MARKUNAS AND OTHERS v. RUSSIA - 41903/22 (Article 11 - Freedom of assembly and association : Second Section Committee) [2024] ECHR 526 (13 June 2024)

JUDGMENT STRASBOURG 13 June 2024 This judgment is final but it may be subject to editorial revision. In the case of Markunas and Others v. Russia, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Lorraine Schembri Orland , President , Frédéric Krenc, Davor Derenčinović , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 23 May 2023, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on the various dates indicated in the appended table. 2. The Russian Government ("the Government") were given notice of the applications. THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the disproportionate measures taken against them as organisers or participants of public assemblies. They also raised other complaints under the provisions of the Convention. THE LAW JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. JURISDICTION 6. The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ - 73, 17 January 2023). ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 7. The applicants complained principally of disproportionate measures taken against them as organisers or participants of public assemblies, namely their arrest in relation to the dispersal of these assemblies and their conviction for administrative offences. They relied, expressly or in substance, on Article 11 of the Convention. 8. The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05 , ECHR 2015, with further references) and proportionality of interference with it (see Oya Ataman v. Turkey , no. 74552/01 , ECHR 2006 - XIV, and Hyde Park and Others v. Moldova , no. 33482/06 , 31 March 2009). 9. In the leading cases of Frumkin v. Russia, no. 74568/12 , ECHR 2016 (extracts), Navalnyy and Yashin v. Russia, no. 76204/11 , 4 December 2014 and Kasparov and Others v. Russia, no. 21613/07 , 3 October 2013, the Court already found a violation in respect of issues similar to those in the present case. 10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the interferences with the applicants' freedom of assembly were not "necessary in a democratic society". 11. These complaints are therefore admissible and disclose a breach of Article 11 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12. Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). 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. 13. Having examined all the material before it, the Court concludes that these complaints also disclose violations of the Convention and its Protocol in the light of its findings in Karelin v. Russia , no. 926/08 , §§ 58-85, 20 September 2016, concerning the absence of a prosecuting party in the proceedings under the Code of Administrative Offences (the CAO); and Butkevich v. Russia , no. 5865/07 , §§ 63-65, 13 February 2018, Tsvetkova and Others v. Russia , nos. 54381/08 and 5 others, §§ 115-31, 10 April 2018, and Korneyeva v. Russia , no. 72051/17 , §§ 34-36, 8 October 2019, as to various aspects of unlawful deprivation of liberty of organisers or participants of public assemblies. REMAINING COMPLAINTS 14. The applicants raised further additional complaints under Article 6 of the Convention concerning the fairness of the administrative-offence proceedings. In view of the findings above, the Court considers that there is no need to deal separately with these remaining complaints. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15. Regard being had to the documents in its possession and to its case - law (see in particular Navalnyy and Others v. Russia [Committee], nos. 25809/17 and 14 others, § 22, 4 October 2022), the Court finds it reasonable to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Holds that it has jurisdiction to deal with these applications as they relate to facts that took place before 16 September 2022; Declares the complaints under Article 11 of the Convention and the other complaints under the well-established case-law of the Court, as set out in the appended table, admissible, and finds that there is no need to examine separately the remaining complaints under Article 6 of the Convention; Holds that these applications disclose a breach of Article 11 of the Convention; Holds that there has been a violation of the Convention as regards the other complaints raised under the well-established case-law of the Court (see appended table); Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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. Done in English, and notified in writing on 13 June 2024, pursuant to Rule §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Lorraine Schembri Orland Acting Deputy Registrar President APPENDIX List of applications raising complaints under Article 11 of the Convention (disproportionate measures against organisers and participants of public assemblies) No. Application no. Date of introduction Applicant's name Year of birth Representative's name and location Name of the public event Location Date Administrative / criminal offence Penalty Final domestic decision Court Name Date Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1] 41903/22 05/08/2022 Andrey Aleksandrovich MARKUNAS Ivanov Nikifor Yuryevich St Petersburg Anti-war protest St Petersburg 02/03/2022 article 20.2 § 6.1 of CAO detention for 10 days St Petersburg City Court 07/04/2022 Art. 5 (1) - unlawful detention - arrest and detention from 7.40 p.m. on 02/03/2022 p.m. to 03/03/2022, until court hearing, in excess of 3 hours for the sole purpose of drawing up a record of administrative offence, raised on appeal, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision: St Petersburg City Court, 07/04/2022 5,000 46757/22 14/09/2022 Andrey Viktorovich KONONOV Gerasimova Yekaterina Viktorovna St Petersburg Anti-war protest St Petersburg 27/02/2022 article 20.2 § 6.1 of CAO fine of RUB 10,000 St Petersburg City Court 31/05/2022 Art. 5 (1) - unlawful detention - arrest and detention from 9.30 p.m. on 27/02/2022 to 3.29 a.m. on 28/02/2022 in excess of 3 hours for the sole purpose of drawing up a record of administrative offence, raised on appeal, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision: St Petersburg City Court, 31/05/2022 4,000 46758/22 14/09/2022 Nikolay Andreyevich MOZGOVYKH Gerasimova Yekaterina Viktorovna St Petersburg Anti-war protest St Petersburg 27/02/2022 article 20.2 § 6.1 of CAO fine of RUB 10,000 St Petersburg City Court 31/05/2022 Art. 5 (1) - unlawful detention - arrest and detention from 9.30 p.m. on 27/02/2022 p.m. to 5.43 a.m. on 28/02/2022 in excess of 3 hours for the sole purpose of drawing up a record of administrative offence, raised on appeal, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision: St Petersburg City Court, 31/05/2022 4,000 46759/22 14/09/2022 Zlata Petrovna YEGOROVA Gerasimova Yekaterina Viktorovna St Petersburg Anti-war protest St Petersburg 27/02/2022 article 20.2 § 6.1 of CAO fine of RUB 10,000 St Petersburg City Court 31/05/2022 Art. 5 (1) - unlawful detention - arrest and detention from 9.30 p.m. on 27/02/2022 to 8.40 a.m. on 28/02/2022 in excess of 3 hours for the sole purpose of drawing up a record of administrative offence, raised on appeal, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision: St Petersburg City Court, 31/05/2022 4,000 46957/22 16/09/2022 Yelizaveta Sergeyevna USTINOVA Tregubova Yuliya Mikhaylovna Balashikha Anti-war protest Moscow 25/02/2022 article 20.2 § 5 of CAO fine of RUB 12,000 Moscow City Court 03/08/2022 Art. 5 (1) - unlawful detention - arrest and detention from 8.50 p.m. on 25/02/2022 to 3.30 a.m. on 26/02/2022 in excess of 3 hours for the sole purpose of drawing up a record of administrative offence, raised on appeal, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision: Moscow City Court, 03/08/2022 4,000 46960/22 16/09/2022 Varvara Dmitriyevna MAKAROVA Tregubova Yuliya Mikhaylovna Balashikha Anti-war protest Moscow 25/02/2022 article 20.2 § 5 of CAO fine of RUB 12,000 Moscow City Court 21/06/2022 Art. 5 (1) - unlawful detention - arrest and detention from 10 p.m. on 25/02/2022 to 6.50 a.m. on 26/02/2022 in excess of 3 hours for the sole purpose of drawing up a record of administrative offence, raised on appeal, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision: Moscow City Court, 21/06/2022 4,000 46963/22 16/09/2022 Nika Maksimovna BOBINA Tregubova Yuliya Mikhaylovna Balashikha Anti-war protest Moscow 25/02/2022 article 20.2 § 5 of CAO fine of RUB 20,000 Moscow City Court 15/07/2022 Art. 5 (1) - unlawful detention - arrest and detention from 10 p.m. on 25/02/2022 p.m. to 5.30 a.m. on 26/02/2022 in excess of 3 hours for the sole purpose of drawing up a record of administrative offence, raised on appeal, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision: Moscow City Court, 15/07/2022 4,000 46966/22 16/09/2022 Polina Ivanovna ANTIPOVA Tregubova Yuliya Mikhaylovna Balashikha Anti-war protest Moscow 25/02/2022 article 20.2 § 5 of CAO fine of RUB 20,000 Moscow City Court 23/06/2022 Art. 5 (1) - unlawful detention - arrest and detention on from 8.50 p.m. on 25/02/2022 to 3.05 a.m. on 26/02/2022 in excess of 3 hours for the sole purpose of drawing up a record of administrative offence, raised on appeal, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision: Moscow City Court, 23/06/2022 4,000 46967/22 16/09/2022 Mikhail Aleksandrovich ROSSIUS Tregubova Yuliya Mikhaylovna Balashikha Anti-war protest Moscow 26/02/2022 article 20.2 § 5 of CAO fine of RUB 20,000 Moscow City Court 25/07/2022 Art. 5 (1) - unlawful detention - arrest and detention from 5.33 p.m. on 26/02/2022 to 12 a.m. on 27/02/2022 in excess of 3 hours for the sole purpose of drawing up a record of administrative offence, raised on appeal, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision: Moscow City Court, 25/07/2022 4,000 47138/22 15/09/2022 Olga Alekseyevna LYUBOVTSEVA Kulikov Sergey Sergeyevich Nizhniy Novgorod Anti-war protest Nizhniy Novgorod 06/03/2022 article 20.2 § 5 of CAO fine of RUB 10,000 Nizhniy Novgorod Regional Court 18/05/2022 Art. 5 (1) - unlawful detention - arrest and detention from 4 p.m. on 06/03/2022 p.m. to 2.30 p.m. on 07/03/2022, until court hearing, in excess of 3 hours for the sole purpose of drawing up a record of administrative offence, raised on appeal, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision: Nizhniy Novgorod Regional Court, 18/05/2022 4,000 [1] Plus any tax that may be chargeable to the applicants. 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