Global Freedom of Expression

Case of Frumkin v. Russia

Closed Expands Expression

Key Details

  • Mode of Expression
    Public Assembly
  • Date of Decision
    January 5, 2016
  • Outcome
    Violation of a Rule of International Law, ECtHR, Article 11 Violation, ECtHR - non Freedom of Expression and Information article violations, Article 6 Violation
  • Case Number
  • Region & Country
    Russian Federation, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    International/Regional Human Rights Law
  • Themes
    Freedom of Association and Assembly / Protests
  • Tags
    Right to Fair Trial

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Case Analysis

Case Summary and Outcome

The European Court of Human Rights found violations of Articles 5, 6 and 11 of the Convention (right to liberty, right to a fair trial and right to freedom of assembly) by Russia in the arrest, detention and administrative conviction of the applicant during a political rally.  The Court reasoned that the authorities’ failure to communicate with the organizers of the rally to ensure a peaceful assembly violated the applicant’s right to freedom of assembly and that even if their interference with this right was necessary to ensure public safety, which was not made out, the measures taken against him were grossly disproportionate to the aim pursued and there was no “pressing social need” to arrest and sentence him to a prison term. Regarding the applicant’s claim under Article 5, the Court reasoned that the 36-hour detention pending trial, especially where the domestic law provided for a maximum of three hours, was unjustified and arbitrary and amounted to a violation of the applicant’s right to liberty. Finally the Court found that the applicant had been deprived of his right to a fair trial because the domestic courts had refused to accept additional evidence or to call the police officers who had arrested the applicant and had failed to consider the lawfulness of the police order which had resulted in the applicant being punished for protected actions without the police having to justify the interference with his right to freedom of assembly.


The applicant was arrested May 6, 2012 during a political rally at Bolotnaya Square in Moscow, detained for a period of 36 hours and subsequently sentenced to fifteen days’ administrative detention for failing to abide by police orders.

The stated purpose of the rally, which was for an estimated 5000 participants with a specific route authorized by the Moscow Department of Regional Security, was “to protest against abuses and falsifications in the course of the elections to the State Duma and of the President of the Russian Federation, and to demand fair elections, respect for human rights, the rule of law and the international obligations of the Russian Federation.”

Meanwhile, another opposition group scheduled an unauthorised rally in the same vicinity from May 6-10 and the Moscow Department of the Interior deployed heavily equipped and armed forces throughout the city center to prevent any riots or acts of terrorism.

On the day of the march, the turnout was significantly higher than anticipated, but was initially peaceful.  When the protesters approached the entrance to Bolotnaya Park, as per the authorized route, they were barred from entering by a cordon of riot police who directed them to an alternate area. The organizers tried to explain to the police that the re-route did not allow them to follow the agreed plan. When the police showed no willingness to negotiate or even to communicate with them, the organizers called for a sit-in as an attempt to negotiate a passage through the park at Bolotnaya Square, which they considered to be a part of the agreed meeting
venue. Eventually, the organizers abandoned the sit-down protest and found their way to the stage which had been set up for the meeting. The police ordered one of the organizers to close the meeting, and although she made the requested announcement, the crowd could not hear her and did not disperse. The police then began to forcibly break up the crowd. At this point the police began arresting people, a Molotov cocktail was thrown into the crowd and there were some violent confrontations between the police and protesters before the crowd was cleared.

The Government contended that the assembly leaders had intended to take the march outside the designated area, to set up a protest campsite and, possibly, to hold an unauthorized assembly near the Kremlin. The assembly leaders, on the other hand, accused the authorities of having framed the demonstration so that a confrontation would become inevitable and that a peaceful rally could be portrayed as an aggressive mob warranting a violent crackdown. They denied that it had been their original intention to go outside the designated meeting area; conversely, the sit-in was a reaction to the authorities’ unilateral change of the meeting layout.

The rally leaders also argued that the assembly wasn’t suspended before being terminated, as required by section 15.3 of the Public Events Act. The authorities countered that they were justified in annuoncing an emergency termination under section 17.3, which curtails the termination procedure in the event of mass disorder.

In any event, during the dispersal of the demonstration the applicant was arrested and detained for 36 hours. He was sentenced to 15 days’ administrative detention for obstructing traffic and disobeying police orders. He alleged that the authorities had intended from the outset to suppress the rally in order to discourage the protest and political dissent and had implemented crowd-control measures in order to provoke a confrontation that would serve as a pretext for the early dispersal of the meeting. He additionally argued that his own arrest, pre-trial detention and ensuing conviction for an administrative offence had been arbitrary and unnecessary.

Decision Overview

The Court began by noting that Member States must refrain from applying unreasonable indirect restrictions upon the right to assemble peacefully and have a duty to take reasonable and appropriate measures with regard to lawful demonstrations to ensure their peaceful conduct and the safety of all citizens. Moreover, public authorities are obliged to show a certain degree of tolerance towards peaceful gatherings, even unlawful ones, if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance. The limits of tolerance expected toward an unlawful assembly depend on the specific circumstances, including the duration and the extent of public disturbance caused by it, and whether its participants had been given sufficient opportunity to present their views. Where demonstrators engage in acts of violence, interferences with their right to freedom of assembly are justified for the prevention of disorder or crime and for the protection of the rights and freedoms of others.

However, the Court said that an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by participants in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behavior. In the present case the applicant arrived at the site of the public event with the intention of taking part in the meeting; however, this became impossible because the meeting was disrupted and then cancelled, and the main speakers were arrested. This part of the case was distinct from the complaint about the arrest and detention. Concerning the authorities’ obligation to ensure the peaceful conduct of the assembly, the Court observed that though the application of security measures constituted a restriction on the exercise of the right to freedom of assembly, the authorities also had a positive obligation to ensure the peaceful conduct of the assembly and the safety of all citizens. In the present case, the assembly leaders accused the authorities of having framed the demonstration so that a confrontation would become inevitable and a peaceful rally could be portrayed as an aggressive mob warranting a violent crackdown. On the other hand, the Government contended that the assembly leaders had intended to march outside the designated area, set up a protest campsite and possibly, to hold an unauthorized assembly near the Kremlin. The Court stated that although Article 11 of the Convention does not guarantee a right to set up a campsite at a location of one’s choice, such temporary installations may in certain circumstances constitute a form of political expression. The Court noted that the decision to close the park to the rally does not appear in itself hostile or a means to curtail the rally, given that the embankment had sufficient capacity to accommodate the assembly. However, the organizers objected above all to the discovery of a last-minute alteration of the venue layout, which allegedly led to a misunderstanding and the disruption of the rally. The Court found that the sit-in leaders made it known to the police that they wanted to have the park opened up for the assembly. The fact that the police were exercising caution against the park being taken over by a campsite, or their unwillingness to allow the protesters to proceed in the direction of the Kremlin, or both, might have justified the refusal to allow access to the park, given that in any event the assembly had sufficient space for a meeting. However, the Court said that whatever course of action the police deemed correct, they had to engage with the sit-in leaders in order to communicate their position openly, clearly and promptly. The Court found that the police authorities had not provided for a reliable channel of communication with the organizers before the assembly and had made insufficient effort to communicate with the assembly organizers to resolve the tension caused by the confusion about the venue layout. The failure to take simple and obvious steps at the first signs of conflict allowed it to escalate, leading to the disruption of the previously peaceful assembly.

In the view of the Court, the authorities did not comply with even the minimum requirements in their duty to communicate with the assembly leaders, which was an essential part of their positive obligation to ensure the peaceful conduct of the assembly, to prevent disorder and to secure the safety of all the citizens involved. There had therefore been a violation of Article 11.

Concerning the termination of the assembly and the applicant’s arrest, detention and charges, the Court considered that irrespective of whether the domestic requirements for “mass disorder” had been met, tensions were focused at one particular bridge while the rest of the venue remained calm. The authorities did not attempt to separate the turbulent sector and target the problems there, so as to enable the meeting to continue in the area of the stage where the situation remained peaceful. The Court was therefore not convinced that the termination of the meeting at Bolotnaya Square was inevitable. Concerning the actions taken against the applicant personally the Court found that the applicant remained within the perimeter of the cordoned meeting venue and that his behavior remained strictly peaceful. It did not appear from any submissions that he was among those who manifested even “passive resistance”. The Court underlined that even after the assembly was officially terminated, the guarantees of Article 11 continued to apply in respect of the applicant, notwithstanding the clashes at Malyy Kamenny bridge. Accordingly, any measures taken against him in the given situation had to have complied with the law, pursued a legitimate aim and been necessary in a democratic society within the meaning of Article 11 § 2. The Court found the severity of the measures applied against the applicant entirely devoid of any justification as he was not accused of violent acts, or even of “passive resistance”, in protest against the termination of the assembly. Even assuming that the applicant’s arrest, pre-trial detention and administrative sentence complied with domestic law and pursued one of the legitimate aims enumerated in Article 11 § 2 of the Convention, presumably public safety, the measures taken against him were grossly disproportionate to the aim pursued. There was no “pressing social need” to arrest the applicant and to escort him to the police station and there was especially no need to sentence him to a prison term, albeit a short one.

The Court stressed, that the arrest, detention and ensuing administrative conviction of the applicant could not have failed to have the effect of discouraging him and others from participating in protest rallies or indeed from engaging actively in opposition politics. Undoubtedly, those measures were also likely to deter other opposition supporters and the public at large from attending demonstrations and, more generally, from participating in open political debate. The chilling effect of those sanctions was further amplified by the large number of arrests on the day, which attracted broad media coverage. On these grounds the Court concluded that there had been a violation of Article 11 on account of the applicant’s arrest, pre-trial detention and administrative penalty.

Concerning the alleged violation of Article 5, the Court noted that the applicant had been deprived of his liberty for about 36 hours. According to domestic law the duration of administrative detention should generally not exceed three hours, which is regarded as reasonable and sufficient time for drawing up an administrative offence report. In the present case the applicant could have been discharged as soon as the administrative report was ready. However, he was, for no explicit reason, formally remanded in custody to secure his attendance at the hearing before the justice of the peace. The 36-hour detention pending trial was thus unjustified and arbitrary and amounted to a violation of Article 5.

Concerning the alleged violation of Article 6 the domestic courts had refused to accept additional evidence or to call the police officers who had arrested the applicant. Additionally, the national courts failed to consider the lawfulness of the police order which had resulted in the applicant being punished for actions protected by the Convention without the police having to justify the interference with his right to freedom of assembly. The Court did not find that there had been a fair hearing, and there was thus a violation of Article 6.

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Table of Authorities

Related International and/or regional laws

  • ECHR, art. 11
  • ECHR, art. 5
  • ECHR, art. 6
  • Office for Democratic Institutions and Human Rights (ODIHR) and the Venice Commission 2010 Guidelines on Freedom of Peaceful Assembly (CDL‑AD(2010)020)
  • ECtHR., Schwabe and M.G. v. Germany, App. Nos. 8080/08 and 8577/08 (2011)
  • ECtHR., Primov and Others v. Russia, App. No. 17391/06 (2014)
  • ECtHR, Ziliberberg v. Moldova (dec.), App. No. 61821/00 (2004)
  • ECtHR., Christian Democratic People’s Party v. Moldova (no. 2), App. No. 25196/04 (2010)
  • ECtHR., Alekseyev v. Russia, App. Nos. 4916/07, 25924/08 and 14599/09 (2010)
  • ECtHR., Sergey Kuznetsov v. Russia, App. No. 10877/04 (2008)
  • ECtHR., The United Macedonian Organisation Ilinden and Ivanov v. Bulgaria, App. No. 44079/98 (2005)
  • ECtHR., Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, App. Nos. 29221/95 and 29225/95 (2001)
  • ECtHR, Navalnyy and Yashin v. Russia, App. No. 76204/11 (2014)
  • ECtHR., Éva Molnár v. Hungary, App. No. 10346/05 (2008)
  • ECtHR, Cisse v. France, App. No. 51346/99 (2002)
  • ECtHR, Kudrevičius and Others v. Lithuania [GC], App. No. 37553/05 (2015)
  • ECtHR., Protopapa v. Turkey, App. No. 16084/90 (2009)
  • ECtHR., Plattform “Ärzte für das Leben” v. Austria, App. No. 10125/82 (1988)
  • ECtHR., Giuliani and Gaggio v. Italy [GC], App. No. 23458/02 (2011)
  • ECtHR., Oya Ataman v. Turkey, App. No. 74552/01 (2006)
  • ECtHR., Taranenko v. Russia, App. No. 19554/05 (2014)
  • ECtHR, Fáber v. Hungary, App. No. 40721/08 (2012)
  • ECtHR., Ezelin v. France, App. No. 11800/85 (1991)
  • ECtHR, United Communist Party of Turkey and Others v. Turkey, App. No. 19392/92 (1998)
  • ECtHR., Gerger v. Turkey [GC], App. No. 24919/94 (1999)
  • ECtHR., Gün and Others v. Turkey, App. No. 8029/07 (2013)
  • ECtHR, Rai v. United Kingdom, Nos. 26258/07 and 26255/07 (2009)
  • ECtHR., Kasparov and Others v. Russia, App. No. 21613/07 (2013)
  • ECtHR., S. and Marper v. the United Kingdom [GC], App. Nos. 30562/04 and 30566/04 (2008)
  • ECtHR., Ashughyan v. Armenia, App. No. 33268/03 (2008)
  • ECtHR., Coster v. the United Kingdom [GC], App. No. 24876/94 (2001)
  • ECtHR., Galstyan v. Armenia, App. No. 26986/03 (2007)
  • ECtHR., Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), App. No. 50841/99 (2001)
  • ECtHR., Barraco v. France, App. No. 31684/05 (2009)

Other national standards, law or jurisprudence

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.

The decision was cited in:

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