonstrations, marches or pickets. In cases when participants of public assemblies clearly intend on acting in a manner that threatens public order or public security, the government must prevent any such behavior.
Thus, the Constitutional Court of Russia determined that the right to public assembly in Russia is not absolute and could be limited, but in compliance with the principles of necessity and proportionality, and must not pose an obstacle to an open and free expression of viewpoints, opinions, and demands.
Then the Court ruled that the Constitution of Russia permitted the State to hold persons who violate laws regulating the organization of and conduct during public assemblies criminally liable. However, the Court said that it was unconstitutional to hold a person criminally liable merely for repeatedly violating laws regulating public assembly, unless the violations resulted in harm to health, property, the environment, public order, national security or other constitutionally protected values.
Therefore, the Court concluded that the lower instance courts failed to interpret Article 212 properly and ordered a re-trial.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case expands expression in Russia because it narrows the application of a law criminalizing violations of public assembly regulations to instances where such violations cause harm to health, property, the environment, public order, national security or other constitutionally protected values. By doing this, the Constitutional Court increased the threshold for applying the criminal law and protected not only Dadin, but future activists.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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