MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1318/H46-21

7 June 2018

1318th meeting, 5-7 June 2018 (DH) Human rights   H46-21 Lashmankin and Others group v. Russian Federation (Application No. 57818/09) Supervision of the execution of the European Court’s judgments Reference document DH-DD(2018)420

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
57818/09+	LASHMANKIN AND OTHERS	07/02/2017	29/05/2017	Complex problem
31475/10	ANNENKOV AND OTHERS	25/07/2017	25/10/2017

Case description

This group of cases mainly concerns different violations of the right to freedom of assembly in different Russian cities in 2009-2013 (violations of Article 11, interpreted in the light of Article 10), lack of an effective remedy in this respect (violations of Article 13 in conjunction with Article 11), deprivation of liberty of the participants in violation of domestic law (violation of Article 5§1), as well as excessive use of force to disperse such events and failure to duly investigate it (violation of Article 3).

Violations of Article 11 were found on account of:

- the lack of effective legal safeguards against arbitrary and discriminatory exercise of the wide discretion left to the executive whether to refuse or to grant requests to hold public events – accordingly, the legal provisions governing the power to propose a change of location, time or manner of conduct of public events did not meet the Convention’s “quality of law” requirements (§ 430);^[1]

- a general statutory ban on holding public events at certain locations (§ 442);

- disproportionate measures employed by the authorities towards non-approved assemblies, even if peaceful, involving few participants and causing only minimal or no disruption of ordinary life, thus displaying zero tolerance towards such events, including unjustified forced dispersals, unjustified arrests and conviction of participants of administrative offences (§§ 461-463 and 515);

- arbitrary, discriminatory and disproportionately strict security measures employed by the authorities undermining free expression during the public events (§ 469-470);

- automatic and inflexible application, at the material time,  of the short time-limits for notification of public events, not allowing organisers to comply with them if there are long public holidays (§ 450) or if the event is of a spontaneous nature (§ 456);

- late notification of the organisers about refusals to hold public events, precluding possible challenges before the planned date of the event (§ 458).

In addition, violations of Article 13 (in conjunction with Article 11) were found on account of the absence of an effective remedy to challenge refusals to approve the location, time and manner of conduct of a planned public event (§ 360) first, because at the material time there was no guarantee that complaints against such refusals would be considered by the courts before the planned public event; second, because in the framework of such consideration, existing law and practice did not ensure an examination of the issue of proportionality.

Status of execution

In response to the Court’s judgment, on 16 April 2018 the authorities provided an action plan
(DH-DD(2018)420), which can be summarised (as regards the information relevant to the Lashmankin group[2]) as follows.

As regards individual measures

The sums of compensation awarded by the Court were paid to all the applicants who submitted their bank account details. Payment of the compensation to the six remaining applicants will be completed upon submission of their bank account details.

Following a request of Mr Lashmankin, his case was reopened and on 6 February 2018 a court found the authorities’ refusal to agree on the time and place of holding the public event under consideration (planned for January 2009) to be unlawful.

The other applicants did not apply for reopening following the adoption of the judgment of the European Court.

As regards general measures

The authorities are currently reflecting, within the framework of the implementation of the Presidential Decree “On monitoring of law enforcement in the Russian Federation” on the necessity to amend Russian legislation and adapt law enforcement practice in the light of the Court’s findings. This work is planned to be finalised by the end of 2018.

The Supreme Court has issued an overview of the practice of international bodies, including of the European Court of Human Rights, concerning freedom of assembly. This overview has been disseminated among the courts. Moreover, a ruling by the Plenum of the Supreme Court is currently being prepared which will include guidelines for the courts clarifying a number of issues in accordance with the case-law of the European Court. The adoption of these guidelines is planned for the first half of 2018.

The issue of freedom of expression, closely linked to that of freedom of assembly, was discussed at a high-level conference “Russia and the European Court of Human Rights: Enhancing the Dialogue”, which took place in Moscow in October 2017.

The judgment in the case of Lashmankin and Others has been translated and disseminated among the relevant authorities.

Analysis by the Secretariat

As regards the individual measures, in view of the reimbursement ordered by the Court of the fine unjustly imposed on one of the applicants in the Lashmankin case, Mr Tarasov, the main outstanding issue relates to the applicants in the second case in this group (Annenkov and Others), where information is awaited on how the authorities have addressed the Court’s findings that the investigation into the applicants’ ill-treatment was not effective. In addition, it would be useful to obtain clarification as to the legal effects of the domestic court’s findings of 6 February 2018 in the reopened proceedings that the refusal of the event planned by Mr Lashmankin for January 2009 was unlawful.

As regards the general measures, the Court made an in-depth examination of existing law and practice, highlighting notably the shortcomings in the Public Events Act (as regards, in particular, the local authorities’ broad and uncircumscribed discretion to change the time, place and manner of conduct of public events, and statutory bans on assemblies in the vicinity of certain institutions), as combined with the Administrative Offences Act (in particular as regards arrest and escorting to police stations), and with the  2015 Code of Administrative Procedure (as regards the absence of any proportionality examination in the context of judicial review of the lawfulness of refusals of events).

The judgment noted, in parallel, a number of developments in domestic judicial practice, notably the requirement imposed by the Constitutional Court in April 2009 that the authorities have to give weighty reasons for changes in the time, place or manner of conduct of public events and ensure that alternative locations be such that the intended messages can still be effectively conveyed (§ 357).

Furthermore, the April 2009 decisions of the Constitutional Court (supplemented by one in February 2013) (§ 351) led to the adoption of new legislation imposing the obligation to conclude the examination of appeals against decisions concerning the time, place, or manner of conduct of public events before such events, a development welcomed by the Court. Also, two decisions of the Constitutional Court, adopted in June 2009 and January 2012, stressed that arrests must be necessary in the circumstances of the situation (§ 461). It has not been demonstrated, however, that these developments constituted a real curb on the wide powers afforded to the executive (§ 420) or were effectively complied with (§§ 358, 426 and 461).

The judgment also noted the Constitutional Court’s decision in May 2014 declaring the strict notification deadlines to be incompatible with the Constitution in so far as they prevented a public event from being held where the entire time limit for notification fell on a public holiday (rendering public events other than pickets impossible during a number of days after the New Year and Christmas holidays). As regards the Supreme Court, the judgment welcomed the instructions given in its Ruling No. 21 in 2013 that any restrictions on human rights and freedoms must be prescribed by federal law, pursue a legitimate aim and be necessary in a democratic society, that is to say, proportionate to the legitimate aim. The Court noted, however, that it had been issued after the events in the present cases and that it was necessary to assess how these instructions are applied in practice (§ 359).

In view of the outstanding shortcomings identified as regards the present legal framework surrounding the exercise of freedom of assembly and the scope of judicial review,[3] it is noted with interest that the action plan indicates that the authorities are reflecting on the necessity of adopting legislative reforms. This reflection should cover all different shortcomings revealed by the Court’s judgment.

In this connection, it is recalled that an obligation to finalise judicial review proceedings before events planned has already been introduced through the 2015 Code of Administrative Procedure following two decisions by the Constitutional Court in 2009 and 2013 (see notably the Deputies’ decision at 1273^rd meeting (HR), December 2016 in the Alekseyev case). Information on how this new requirement is being applied in practice would be useful.

It is also recalled that the Secretary General recently indicated, in response to reports of violence and mass detentions during opposition demonstrations in Russia in some places where the organisers and authorities were unable to agree on the locations of demonstrations (6 May 2018), the Council of Europe’s readiness to assist the Russian Federation to improve its legislation in the field of freedom of assembly.

The Committee may, in parallel to this legislative work, wish to call on the Russian authorities to rapidly take further measures to ensure that the practice of municipal authorities, domestic courts and the police fully complies with Convention principles (notably through improved regulations, awareness raising and the development of training). Such measures appear of particular importance in view of recent reports of incidents, including dispersals and arrests in the Russian Federation.

The information on international standards already provided by the Supreme Court is interesting from this perspective, as is, more importantly, its ongoing efforts to provide, in the near future, guidelines to the courts on respect for freedom of assembly, taking into account the requirements of the Convention. In this connection, the wide dissemination of the guidelines established by the Venice Commission and the OSCE (CDL-AD(2014)046 – available also in Russian) may also be considered.[4]

Financing assured: YES