Freedom of Association and Assembly / Protests
Vajnai v. Hungary
Closed Expands Expression
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The European Court of Human Rights ruled that the arrests of a Russian political activist for participating in irregular public gatherings were a violation of his right to freedom of assembly. All of the arrests arose from peaceful gatherings which had not been authorised, and involved sanctions ranging from fines to periods of imprisonment. All the domestic courts had held that the arrests were lawful and the activist then approached the European Court of Human Rights. The Court noted that there had been a pattern of similar cases in which Russian authorities had arrested individuals for participating in gatherings, and held that the Russian laws on requiring prior authorization were over broad and granted authorities too wide a discretion. It held that all the arrests of the activist had occurred after peaceful gatherings and had not served the purpose of preventing disorder or protecting the rights of others, and so had violated the right to freedom of assembly.
On March 5, 2012, Aleksey Anatolyevich Navalnyy, a Russian “political activist, opposition leader, anti-corruption campaigner and popular blogger”, participated in a protest in Moscow’s Pushkinskaya Square [para. 11]. The protest was against the “allegedly rigged Russian presidential elections” and had received approval from the municipal authorities [para. 13]. After the formal protest, Navalnyy attended a meeting held with a State Duma deputy which the government characterized as an “illegal gathering”. Navalnyy was arrested, alongside other participants in the meeting and charged with a “breach of the established procedure for conducting public events, an offence under Article 20 § 2 of the Code of Administrative Offences” [para. 16]. Navalnyy was released the next day but on March 15 was found guilty “of taking part in an irregular public gathering conducted without prior notification” and fined RUB1000 (25 Euros at the time). His appeal of this conviction failed.
On May 8, 2012, Navalnyy met with other activists at an “overnight ‘walkabout’” and was arrested at around 4am and charged under the same Article of the Code of Administrative Offences. Although he was released later that morning he was again arrested and charged with the same offence just before midnight that night. In his trials, the police alleged Navalnyy had been part of a large group of people obstructing traffic and had shouted slogans – both of which allegations Navalnyy denied. He was found guilty, fined RUB1000 and was unsuccessful in his appeal.
On May 9, 2012, at 5am, Navalnyy arrived to take part in another informal meeting with a State Duma deputy and Victory Day celebrations. At 6am he was arrested without warning and detained. Later that day he appeared before a Justice of the Peace who rejected Navalnyy’s and three eyewitnesses’ accounts and found that Navalnyy had “taken part in an irregular public meeting …, had disobeyed a lawful order from the police to disperse [and] had chanted the slogans ‘Russia without Putin!’ and ‘Putin is a thief!’ and had refused to leave the square” [para. 28]. Navalnyy’s appeal was dismissed.
On October 27, 2012, Navalnyy held a solo, static demonstration – as part of a “series of peaceful protests” – to protest “repression and torture” [para. 31]. After his demonstration he was walking with a group of people, and was arrested on the grounds that he had “organised an irregular march without prior notification” [para. 32]. On October 30, a Justice of the Peace refused to admit a video recording of the arrest and a report from an NGO and dismissed the eyewitness accounts in finding Navalnyy guilty. He was fined RUB 30,000 (740 Euros). Navalnyy’s appeal was unsuccessful.
On February 24, 2014, Navalnyy attended court to hear the judgment against activists charged with “participation in mass disorders” in May 2012. The court precinct had been cordoned off and Navalnyy waited for the judgment in the street where he was arrested on the grounds that he was “holding an irregular gathering and chanting political slogans” – allegations Navalnyy denied [para. 35]. He was charged under Article 20 § 2 of the Code of Administrative Offences and released early that afternoon. Later that day, Navalnyy took part in a “peaceful public gathering” following the conviction of the activists. He was arrested and charged with “disobeying a lawful order of the police” under Article 19 § 3 of the Code of Administrative Offences. The next day he was found guilty and sentenced to seven days’ imprisonment. On March 7, 2014, a separate court found him guilty of “taking part in a meeting which had not been notified to the competent authority in accordance with the procedure provided by law” in relation to his alleged participation in an unlawful gathering on February 24. He was fined RUB 10,000 (200 Euros). His appeals to both of these convictions were unsuccessful.
Navalnyy approached the European Court of Human Rights, arguing that the seven arrests on the grounds that he participated in “unauthorised public events” were violations of his right to freedom of peaceful assembly, protected by Article 11 of the European Convention on Human Rights.
Article 11 states: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
The matter was first heard by the Third Section of the European Court of Human Rights which held, unanimously, that all Navalnyy’s arrests violated his right to freedom of assembly under Article 11. The Third Section had found an interference of Article 11 in all seven arrests, and stressed that even for occasions when Navalnyy had not intended to hold a public gathering those assemblies fell within Article 11’s scope. It also noted that Navalnyy’s case was a representation of a practice in Russia “whereby the police would interrupt such a gathering, or a perceived gathering, and arrest the participants as a matter of routine” [para. 87]. The Court held that there was no need to examine whether the interference had a legitimate aim because the Government’s actions had been disproportionate to the stated aim of “prevention of disorder and crime and the protection of rights and freedoms of others” [para. 88]. It found there was no “pressing social need” for the arrests and detentions and that they “had a serious potential to have a chilling effect” by deterring participation in public gatherings and debate [para. 88].
The matter was then referred to the Grand Chamber.
The Grand Chamber delivered a unanimous judgment. The central issue for the Court’s determination was whether the conduct of the Russian authorities in arresting Navalnyy after participating in peaceful (but unauthorized) gatherings infringed the right to freedom of assembly.
Navalnyy argued that on all seven occasions the Government had interfered with his right to freedom of peaceful assembly and that, if the gathering had not been authorized, the nature of those gatherings as small and with low risk meant that “the authorities could be expected to show tolerance” [para. 90]. He also submitted that it was difficult to obtain authorization for gatherings and that notifcations for gatherings in Moscow were “systematically rejected with no appropriate alternative proposals as required by the domestic law” [para. 91].
The Russian Government submitted that Navalnyy had not argued before the domestic courts that his right to freedom of assembly under Article 11 of the Convention had been breached, and had stated that in some of the events leading to his arrest he had “expressly denied that he had been participating in a public assembly” [para. 54]. It accepted that the arrests had constituted an interference in Navalnyy’s right, but maintained that it was necessary for the prevention of disorder and crime and to protect others’ rights. The Government argued that all seven instances involved “unauthorised public gatherings”, that the police had “lawfully intercepted” the gatherings and that the gatherings had caused disruption and noise [para. 94]. It submitted that the authorities had demonstrated tolerance by, on two occasions, only arresting Navalnyy long after the gathering had supposedly ended. The Government criticized the Third Section’s reference to a Russian practice of disrupting public gatherings and noted that thirteen European member states do permit the dispersal of gatherings which had sought prior notification.
The Court held that the Government accepted that, in relation to his Article 11 rights, Navalnyy had exhausted domestic remedies.
The Court discussed the nature of the right to freedom of assembly and reiterated its importance in a democracy. It noted that, so as to ensure that the right is not interpreted restrictively, the Court has “refrained from formulating the notion of an assembly, which it regards as an autonomous concept, or exhaustively listing the criteria which would define it” [para. 98]. The Court has therefore interpreted private and public meetings, static and moving protests, and individual or group demonstrations – as long as they are peaceful – as falling under the protection of Article 11. It stressed that Article 11 provides protection “independent of whether that gathering was conducted in accordance with a procedure provided for by the domestic law” [para. 99]. The Court acknowledged that a notification or authorization requirement in domestic law does not infringe the right if the purpose of those requirements is “to allow the authorities to take reasonable and appropriate measures in order to guarantee its smooth conduct” [para. 100]. If the gathering is only permissible if there has been prior notification or authorization, however, those requirements may infringe Article 11. The Court also noted the close relationship between the rights to freedom of assembly and to freedom of expression (protected by Article 10 of the Convention), and that where a demonstration is designed to express a personal expression the two rights must be considered together. It stated that “[t]he link between Article 10 and Article 11 is particularly relevant where the authorities have interfered with the right to freedom of peaceful assembly in reaction to the views held or statements made by participants in a demonstration or members of an association” [para. 102]. The Court stressed that for an interference in the right to freedom of assembly to occur there need not be a complete ban: restrictions to the ability to exercise the right and a ban on a gathering which nevertheless still took place still constitute interferences with the right.
The Court examined all seven instances which led to Navalnyy’s arrests. It found that the “walkabouts” were protected by Article 11 because they were the “expression of personal opinions by a group of people” and so constituted assemblies. It also found that even though a static demonstration may not have constituted a public event under Russian law and Navalnyy had not intended to hold a march after his static demonstration “there was still a link between the measures taken against him and his exercise of the right to freedom of assembly” [para. 109]. It also noted that although Navalnyy would not have thought his attendance at court for the activists’ judgment constituted participating in a public assembly that required prior notification, given the Russian law on public gatherings, that conduct was still protected by Article 11 as it constituted a “peaceful assembly”.
The Court then examined whether the interference in Navalnyy’s rights was (a) prescribed by law; (b) pursued a legitimate aim; and (c) necessary in a democratic society.
The Court referred to Kudrevičius v. Lithuania [GC] and noted that for an interference to be “prescribed by law”, “the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise” [para. 115]. It noted that, for four of Navalnyy’s arrests, the authorities acted under section 16 of the Public Events Act and so the interference “has a basis in domestic law” [para. 116]. However, because that provision allowed broad discretion in the interpretation of what conduct constituted a public event it the Court questioned whether “the manner of application of the relevant law was sufficiently foreseeable to meet the quality requirement inherent in the autonomous notion of lawfulness” [para. 118]. However, the Court determined that the provision “raises important questions extending beyond a mere analysis of its quality and foreseeability” and so examined whether the interference pursued a legitimate aim and was necessary in a democratic society [para. 119].
The Court referred to Merabishvili v. Georgia [GC] in recognizing that the categories for legitimate aims were broad and that “in most cases [the Court] deals with the point summarily” [para. 120]. It examined whether the seven arrests of Navalnyy “pursued the legitimate aims of prevention of disorder or crime and the protection of rights and freedoms of others” [para. 123]. It held that when Navalnyy was arrested after walking away from his static demonstration on the grounds that the people who were walking with him or following him constituted an “unauthorised march” and his attendance (with a group of people) at the court to hear the activists’ judgment did not pursue any legitimate aim. Accordingly, the Court held that – for those two arrests – there had been a violation of Article 11. In respect of the other five arrests, the Court “seriously doubts that any legitimate aim provided for in Article 11 § 2 was pursued, but sees no need to reach a firm conclusion on this point, considering that the interference was in any event not ‘necessary’ for the reasons set out below” [para. 127].
In assessing whether the interference with Navalnyy’s right was necessary, the Court referred to Kudrevičius and Lashmankin v. Russia which had emphasized that solely a lack of prior authorization – without additional unlawful conduct – did not justify an interference in the right to freedom of assembly. Those cases had also emphasized the need for a “degree of tolerance” of disruption from public authorities. The Court applied the principles from its jurisprudence to the five situations leading to arrest which it had not already found to be violations of Article 11. The Court focused on the peaceful nature of the gatherings Navalnyy attended and their lack of major traffic disruption or threat of violence.
The Court concluded that the “authorities did not act in the manner compatible with the essence of the right to freedom of assembly, or with due recognition of the privileged protection under the Convention of political speech, debate on questions of public interest and the peaceful manifestation on such matters” [para. 133]. In respect of the arrests following the “walkabouts”, the Court emphasized the need for context and that the authorities “adopt measures based on the degree of disturbance caused by the impugned conduct and not on formal grounds, such as non-compliance with the notification procedure” [para. 137]. It stated that dispersal or arrest should only take place when there are serious risks to safety. The Court referred to its Lashmankin case where it had noted that the Russian notification procedure in terms of the Public Events Act is “unusually long” and that domestic courts have prioritized the lack of notification over whether there were any specific circumstances to justify an interference in the right to freedom of assembly [para. 140]. The Court found that “the legislative lacuna in the regulation of spontaneous assemblies was compounded by the rigid and formalistic enforcement of provisions on termination of public events conducted without notification” [para. 142].
The Court concluded that none of the five events evaluated under the “necessity” leg of the enquiry “entailed, if at all … disruption to ordinary life going beyond a level of minor disturbance” [para. 143]. It reiterated that “where irregular demonstrators do not engage in acts of violence the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance” [para. 143]. It held that the authorities had arrested Navalnyy without assessing the gatherings’ “level of disturbance” and that they “failed to show the requisite degree of tolerance to what they considered an unauthorised gathering” [para. 144].
The Court also criticized the use of criminal sanctions against Navalnyy as “a peaceful demonstration should not, in principle, be rendered subject to the threat of a criminal sanction and notably to deprivation of liberty” [para. 145]. It noted that the right to freedom of assembly was so important that individuals participating in assemblies should not face sanction unless they have committed an offence in addition to participating in a non-authorized gathering.
Accordingly, the Court held that in the second group of arrests the aim of preventing disorder or protecting the rights of others did not outweigh Navalnyy’s rights to freedom of assembly and so was not “necessary in a democratic society”. The Court described this group of arrests as demonstrating “a persistent failure by the national authorities to show tolerance towards unauthorised but peaceful gatherings and, more generally, to apply standards which are in conformity with the principles embodied in Article 11 of the Convention” [para. 148]. The Court mentioned a series of similar cases in which the Court had held that the Russian authorities had violated individuals’ rights to freedom of assembly but commented that, despite that, “it appears that the domestic practices have continued to violate Convention standards and even that legislative changes have been introduced, entailing further restrictions” [para. 149]. The Court noted that there were “structural problems” of overly broad definitions and wide discretion given to authorities and that this meant “any pursuit of national remedies would also be ineffective and devoid of any prospects of success” [para. 150].
The Court held that all seven times Navalnyy was arrested his rights under Article 11 were violated, and ordered the Russian Government to pay Navalnyy a total of 63 678 Euros.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Grand Chamber’s statements that the Russian authorities had not taken its previous decisions on freedom of assembly into account and that pursuit of national remedies was ineffective was a strong statement in protection of Russian individuals’ right to peaceful assembly in the country.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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