Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The European Court of Human Rights held that Russia violated the rights to freedom of expression, peaceful assembly, personal liberty, effective remedies, and guarantees of fairness by denying approval for a peaceful anti-corruption protest and then arresting and fining the organizer. Ms. Dmitriyeva applied for authorization to hold a peaceful assembly against government corruption in Russia to join a series of protests to be held nationwide on March 26, 2017. The regional authorities denied the request to hold the protest because they had other events planned at those locations. The protest was held despite not having authorization and took place without incident, but in the end, its organizer was arrested for a few hours, fined, and sentenced to provide community service work hours for having promoted and held an unauthorized assembly by the Aviastroitelnyy District Court of Kazan and the Vakhitovskiy District Court. Both decisions were affirmed by the Supreme Court of Tatarstan. The ECtHR applied the legal standards set in its previous case “Lashmankin and Others v. Russia” in which Russia had been convicted of violating the European Convention on Human Rights due to similar facts. In particular, the ECtHR held that expression against government corruption has strong public interest and is specially protected by the European Convention. Furthermore, the ECtHR held that a peaceful assembly cannot be banned merely because there are other planned events without considering whether they could all be carried out or made compatible, or without providing a reasonable alternative. It also considered the subsequent arrest of the organizer to be a disproportionate restriction on freedom of expression.
On March 14, 2017, Russian citizen Ms. Elvira Rashitovna Dmitriyeva notified the Kazan City Administration of her intention to organize a meeting from 1 p.m. to 4 p.m. on March 26, 2017, to protest against corruption in Russia and to demand the resignation of Prime Minister Dmitri Medvedev. The protest was in response to a call by Aleksey Navalnyy —who from YouTube asked his followers to protest on March 26, 2017, against the corruption of the Prime Minister. Ms. Dmitriyeva proposed to the city administration three places for holding the protest, including a specially designated place for holding public events in Krylya Sovetov Park.
On March 16, 2017, the Kazan City Administration denied permission for the gathering, arguing that other unspecified public events were scheduled at the locations proposed by Ms. Dmitriyeva. However, Ms. Dmitriyeva appealed the dismissal to the Vakhitovskiy District Court of Kazan.
On March 23, 2017, Ms. Dmitriyeva posted a message on the “VKontakte” platform criticizing the Kazan City Administration for not approving her first protest application of March 16 and announced that the final court decision was pending. She also considered that Russian citizens had the right to peacefully assemble and called for a meeting at “Krylya Sovetov Park” at 2 p.m. on March 26, 2017, to protest against corruption.
On March 24, 2017, the Vakhitovskiy District Court found that Ms. Dmitriyeva was partially right in its claim contesting the Administration’s rejection of the March 16 assembly request. In this regard, it considered that the Administration’s refusal was unlawful and that it should have proposed a reasonable alternative in order to hold the protest.
On March 26, 2017, Ms. Dmitriyeva held the protest in “Krylya Sovetov Park,” where according to her version 1500 participants gathered peacefully for one hour. At the end of the demonstration, Ms. Dmitriyeva was arrested on her way home and taken to a police station. The police filed a report alleging that Ms. Dmitriyeva may have committed “administrative offenses” under Articles 20.2 and 19.3 of the Administrative Offenses Code for holding a public event without authorization. At 8:35 p.m. she was released.
On March 27, 2017, the Aviastroitelnyy District Court of Kazan found Ms. Dmitriyeva guilty of violating Articles 20.2 and 19.3 of the Administrative Offenses Code for organizing an illegal public event. Accordingly, the court sentenced her to a fine of 1,000 Russian rubles and 20 hours of community service. Ms. Dmitriyeva appealed this decision on the grounds that the protest was lawful in accordance with the March 24, 2017 decision of the Vakhitovskiy District Court and because the Administration failed to comply in offering her a reasonable alternative. It also remarked that the public event did not cause any risk to the population and no illegal conduct had been committed.
On May 17, 2017, the Supreme Court of Tatarstan Republic upheld the March 27 judgment and considered it was lawful, well-reasoned, and justified.
On July 12, 2017, the Vakhitovskiy District Court ruled that Ms. Dmitriyeva violated Article 20.2 of the Code of Administrative Offenses for organizing an event through internet platforms despite not having authorization. Accordingly, the court ordered her to pay a fine of 10,000 rubles. On August 9, 2017, the Supreme Court of Tatarstan Republic upheld this judgment too. The Supreme Court found that the judgment was legal, well-reasoned, and justified as the “Public Event Act” expressly prohibits the promotion of public events that were not authorized.
In parallel, on September 12, 2017, the Vakhitovskiy District Court rejected a claim by Ms. Dmitriyeva for “non-pecuniary damages” caused by the Administration’s negligence in not providing her with a reasonable alternative to hold her. The court found that Ms. Dmitriyeva did not prove that she had suffered non-pecuniary damages. On December 14, 2017, the Supreme Court of Tatarstan Republic upheld the September 12 judgment on the grounds that the decision was lawful, reasonable, and justified.
On August 16, 2017, and January 22, 2018, Ms. Elvira Rashitovna Dmitriyeva filed two applications (60921/17 and 7202/18, respectively) against the Russian Federation before the European Court of Human Rights on the grounds that her rights to freedom of expression, peaceful assembly, and access to an effective remedy were violated.
The third section of the European Court of Human Rights unanimously decided that Russia violated the applicant’s rights to freedom of expression, association, and peaceful assembly by denying approval for a peaceful protest against government corruption and then illegitimately arresting and fining her. The ECtHR had to decide whether the government’s refusal of the applicant’s request to hold a peaceful protest and its subsequent arrest and imposition of penalties was in accordance with European human rights standards.
The first issue examined by the ECtHR was whether Russia violated the right to peaceful assembly by refusing approval to hold a protest in the locations requested by Ms. Dmitriyeva and by its subsequent conviction for organizing that event and disobeying the police.
Ms. Dmitriyeva argued that the rejection of her request to hold the public event by the Kazan City Administration, and her subsequent arrest at the end of the protest, violated her right to peaceful assembly under Article 11 of the European Convention on Human Rights. Ms. Dmitriyeva remarked that her request was rejected because it was an event in opposition to the Russian government’s corruption that adhered to a call for mass protests across the country on the same day. She claimed that her public event was peaceful, non-disturbing, and of great public interest because it was about corruption in Russia. Further, she argued that her detention, lasting over four hours, the fines imposed upon her, and the twenty hours of community service she was sentenced to, were solely because she had held a protest in opposition to the government’s corruption.
Russia held that “the subjection of public assemblies to an authorization or notification procedure did not normally encroach on the essence of the right to freedom of assembly, as long as the purpose of the procedure was to allow the authorities to take reasonable and appropriate measures in order to guarantee the smooth conduct of any assembly, meeting or other gatherings” [para. 47].
The ECtHR referred to its judgment Kudrevičius and Others v. Lithuania [GC], no. 37553/05, 2015, for the purpose of defining the principles governing the right to peaceful assembly. Likewise, the European Court held that in “the leading case of Lashmankin and Others v. Russia, nos. 57818/09, 7 February 2017, the Court found a violation in respect of issues similar to those in the present case” [para. 49]. In “Lashmankin”, the ECtHR held that Russia had violated the applicants’ rights to freedom of assembly and to an effective remedy, Articles 11 and 13 respectively, by imposing a series of restrictions on the place, time, or manner of assemblies and failing to provide any means to allow a judicial remedy against the restrictions before the meetings took place. According to the facts of “Lashmankin” the Russian authorities imposed restrictions on various gatherings proposed by the plaintiffs to commemorate the murder of a famous human rights lawyer and a journalist, to protest against a bill banning the adoption of children of Russian nationality by U.S. citizens, and to promote gay rights. The ECtHR held that the Russian authorities had engaged in interference with the applicants’ rights that could not be justified given the wide discretion enjoyed by the executive, without effective legal safeguards against the consequent arbitrary and discriminatory exercise of its powers.
Under the premise that this case must be solved with the standards applied in “Lashmankin”, the ECtHR held that “having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considered that in the instant case, the interference with the applicant’s freedom of assembly was based on legal provisions which did not meet the Convention’s quality of law requirements, and were moreover not necessary in a democratic society” [para. 50]. Finally, the ECtHR concluded that Russia violated the right to peaceful assembly in Article 11 of the European Convention on Human Rights.
The second issue to be decided by the ECtHR was whether Russia violated Ms. Dmitriyeva’s right to effective remedies to protect her right to peaceful assembly.
Ms. Dmitriyeva argued that while the domestic judges recognized the illegality of the Kazan City Administration’s decision, they never granted her express permission to hold the protest at one of the three requested locations. On the contrary, Russia argued that Ms. Dmitriyeva could have turned to the domestic courts and obtained a prompt, partially favorable decision before the day she was scheduled to hold the public event. However, the state acknowledged that domestic judges “had no competence to examine the ‘reasonableness’ of any proposal to change the location” [para. 56].
The ECtHR held that Article 13 guarantees the availability at the domestic level of effective remedies to protect human rights under the European Convention. It also recalled that in Lashmankin and Others v. Russia it had established that “the notion of an effective remedy implies the possibility of obtaining an enforceable decision concerning such restrictions before the time at which the assembly is intended to take place” [para. 59]. Next, the ECtHR recognized that, on this point, the facts of this case are different from the “Lashmankin” case since Russia adopted a new Code of Administrative Procedures in 2015 creating new remedies that did not exist at the date of the facts of “Lashmankin”. With this in mind, the ECtHR found those developments in domestic law rectified the defect recognized in the previous case by allowing a judicial decision to be obtained regarding a refusal to approve a public event’s location, time, or manner before its planned date [para. 60]. However, the ECtHR held that according to the facts proved by Ms. Dmitriyeva, “given that the District Court’s decision in the applicant’s favor issued before the planned date of the public event was not enforced, contrary to the requirements of the domestic law, the Court cannot accept that the remedies provided by the national law were effective in the applicant’s case” [para. 64]. In conclusion, the ECtHR held that Russia violated the right to effective remedies under Article 13 of the European Convention.
The third issue that the ECtHR had to decide was whether the arrest of Ms. Dmitriyeva, for posting a message on the website “Vkontakte” about the protest, violated her right to freedom of expression.
Ms. Dmitriyeva argued that her message “simply informed the readers about her intention to hold a meeting” [para. 70]. She clarified that her message did not contain any call or summons to participate in the event in violation of Russian domestic laws. On the contrary, Russia argued that its laws prohibit campaigning for public events that are not authorized by the regional government.
The ECtHR held that freedom of expression is one of the essential parts of the democratic system and that it includes not only the possibility of disseminating ideas that are considered agreeable but also of those “that offend, shock or disturb. Such are the demands of pluralism, tolerance, and broadmindedness without which there is no ‘democratic society’” [para. 74].
Next, the ECtHR held that for the applicant’s conviction for having called for a protest to be legitimate, it must be “prescribed by law”, “pursue one or more legitimate aims” and be “necessary in a democratic society”.
The ECtHR noted that Article 20.2 of the Code of Administrative Offenses and Section 10 of the Public Event Act prescribe that organizers of public events may only campaign to call for participation in such events only when the event has been approved by the competent regional authority. However, the European Court held that “even assuming that the applicant’s Internet post had contained calls to participate in the public event and therefore amounted to ‘campaigning’ in breach of section 10 paragraph 1 of the Public Events Act, the Court finds that her conviction violated her right to freedom of expression” [para. 81].
The ECtHR emphasized that neither the Government nor the Russian domestic courts referred to legitimate purposes for arresting Ms. Dmitriyeva. In particular, it remarked that Russia has never claimed that the public event presented a risk to public safety or might lead to public disorder or crime. Further, the ECtHR stated that the applicant’s message has public interest and is entitled to strong protection.
Moreover, the ECtHR added that there was no reason to believe that the public event organized by Ms. Dmitriyeva would not be peaceful and that the refusal was only due to formal reasons because the locations chosen by Dmitriyeva were to be occupied by other events. However, the ECtHR had already determined in the “Lashmankin” case that “a refusal to approve the venue of a public assembly solely on the basis that it was due to take place at the same time and location as another public event and in the absence of a clear and objective indication that both events could not be managed in an appropriate manner through the exercise of policing powers, was a disproportionate interference with the freedom of assembly” [para. 87].
The fourth issue to be decided by the ECtHR was whether the arrest of Ms. Dmitriyeva by the Russian police constituted a violation of her right to liberty under Article 5 of the European Convention.
Ms. Dmitriyeva argued that there was no need to arrest her and that the police could have made a written report at the site of the protest if they considered that the event violated the Code of Administrative Offenses. Conversely, Russia claimed that Ms. Dmitriyeva committed an unlawful administrative offense and that her arrest was fully justified.
The ECtHR recalled that “the facts of the present case are similar to those in Navalnyy and Yashin v. Russia (no. 76204/11, §§ 68 and 93, 4 December 2014), Frumkin v. Russia (no. 74568/12, § 150, 5 January 2016) and Lashmankin and Others (cited above, §§ 486-92), where a violation of Article 5 § 1 was found. The Government has not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case” [para. 96]. Under this premise, the ECtHR held that “escorting of the applicant to the police station and her administrative arrest did not comply with Russian law and were therefore not lawful within the meaning of Article 5 § 1.” [para. 97].
To conclude, the ECtHR held that Russia violated the rights to freedom of expression, peaceful assembly, personal liberty, effective remedies, and guarantees of fairness and ordered the State to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44(2) of the Convention, the following amounts: (i) one hundred and forty-nine euros, plus taxes, for pecuniary damage; (ii) twelve thousand five hundred euros, plus taxes, for non-pecuniary damage; (iii) plus costs and expenses of the litigation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In its decision, the European Court of Human Rights expanded the freedom of expression and the right to peaceful assembly by establishing that both the arrest and the obstacles in issuing a permit for a public protest constituted violations of the European Convention on Human Rights. In particular, the ECtHR recalled its vast jurisprudence and standards on the protection of freedom of expression and its intimate link with the right to peaceful assembly. In addition, the ECtHR held that speech against government corruption has strong public interest and deserves special protection. Furthermore, the ECtHR considered that the refusal to issue a permit for an anti-corruption protest on the sole ground that another activity would take place at the required locations, without providing any reasonable alternative, was illegitimate under the European Convention. In addition, the ECtHR found contrary to the European Convention’s right to freedom of expression the arrest of the organizer of the peaceful protest for having communicated on an internet platform her intention to organize the event.
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