CASE OF NAVALNYY v. RUSSIA (Applications nos. 29580/12 and 4 others)

Key paragraph(s) can be found below the document.

98. The Court reiterates that the right to freedom of assembly is fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 91, ECHR 2015, and Taranenko v. Russia, no. 19554/05, § 65, 15 May 2014). To avert the risk of a restrictive interpretation, 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. It has specified in relevant cases that the right to freedom of assembly covered both private meetings and meetings in public places, whether static or in the form of a procession; in addition, it can be exercised by individual participants and by the persons organising the gathering (see Kudrevičius and Others, cited above, § 91, with further references, and Lashmankin and Others, cited above, § 402). It has also emphasised that Article 11 of the Convention only protects the right to “peaceful assembly”, a notion which does not cover gatherings where the organisers and participants have violent intentions. The guarantees of Article 11 therefore
apply to all gatherings except those where the organisers and participants have such intentions, incite violence or otherwise reject the foundations of a democratic society (see Kudrevičius and Others, cited above, § 92, with further references).

138. In the final episode the applicant took part in a spontaneous stationary demonstration of about 150 participants to protest against a judgment sentencing several activists to prison terms, delivered on the same day. The protestors gathered on the pavement at Tverskaya Street. There was no sound equipment, organised chanting or speeches. The applicant was arrested while he was talking to a journalist (see paragraph 37 above). From the official point of view, this demonstration was unlawful in that no advance notification had been submitted in accordance with the Public Events Act.

139. The Court reiterates that in deciding whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, it hasacknowledged that the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim, while pointing out that this margin is subject to European supervision embracing
both legislation and the decisions applying it (see Roman Zakharov v. Russia [GC], no. 47143/06, § 232, ECHR 2015).

140. The Court has previously found that the Russian notification system involved an unusually long, as compared to other States, ten-day period between the end of the notification time-limit and the planned date of the assembly; the only exception for this rule being a stationary demonstration (“picket”), which could be notified three days before the
planned date. The Court has noted that the Public Events Act made no allowance for special circumstances, where an immediate response to a current event is warranted in the form of a spontaneous assembly. It also noted that when convicting the participants in a public event held without prior notification, the domestic courts had limited their assessment to
establishing that they had taken part in a gathering which had not been notified within the statutory time-limit. They had not examined whether there were special circumstances calling for an immediate response to a current event in the form of a spontaneous assembly and justifying a derogation from the strict application of the notification time-limits. Indeed, the domestic legal provisions governing notification time-limits are formulated in rigid terms, admitting of no exceptions and leaving no room for a balancing exercise conforming with the criteria laid down in the Court’s case-law under Article 11 of the Convention (see Lashmankin and Others, cited above, §§ 451-54).

141. In the above-mentioned case of Lashmankin and Others, the Court found no reasons why it should have been “necessary in a democratic society” to establish inflexible time-limits for notification of public events and to make no exceptions to their application in order to take account of situations where it is impossible to comply with the time-limit, for example in cases of justified spontaneous assemblies or in other circumstances. It considered that the automatic and inflexible application of the notification time-limits without any regard to the specific circumstances of each case could by itself amount to an interference without justification under Article 11 § 2 of the Convention (ibid., §§ 456 and 473).

142. The authorities’ interference with the spontaneous demonstration at hand was also an example of such an automatic and inflexible application of formal requirements which were found to be incompatible with the essence of the right to freedom of peaceful assembly in the aforementioned Lashmankin and Others judgment. Again, as in the case now under consideration, 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

174. At the core of the applicant’s Article 18 complaint is his alleged persecution, not as a private individual, but as an opposition politician committed to playing an important public function through democratic discourse. As such, the restriction in question would have affected not merely the applicant alone, or his fellow opposition activists and supporters, but the very essence of democracy as a means of organising society, in which individual freedom may only be limited in the general interest, that is, in the name of a “higher freedom” referred to in the travaux préparatoires (see paragraph 51 above). The Court considers that the ulterior purpose thus defined would attain significant gravity. 175. ‘…to suppress that political pluralism which forms part of “effective political democracy” governed by “the rule of law”, both being concepts to which the Preamble to the Convention refers…’ (excerpt)