NAVALNYY A OSTATNÍ proti Rusku

THIRD SECTION

CASE OF NAVALNYY AND OTHERS v. RUSSIA

(Applications nos. 25809/17 and 14 others – see appended list)

JUDGMENT

STRASBOURG

4 October 2022

This judgment is final but it may be subject to editorial revision.

In the case of Navalnyy and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

María Elósegui, President,

Andreas Zünd,

Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the Appendix (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints under Articles 5, 6, 10, 11, 18 and Article 2 of Protocol no. 7 to the Convention to the Russian Government (“the Government”) represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the applications;

the decision to give priority (Rule 41 of the Rules of Court) to the application no. 25809/17;

the parties’ observations in application no. 25809/17 and in other cases where these were submitted;

Having deliberated in private on 13 September 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1. In the beginning of March 2017 Mr Aleksey Navalnyy, a political activist and popular blogger, released a film on YouTube alleging that a high‑ranking State official had used charities and shell companies to amass a collection of luxuries. The video has been watched nearly twelve million times by the end of March. Following Mr Navalnyy’s call, on Sunday 26 March 2017 thousands of people took the streets in more than eighty Russian cities protesting against corruption, lawlessness and inequality. Hundreds of protesters were arrested at peaceful rallies and later convicted of administrative offences for breach of rules on public events.

1. Application no. 25809/17

2. On 14 March 2017 Mr Navalnyy notified the Moscow Government about his intention to hold a march and a gathering in the centre of Moscow on 26 March 2017 to call for investigation of corruption by state officials. On 16 March the Regional Security and Anti-Corruption Department of Moscow (“the Department”) informed Mr Navalnyy that the march was likely to disrupt traffic and breach the rights of others. On 22 March the Department suggested to Mr Navalnyy that he hold his public events either in Sokolniki park or in Lublino district, both located quite far from the centre of Moscow. Mr Navalnyy refused to accept these proposals; on his YouTube channel he called on people to join the march on 26 March 2017 in Tverskaya street by exiting any of the five metro stations located along that street and walking at any direction. He also promised to those who would be arrested at the march to assist in preparing an application to the Court. The Department, being aware of the call, asked the police to deploy additional forces to secure safety and public order in the city centre.

3. On 26 March 2017 Mr Navalnyy arrived in Tverskaya street to take part in the march. He was walking down the street with other participants when at 2.28 p.m. he was apprehended by the police and placed in a police bus. At 3.31 p.m. Mr Navalnyy was administratively arrested at the Konkovo police station of Moscow; he stayed there until 8.45 a.m. of the next day when he was taken to the court.

4. On 27 March 2017 the Tverskoy District Court of Moscow found Mr Navalnyy guilty of organising and holding an unauthorised public event with about 4,000 participants, which caused disruption of movement of pedestrians and traffic (an offence punishable under Article 20.2 § 1 of the Code of Administrative Offence (“CAO”)). He was sentenced to a fine of 20,000 Russian roubles (RUB). Having announced the judgment in this case, the court informed Mr Navalnyy that he was also accused of failure to obey a lawful order of a police officer during his arrest and that this case would be examined right away. Mr Navalnyy’s requests to adjourn the hearing and provide him with adequate time to prepare for the trial, to question the eyewitnesses of his arrest and two police officers who had drawn up the reports depicting the events of 26 March 2017 were dismissed. Mr Navalnyy was found guilty of breach of Article 19.3 § 1 of CAO and sentenced to 15 days’ administrative detention.

5. On 30 March 2017 the Moscow City Court dismissed Mr Navalnyy’s appeal. It refused to question the eyewitnesses of his arrest and disallowed his questions to the police officers during their examination.

2. OTHER Applications

6. The applicants were administratively prosecuted and sentenced to administrative detention or fined for participation in the unauthorised march in Moscow on 26 March 2017. The relevant facts and complaints are set out in the Appendix.

THE COURT’S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

8. In application no. 25809/17 Mr Navalnyy complained that the authorities had unlawfully and arbitrarily interfered with his rights to freedom of expression and peaceful assembly. The Court will examine this complaint under Article 11, interpreted where appropriate in the light of Article 10 (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 363-65, 7 February 2017). The general principles regarding freedom of assembly have been summarized in Kudrevičius and Others v. Lithuania ([GC], no. 37553/05, §§ 142-57, ECHR 2015, with further references).

9. The Government submitted that Mr Navalnyy’s call for participation in the unauthorised protest and assurance of providing legal aid in the proceedings before the Court to those arrested at the event amounted to an abuse of the right of individual application. Their objection cannot be accepted as nothing in the case-file reveals that Mr Navalnyy’s conduct was manifestly contrary to the purpose of the right of petition (see Khadzhialiyev and Others v. Russia, no. 3013/04, § 67, 6 November 2008) or impeded the proper functioning of the Court (see Zhdanov and Others v. Russia, nos. 12200/08 and 2 others, § 81, 16 July 2019, and Zambrano v. France (dec.), no. 41994/21, §§ 33-38, 7 October 2021).

10. The Government further argued that by omitting to challenge the authorities’ refusal to approve the location of the march and gathering before the domestic courts Mr Navalnyy had failed to exhaust domestic remedies. This argument cannot be accepted because the judicial review of such a refusal did not constitute an effective remedy at the time (see Lashmankin and Others, cited above, §§ 342‑61, and Kablis v. Russia, nos. 48310/16 and 59663/17, § 71, 30 April 2019).

11. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

12. It has not been disputed by the parties that Mr Navalnyy’s arrest during the march and ensuing conviction for administrative offences constituted an interference with his right to freedom of peaceful assembly. That interference was based on the relevant provisions of the domestic law (see Lashmankin and Others, cited above, §§ 216-312) and pursued the legitimate aims of prevention of disorder and protection of the rights and freedoms of others. It remains to be assessed whether the interference was “necessary in a democratic society”.

13. The Court notes that the protest organised by Mr Navalnyy concerned a matter of public interest, notably fight against corruption. The authorities refused to approve the location of the march in Moscow referring to the risks of disrupting traffic and breaching rights of others. The Court recalls in that regard that any demonstration in a public place may cause a certain level of disruption to ordinary life, including disruption of traffic; this fact in itself does not justify an interference with the right to freedom of assembly (see Kudrevičius and Others, cited above, § 155). In that regard the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities (ibid., § 151). The Court observes that Mr Navalnyy was arrested while walking peacefully with other participants in the march. Nothing suggests that he had shown any violent intentions or had called on the participants to engage in the acts of aggression (see, a contrario, Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia, nos. 75734/12 and 2 others, § 284, 19 November 2019). The domestic courts, in their turn, did not attempt to examine what the reasons were for arresting Mr Navalnyy in Tverskaya street. The courts justified his arrest and conviction by the mere reference to the “unlawfulness” of the march, without assessing whether it had been possible to ensure that the march proceed peacefully while minimising the disruption of movement of passers-by, road users and public service workers (see, mutatis mutandis, Gafgaz Mammadov v. Azerbaijan, no. 60259/11, § 60, 15 October 2015). Furthermore, it was not demonstrated that the disruption caused by the march in Tverskaya street went beyond of what was inevitable in the circumstances or that the march represented a danger to public order (see, mutatis mutandis, Oya Ataman v. Turkey, no. 74552/01, § 39, ECHR 2006‑XIV). The Court reiterates that the authorities should show a certain degree of tolerance towards peaceful gatherings where demonstrators do not engage in acts of violence (ibid., § 42); such tolerance has not been shown in the present case.

14. Having regard to the above considerations, the Court concludes that Mr Navalnyy’s arrest at the march and subsequent conviction for holding an unauthorised protest had not been necessary in a democratic society in order to achieve the aims pursued (see, mutatis mutandis, Körtvélyessy v. Hungary, no. 7871/10, § 31, 5 April 2016).

15. There has accordingly been a violation of Article 11 of the Convention.

3. OTHER ALLEGED VIOLATIONS OF THE CONVENTION UNDER THE WELL-ESTABLISHED CASE-LAW

16. Mr Navalnyy also raised complaints under Articles 5 and 6 of the Convention which are covered by the well-established case-law of the Court (see the Appendix). The applicants listed in the Appendix also submitted complaints which raise issues under Articles 5, 6, 11 of the Convention and Article 2 of Protocol No. 7 to the Convention, given the relevant well‑established case-law of the Court. All these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible.

17. Having examined all the material before it, the Court concludes that they disclose violations of Article 5 § 1, Article 6 § 1, Article 6 § 3 (d), Article 11 of the Convention and Article 2 of Protocol No. 7 to the Convention in the light of its findings in Navalnyy and Yashin v. Russia (no. 76204/11, §§ 53-75, 4 December 2014); Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-31, ECHR 2015); Karelin v. Russia (no. 926/08, §§ 38‑85, 20 September 2016); Tsvetkova and Others v. Russia (nos. 54381/08 and 5 others, §§ 179-91, 10 April 2018); Navalnyy v. Russia ([GC], nos. 29580/12 and 4 others, §§ 71-72 and 83-84, 15 November 2018); and Korneyeva v. Russia (no. 72051/17, § 35, 8 October 2019), as indicated in the Appendix.

4. OTHER COMPLAINTS

18. In application no. 25809/17, Mr Navalnyy complained under Article 18 in conjunction with Article 5 of the Convention that his arrest, detention and the administrative charges against him had been applied for political ends. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. The Court has already found violations of Articles 5 and 11 in respect of the above complaints (see paragraphs 14 and 17 above). Having regard to those findings, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 18 in conjunction with Article 5 of the Convention (see Frumkin v. Russia, no. 74568/12, §§ 172-73, 5 January 2016).

19. Mr Navalnyy also complained under Articles 5 and 6 of the Convention about various procedural shortcomings in the administrative offence proceedings. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in that application. It thus considers that Mr Navalnyy’s remaining complaints are admissible but that there is no need to give a separate ruling on them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20. Mr Navalnyy claimed 50,000 euros (EUR) in respect of non‑pecuniary damage and 450,000 Russian roubles for the legal services of his representative in the domestic proceedings and in the proceedings before the Court. He did not submit any documents in support of his claims for costs and expenses. Other applicants were not required to make any claims for just satisfaction as their applications fall under the well-established case-law of the Court.

21. The Government contested Mr Navalnyy’s claims as excessive.

22. The Court considers it reasonable to award the applicants the sums indicated in the Appendix and dismisses the remainder of Mr Navalnyy’s claim for non-pecuniary damage. The Court further dismisses his claim for costs and expenses because it has not been substantiated that Mr Navalnyy paid them or was under a legally enforceable obligation to pay them (compare Mazepa and Others v. Russia, no. 15086/07, §§ 89‑90, 17 July 2018; Radzevil v. Ukraine, no. 36600/09, §§ 94‑96, 10 December 2019; Udaltsov v. Russia, no. 76695/11, § 201, 6 October 2020; and Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 61, 8 October 2020).

23. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 11 of the Convention in respect of Mr Navalnyy in application no. 25809/17;
4. Holds that there has been a violation of Article 5 § 1, Article 6 § 1, Article 6 § 3 (d), Article 11 of the Convention and Article 2 of Protocol No. 7 to the Convention as regards the other complaints raised under the well-established case-law of the Court (see the appended table);
5. Holds that there is no need to examine the remaining complaints under Articles 5 and 6 and Article 18 in conjunction with Article 5 of the Convention in application no. 25809/17;
6. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the Mr Navalnyy’s claim for just satisfaction in application no. 25809/17.

Done in English, and notified in writing on 4 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova María Elósegui
Deputy Registrar President

APPENDIX

[1] Plus any tax that may be chargeable to the applicants.