Freedom of Association and Assembly / Protests
Vajnai v. Hungary
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The European Court of Human Rights found that Russia had violated the right to freedom of expression of five individual demonstrators by terminating their demonstrations, bringing them to police stations and, in some cases, prosecuting the demonstrators for failing to notify the authorities of their protests. The five cases had been joined by the European Court of Human Rights because of their factual and legal similarities. All five cases concerned peaceful, and allegedly solo, demonstrations that would not usually require prior notification to the local authorities under Russian law on public assemblies. In 2012, the law on public assemblies was amended so that some solo demonstrations could still be classified as “public events” which required prior notification. The European Court of Human Rights examined the cases under the right to freedom of expression, rather than the right to the freedom of peaceful assembly, because the cases concerned solo demonstrations rather than public gatherings. The European Court determined that the swift termination of the demonstrations and the taking of the individuals to the police stations were disproportionate measures and did not disclose any pressing social need. The Court held that the authorities should have shown greater tolerance toward the peaceful protests and, in the cases where prosecution occurred, it found that the penalties imposed were likely to have a “chilling effect” on protests and solo demonstrations.
On June 19, 2004, the Russian federal government passed the Public Assemblies Act Federal Law No. FZ-54 (Act). The Act defined public events, delineated where public events could be held, and set out a requirement for notifying local authorities about such events. There was no requirement to notify the local authorities in cases involving solo demonstrations. In 2012, the Act was amended to state that regional statutes would determine the distance that must be kept between solo demonstrators. This distance could not exceed 50 meters. It also empowered the courts to determine that several solo demonstrations could be deemed to constitute a single public event if they shared the same goal and organization (the reclassification rule). In such cases, the notification procedure would need to have been complied with. Failure to notify the relevant authorities would constitute a violation of Article 20.2 § 2 of the Code of Administrative Offences of the Russian Federation (CAO). The Russian government claimed that the notification requirement allowed for the balance of individual rights and public safety.
This case concerned the application of these laws in five individual cases between 2006 and 2012. They had all been arrested, taken to a police station, and released after some hours. Multiple of the demonstrators were charged with violating CAO Article 20.2 § 2, those who were not charged were arrested or detained based on the belief that they had violated CAO Article 20.2 § 2.
The first case concerned Marina V. Novikova, who had conducted a protest outside of the State Duma in November 2006. During the protest, she held up a sign that read “Psychiatry kills our children on our taxes.” Ms. Novikava maintained that it was a “static solo demonstration” and that she had distanced herself from others who were also in front of the State Duma. She argued that, in light of this, her protest fell outside the notification requirement under the Act. She was arrested ten minutes into her protest and released after approximately three hours at the police station. She was later found guilty of taking part in a public event requiring prior notification (Article 20.2 CAO) and fined approximately 29 Euros. When finding that her protest constituted a group public event, the domestic courts took into account her being located at the object being picketed and the presence of other people.
The second case concerned Yuriy I. Matsnev, who held a solo demonstration in front of an administrative building in Kaliningrad. He was arrested, taken to a police station, and released two hours later. The Russian police claimed that they had brought him to the station because he did not have proper identification with him, and they needed to verify his identity. No charges were brought, but Mr. Matsnev filed a civil suit. The District Court of Kaliningrad awarded him approximately 149 Euros in non-pecuniary damages for the unlawful arrest.
The third case concerned Viktor M. Savchenko, who staged a demonstration when Vladimir Putin visited the village of Peshkovo. During his demonstration, the police told him to move to where journalists were filming. After he moved, a group of men in plain clothes ordered the police to arrest him. The police arrested him and he was released after three hours. He was subsequently charged with disorderly conduct for using “foul language” in a public place. He was convicted by a police officer and fined approximately 15 Euros. The conviction was subsequently overturned by the courts on procedural grounds. Mr. Savchenko attempted to bring civil proceedings challenging the police’s actions, but the courts found no evidence of unlawfulness on the part of the police.
The fourth case related to the arrest of Aleksandr M. Kirpichev following his solo demonstration at a bus stop. Five passers-by briefly stopped to look at him. He was arrested, convicted under Article 20.2 § 2 CAO for holding a public event without giving prior notice, and fined approximately 505 Euros. The applicant was also told that his failure to pay the fine would result in the fine being doubled or up to 15 days in jail. His conviction was upheld on appeal.
The fifth case concerned Valeriy L. Romakhin, who was arrested for his solo demonstration against the decision to close the Maritime University in Astrakhan. Another man was protesting across the street, fifty meters from Mr. Romakhin’s demonstration. The regional law set the minimum distance between solo demonstrators at twenty meters. Mr. Romakhin was convicted under CAO Article 20.2 § 2 and fined approximately 505 Euros. The courts considered that Mr. Romakhin and the other man had held a public static demonstration (common logistical organization, timing and claims disclosing a common goal), which by law required them to notify the local authorities in advance. On appeal, the fine was reduced to approximately 25 Euros.
Five individual complaints were lodged with the European Court of Human Rights, but the complaints were joined due to their factual and legal similarities. The complainants argued that their rights under Article 10 (freedom of expression) and Article 11 (freedom of assembly) of the European Convention on Human Rights had been violated.
The European Court of Human Rights (Court) began by stating that Article 10 of the European Convention on Human Rights (Convention) was the appropriate provision since all the cases related to solo demonstrations rather than the peaceful assembly with others. Nonetheless, the Court would apply the general principles it had established in the context of Article 11 of the Convention.
The Court first examined Ms. Novikova, Mr. Kirpichev, and Mr. Romakhin’s complaints. The Court had little trouble finding an interference of the right to freedom of expression in these cases and it observed that an interference can consist of measures taken before or during an assembly, as well as those that are imposed afterwards (e.g. penalties). The Court separated out different stages of the interference in these case into (i) the authorities’ actions in ceasing the demonstrations, (ii) the individual demonstrators being taken to the police stations, and (iii) their prosecution for an administrative offence resulting in a fine. The Court looked at whether each aspect of the interference was prescribed by law, in pursuit of a legitimate aim under Article 10 of the Convention, and necessary in a democratic society.
Prescribed by law
The Court first looked at the termination of the demonstrations and, since there were no specific arguments or submissions on whether the termination was lawful, it decided to leave the question open as to whether these were “prescribed by law”. Instead, it proceeded on the assumption that the authorities had a legal basis for putting an end to what they perceived was a non-notified public event, unlawful action, or unlawful violation of the regulations on public events. Similarly, the Court did not draw any general conclusions on whether taking the individuals to the police stations was “prescribed by law”. Nonetheless, the Court did find that the legal provisions serving for the basis of prosecuting Ms. Novikova were not sufficiently foreseeable. The Court took into account the legislative and jurisprudential changes that came about in order to address the issue of public events that were disguised as solo demonstrations. These changes came about in 2012, after Ms. Novikova’s prosecution. The Court considered that this response indicated a possible lacunae or insufficient regulation arising from the difficulties in differentiating between solo demonstrations and public events. The Court reasoned that “the legislation in force was not sufficiently foreseeable as to what conduct or omission could be classified as an offence on account of a breach of the notification requirement under the Public Assemblies Act, where there was a doubt as to whether the event in question was a group event (in the form of a meeting or a static demonstration), simultaneous solo demonstration or merely one solo demonstration”. [para. 131]
The Court was willing to accept, with reservation, that the termination of the demonstrations and bringing the individuals to the police stations pursued the legitimate aim of the “prevention of crime”. This was because, according to the authorities, these measures were aimed at putting an end to punishable unlawful conduct under Russian law. The Court’s reservation was that it had not been proven that the people concerned “organised an assembly or participated in one without prior notification” (in short, that they committed an offense). [para. 140] Moreover, the Court could find no evidence that the demonstrations raised national security considerations and, as the demonstrations were made up of one person (or several people, if the authorities were to be believed), the cases did not raise the matter of protecting the rights of others. Furthermore, the Court noted that the “prevention of public disorder” normally related to riots or other forms of public disturbance, which did not take place here. The demonstrations were only stopped because the prior notification requirement had not been met. On the legitimate aim being pursued by the prosecutions, the Court accepted that “prosecution for organising or participating in a demonstration for which no prior notification was made could be aimed at the prevention of disorder”. [para. 147]
Necessary in a democratic society
The Court took into account the fact that all demonstrations amounted to a form of political expression, which was given greater protection under Article 10 of the Convention. Furthermore, all demonstrations were peaceful in nature. It then looked at the proportionality of the three aspects of the interference.
Firstly, the swift termination of the demonstrations before the individuals could express their views was deemed to be disproportionate and not based on relevant or sufficient reasons justifying such measures. The Court conceded that a system of prior notification for public assemblies may be essential for the smooth conduct of such events by allowing the authorities to mimimize disruption to ordinary life. However, the Court noted the importance of the authorities showing a “degree of tolerance” to demonstrations that do not engage in acts of violence. The Court also highlighted that “a situation of unlawfulness, such as one arising under Russian law from the staging of a demonstration without prior notification, does not necessarily … justify an interference with a person’s right to freedom of assembly”. [para. 163] In these three cases, taking into account the number of people allegedly involved in the demonstrations, the Court concluded that “notification would not have served the purpose of enabling the authorities to take necessary measures in order to minimise any disruption to traffic or other security measures”. [para. 171] The Court concluded that tolerance should have been shown by the authorities and, had Russian law been violated by the lack of prior notification, a reasonable fine could have been imposed after the demonstration.
The Court then considered whether the taking of the individuals to the police stations after terminating their demonstrations was proportionate. The Court agreed that there may be legitimate reasons to take an individual to a police station in order to put an end to unlawful conduct where the individual refused to comply with a lawful order to cease such conduct. The Court found no compelling reasons to take the individuals to the police stations in these cases. It went on to say that its “findings concerning the termination of the events and the taking of [Ms. Novikova, Mr. Kirpichev, and Mr. Romakhin] to police stations constitute a strong indication of disproportionate interference in the exercise of their right to freedom of expression.” [para. 184]
Finally, the Court considered the proportionality of the prosecution of Ms. Novikova, Mr. Kirpichev, and Mr. Romakhin. The Court criticized the domestic court decisions in all of these cases and stated that it was not satisfied that the right to freedom of expression was properly taken into consideration when examining the charges against the three individuals. The Court also made some general observations about the “reclassification rule”, that empowered courts to determine that solo demonstrations were public events. The Court noted that the rationale for the notification requirement was to “provide the authorities with an opportunity to comply with their constitutional requirement to respect and protect individual rights and freedoms, and to take the necessary measures aimed at ensuring that participants in an event and other people are safe”. [para. 197] The Court reasoned that prosecution for failing to notify a public event which was subject to the “reclassification rule” had to correspond to these aims. The Court held that these aims would normally be fully attainable through the reasonable application of the distance requirement, without any “pressing social need” for the “reclassification rule”. [para. 198] It concluded that it could not discern “sufficient reasons constituting a ‘pressing social need’ for convicting for non-observance of the notification requirement, where they were merely standing in a peaceful and non-disruptive manner at a distance of some fifty metres from each other. Indeed, no compelling consideration relating to public safety, prevention of disorder or protection of the rights of others was at stake. The only relevant consideration was the need to punish unlawful conduct. This is not a sufficient consideration in this context”. [para. 199] Furthermore, the Court reasoned that the presence of two or more people at the same place and time as a solo demonstration was not sufficient to classify it as an “assembly”. The Court also held that the fines under the law were disproportionate and were capable of having a “chilling effect” on legitimate protest and solo demonstrations.
Next, the Court considered Mr. Matsnev’s case. The Court reiterated that a favorable decision by a domestic court did not prevent him from lodging an application to the Court. The Court noted that although the domestic courts accepted that there was no need to escort Mr. Matsnev to the police station, they did not acknowledge that there had been a violation of his right to freedom of expression. The Court was also not satisfied that the award of EUR 149 constituted adequate and sufficient redress for the interference that was unlawful and disproportionate.
Finally, the Court turned to the case of Mr. Savchenko. In his case, the Russian authorities had argued that Mr. Savchenko had been taken to the police station for the use of foul language in a public place. Relying on the presumption of innocence, the Court concluded that he did not use foul language to the extent or in a way that constituted an administrative offence that might justify the termination of his demonstration and him being taken to the police station. Furthermore, the Court noted that the courts did not consider the adverse effect of the measures adopted on Mr. Savchenko’s freedom of expression. The Court could not but conclude that the measures adopted by the authorities in relation to Mr. Savchenko were unjustified.
The Court found a violation of the right to freedom of expression under Article 10 of the Convention in all five cases. Ms. Novikova, Mr. Kirpichev, and Mr. Romakhin were awarded EUR 7,500 each in non-pecuniary damages. Mr. Kirpichev was also awarded EUR 120 in pecuniary damages. Mr. Matsnev did not request damages. Mr. Savchenko was awarded EUR 6,000 in non-pecuniary damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by recognizing that solo demonstrations are protected under the right to freedom of expression, and by finding a violation of the right where there was (i) swift termination of peaceful solo demonstrations, (ii) the arrest of peaceful solo demonstrators, and (iii) the prosecution of peaceful solo demonstrators. The case also highlights many of the human rights issues that arise from the Russian law on public assemblies, and its enforcement in the context of solo demonstrations. For instance, the European Court of Human Rights noted that the law was being used in contexts that did not relate to public safety, prevention of disorder, or protection of the rights of others. It also observed that the Russian authorities should show a greater degree of tolerance towards peaceful protests (even if there had been prima facie valid reasons for deeming them unlawful due to a lack of prior notification under Russian law).
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Case significance refers to how influential the case is and how its significance changes over time.
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.
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