For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others. (Nelson Mandela)
On 15 November 2018, the Grand Chamber of the European Court of Human Rights ruled that Russia violated the European Convention of Human Rights by abusively sanctioning Aleksey Navalnyy for his participation in peaceful gatherings (case of Navalnyy v. Russia, application no. 29580/12).
Aleksey Navalnyy is a political activist, Russian opposition leader, anti-corruption campaigner and blogger. He was arrested on numerous occasions during public gatherings against the Government and, subsequently, was also convicted by the Russian courts. Mr. Navalnyy filed a complaint before the European Court of Human Rights, stating that his rights under the Convention had been thus violated.
About the freedom of assembly
The right to participate in public gatherings and assemblies is said to be the very essence of the right to freedom of expression, which is part of the rule of law.
In defining the freedom of assembly, the rich case law of the ECHR held, on the one hand, that this right implies the possibility of an individual to physically participate in assemblies[1], but also his/her prerogative to participate in demonstrations without the risk of incurring sanctions, a disproportionate sanctioning of an individual on the ground that he/she took part in unlawful assemblies being considered to represent a violation of the right guaranteed by art. 11 of the ECHR[2].
At the same time, the Court held in its case law that the peaceful nature of a demonstration is essential in order to benefit from the protection of art. 11, but the conviction of an individual for the mere presence at such a demonstration, without the court analysing whether it was peaceful or violent, constitutes a violation of democratic principles in the absence of incitement to violence[3]. Moreover, an individual does not cease to enjoy the right to freedom of peaceful assembly as a result acts of sporadic violence or other offences committed by other persons during a demonstration, if the individual in question remains peaceful in his/her intentions and behaviour[4]. The burden of proving the violent intentions of the organizers of a demonstration lies with the authorities[5].
Last but not least, as regards the authorisation of a demonstration, the ECHR has established[6] that the existence of prior authorisations does not contravene art. 11, but the prohibition of such protests must be justified by evidence supporting the existence of serious dangers. Invoking the mere fact that there is a risk of incidents with other persons does not comply with the ECHR requirements.
What were the arguments invoked?
Mr. Aleksey Navalnyy complained that the seven arrests and two instances of pre-trial detention cumulating a total of 172 days of deprivation of liberty were unlawful, as the authorities had arrested him while he was participating in peaceful gatherings. At the same time, he criticized the fact that the authorities’ actions were based on political reasons, and not on the violation of any legal obligations.
The Grand Chamber held unanimously that there had been a violation of:
- art. 6 para. 1 regarding the right to a fair trial;
- art. 5 para. 1 regarding the right to liberty and security/lawfulness of arrest or detention;
- art. 11 regarding the freedom of assembly and association;
- art. 18 regarding the limitation on use of restrictions on rights.
What has the Court from Strasbourg held?
The European court found that Art. 5 and Art. 6 of the Convention were violated, since there had been no reason why the administrative offence reports could not be drawn up on the spot, instead of bringing the applicant to the police station where he was detained for several hours, without the Government providing any justification in this respect.
As regards art. 11 of the Convention, the Court held that the right of assembly was a fundamental right and that, while Governments could have procedures for the authorisation of assemblies, the enforcement of such rules could not lead to the elimination of the right of assembly in its substance. In this respect, for an interference with the right of assembly to be justified, it must have a legitimate aim, such as the prevention of crime or protecting the rights of others (which must be proven in each case).
Thus, the measures taken were not necessary in a democratic state, given that measures of a criminal nature should not, in principle, be applied to people taking part in peaceful assemblies, as these are measures with significant consequences on the freedom of the individual and should be applied only as a last resort.
Given that Russia does not have a legislation to protect participants in demonstrations, protests and gatherings against arbitrary interference, the Court called on Russia to implement the necessary framework and mechanisms for the authorities to protect the fundamental right of participation in peaceful demonstrations and, moreover, show tolerance for unauthorised, peaceful gatherings.
Consequently, Russia was condemned to pay Aleksey Navalnyy EUR 50,000 as non-pecuniary damage, EUR 1,025 as pecuniary damage and EUR 12,653 representing costs and expenses.
