CASE OF BERLADIR AND OTHERS v. RUSSIA
No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) read in the light of Article 10 - (Art. 10) Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
4. The applicants were born in 1968, 1950, 1944, 1949, 1973, 1953, 1956, 1958, 1955 and 1965 respectively. They live in Moscow. 5. In November 2005 the Moscow city administration authorised a public gathering called “the Right March” by a number of nongovernmental organisations such as the Movement against Illegal Immigration and the Eurasian Youth Movement. The declared aim of the event was to commemorate the liberation of Moscow from occupation and to express the participants’ dissatisfaction with the flow of immigration into Russia. This public event included a parade from the Chistiye Prudy underground station down to Slavyanskaya Square, where a demonstration was held. The event lasted for some two and a half hours and attracted several thousand people, according to the applicants. Reportedly, a number of participants shouted “Russia for Russians, Moscow for Moscovites!” and displayed banners with slogans such as “Let’s clean the unwelcome guests out of the city!”; “Chechens, the war is over. It’s time to go home!” or “Russia belongs to us!” 6. Following the above event a “steering committee for an anti-fascist march” was formed, which included representatives of various human rights organisations. It was decided to hold a public gathering on 27 November 2005 to mark their opposition to the values proclaimed by the “Right March”. The event was planned to progress through several streets in central Moscow to Tverskaya Square (near the Moscow mayor’s office), where they would hold a demonstration. On 23 November 2005 the city administration stated that they would give permission only for the demonstration. The administration also wanted it to be held in a different place (Tverskaya Zastava Square) and for one hour instead of two. 7. The organisers did not challenge in court the conditions imposed by the mayor’s office. Instead, they preferred to withdraw their application to hold the march as planned, apparently considering that the modified conditions would work against the aims they sought to achieve by holding a public gathering. 8. Instead, the organisers opted to picket Tverskaya Square on the same date (27 November 2005 from 2 p.m. to 4 p.m.) next to the Dolgorukiy monument; they expected that up to fifty people would join the picket (пикетирование). There they intended to express their disagreement with the mayor’s office as to the location of the previously planned march and demonstration. It does not appear that this new event was meant any longer to be a direct reply to the “Right March”. 9. On 23 November 2005 thirteen persons, including one of the applicants (Mr Orlov), gave notice of the event, this time to the district authority, in order to comply with the Public Gatherings Act (see “Relevant domestic law and practice” cited in paragraph 19 below). 10. In a letter of 24 November 2005 referring to the “security of the participants” and the need to avoid causing obstruction to pedestrians and vehicles, the district authority suggested that this new event also be held in Tverskaya Zastava Square instead of Tverskaya Square from 2 p.m. to 3 p.m. It was explained that under a 1998 order the area around the Dolgorukiy monument was restricted to service vehicles of the mayor’s office. The organisers of the new event sent a letter expressing their disagreement with the authorities’ decision. On the same day, they informed the mayor’s office that they were no longer intending to hold a march and a demonstration as initially planned, in view of the mayor’s reply of 23 November 2005. 11. Prior to the date of the event, the organisers did not challenge in court the conditions imposed on the event by the district authority (see, however, the court decisions of 30 March and 3 October 2006 below). Instead, despite the position of the district authority, the organisers decided to hold a public gathering in Tverskaya Square on 27 November 2005 at 2 p.m. The special security squad proceeded to arrest some participants, allegedly without giving them time or opportunity to disperse after a verbal order to do so. 12. The applicants, with fifty other people, were taken to the Tverskoy police station and remained there until 7 p.m., while various records, including administrative offence records, were compiled. 13. On 29 and 30 November 2005 the Justice of the Peace delivered judgments finding the applicants guilty of a breach of the procedures for public gatherings (Article 20.2 of the Code of Administrative Offences). They were ordered to pay a fine of 1,000 Russian roubles (RUB) (except for the ninth applicant who had to pay RUB 500). The Justice of the Peace referred to the district authority’s letter of 24 November 2005 concluding that the public gathering was unlawful. 14. The court held as follows in respect of the first applicant: “Under the Public Gatherings Act, a picket means an expression by one person or several people of his or their opinion in public, by way of displaying posters, banners and other means of visual propaganda, albeit without movement or use of sound-amplifying technical means ... It follows from the Act that a right to hold public gatherings entails a corresponding duty of the public authorities. It should be noted that representatives of the relevant public authorities should be appointed to ensure the lawfulness of the event, public safety and public security. Thus, to enable the event participants and the public officers to fulfil their obligations and duties, there should be rules laid down for the event ... It follows from the material available that despite the orders of the police the event participants refused to stop the picket and thus committed a premeditated administrative offence ... It has not been established that the [applicant] acted as one of the event organisers. However, his actions disclosed a violation of the procedures for public gatherings because he did participate in a picket in a venue which had not been assigned for this purpose. At the same time, the court notes that he intended to take part in a public event and to express his opinion in relation to issues of general and political interest. He should also have observed the rules laid down for the event. However, failing to respect the circumstances, which were significant for the event and the police orders, he refused to stop the picket.” The court made similar findings in respect of other applicants, except for Mr Orlov. 15. The court added in respect of Mr Orlov as follows: “...’s actions disclosed a violation of the procedure for a picket because no proper notification had been made to the competent public authority in relation to the picket...” 16. The applicants appealed. By separate appeal decisions taken between 22 February and 10 April 2006 the Tverskoy District Court of Moscow upheld the decisions taken by the Justice of the Peace. 17. In separate proceedings Mr Orlov and another person sought to challenge the position taken by the district authority in its letter of 24 November 2005. In a judgment of 30 March 2006 the Taganskiy District Court of Moscow cited the relevant legislative provisionsOn 3 October 2006 the Moscow City Court endorsed the above conclusion on appeal. 18. Under Article 31 of the Russian Constitution, citizens have a right of peaceful assembly. This right can be limited by a federal statute in so far as it is necessary to protect the constitutional regime, morals, health or rights or interests of others (Article 55 § 3 of the Constitution). 19. Under sections 5 and 7 of the 2004 Public Gatherings Act in force at the relevant time, the organiser of a public event (except for an event involving one person) was to inform the competent authority of the event at least ten days in advance (at least three days in advance for a picket (пикетирование)). The organiser was required to indicate the purpose of the event, its form, the venue and the itinerary, as well as the date, timing and approximate number of participants. 20. The competent authority was to notify the organiser if it had a reasoned proposal for another venue and/or timing for the event. The organiser was required to inform the competent authority whether he or she refused or accepted the suggested new venue and/or timing. 21. The event could not take place if the event organiser and authority had not approved the alternative proposal (section 5 § 5). 22. A public event could be stopped if (i) there was a real threat to life or physical integrity of persons or property; (ii) the event participants had acted unlawfully or if the event organiser had knowingly breached the requirements of the Act as regards the conduct of the event (section 16). In such circumstances the representative of the public authority, who should be present at the event, could order the event organiser to put an end to the event. This representative should also explain the reasons for such order and should provide time for compliance with the above order. If the organiser had not complied, the public official could issue the same order to the participants. If both failed to comply, the police was to take the appropriate measures to stop the event (section 17). 23. A public event could not be held in zones close to dangerous industrial objects, the residences of the President of the Russian Federation, court buildings or prisons (section 8). 24. Under Article 20.2 § 2 of the Code a violation of the procedure concerning a public gathering is punishable by a fine. 25. By order no. 1471-RP of 30 December 1998, the Moscow city mayor introduced regulations concerning city-hall parking areas for service vehicles, including on Tverskaya Square, for some eighty vehicles (during weekdays, not Sundays or public holidays).