European Court Delivers a Controversial Decision on the Power to Ban Picketing

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Jul 16, 2012, 6:25:01 AM7/16/12
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European Court Delivers a Controversial Decision on the Power to Ban Picketing

Two judges, including the Russian judge, expressed their dissenting opinions as to the merits of the case

10 July 2012, the European Court of Human Rights (ECtHR) issued the decision of Berladir and others v. Russia (application no.34202/06).

The ECtHR held that there was no violation of Article 11 (freedom of assembly and association), taken in conjunction with Article 10 (freedom of expression and to hold opinions) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The applicants were Vasily Berladir, Aleksandr Guryanov, Viktoria Ignatyeva, Yuri Lyakhov, Pavel Marchenko, Oleg Orlov, Andrei Rachinsky, Yan Rachinsky, Elena Ryabinina and Sergei Trifonov. The applicants were represented by lawyers of Memorial Human Rights Center (Moscow) and the European Human Rights Advocacy Centre (EHRAC, London). Lawyer Irina Vladimirovna Khrunova (Inter-regional Human Rights Defenders' Association “Agora”) represented the applicants on the domestic level.

On 4 November 2005 the first so-called “Russian March”, authorized by the authorities, took place in Moscow. A large number of members of radical nationalist organizations walked along Moscow's boulevard circle to Staraya Square (Old Square), where the rally took place. Many of the participants raised their arms in the Nazi salute during the demonstration, and this continued throughout the rally. The main slogan was “Russia – for Russians, Moscow – for Muscovites.” The participants demanded that migrants be chased out of Russia, and other groups shouted out words which offended the feelings and dignity of ethnically non-Russian citizens and residents of Russia.

The event filled many residents of Moscow with indignation, and representatives of a range of civil and political organizations considered it necessary to hold an event in the same month against the rise of the threat of fascism in our country. They planned to hold the event in response on 27 November – a demonstration along Tverskaya-Yamskaya and Tverskaya Streets, and also a rally on Tverskaya Square opposite the Moscow Mayor's office. Timely notification of these activities was given.

On 23 November the organizers received an answer from S.A. Vasyukov, deputy prefect of the Central Administrative Okrug (CAO) of Moscow, with a proposal to change the place, time and character of the event – it was proposed that the rally be held on Tverskaya zastava Square without the demonstration.

The organizers considered this proposition unacceptable, unfounded, and therefore in violation of the Federal law “On assembly, protests, rallies, demonstrations, and picketing”. On the same day they gave new notification to the CAO prefecture of Moscow – this time of a protest picket to be held on 27 November on Tverskaya Square, opposite the Mayor's office.

On 24 November the same deputy of the prefect S.A. Vasyukov sent a letter in which he insisted that site of the picket be changed from that given in the statement of notification, again at Tverskaya zastava Square. He founded his counter-proposal on the basis that at the desired protest place there was a parking for employees of the Mayor's office, with reference to the directive of the Mayor. The actions of the representative of the prefecture clearly contravened the norms of the law, as the “basis” of the CAO prefecture's proposal contained invalid information: the employee parking, in accordance with the directive of the mayor to which S.A. Vasyukov referred in his letter, was only operative on working days, and the time of proposed picket was on a Sunday.

It was of principal importance to announce their protest precisely opposite the Mayor's office: the city authorities had allowed a radical nationalist demonstration along the streets of Moscow, but had in effect banned an anti-fascist demonstration.

Despite the fact that the rally site had not been agreed upon, on 27 November 100 to 200 people exercised their constitutional right to assembly, protest and demonstration and participated in the picket opposite the Mayor's office, beside the monument to Yury Dolgorukiy. The slogans used were “Fascism won't pass!”, “We're protesting against the ban of an anti-fascist demonstration”, “The Mayor's office indulging in fascism?”, “Moscow without fascists”,

“Glory to Russia, that defeated fascism!”. Participants in the meeting unfurled their placards, but were not able to hold them up for more than a few minutes. Almost straight after the protesters unfurled their placards, riot police officers (OMON) arrested participants, tore up and stamped on the placards, and roughly dragged the picketers into police vans. A few dozen people were taken to the OVD “Tverskoye” and “Khamovniki”, where they were forced to stay for several hours. Later, the judges held that the participants of the unsanctioned anti-fascist picket were guilty of violating the procedure for holding a public event and fined each of them 1000 rubles (one of the applicants – 500 rubles). All of the detention protocols were filled out with violations and egregious mistakes, reports were not made by the people who carried out the detention, and there were examples of clear falsifications – none of this was reflected in the court judgments, despite the efforts of the lawyers.

The applicants challenged unlawful detention, the virtual refusal to allow the picket, and also the violation of the right to freedom of assembly. However, national courts found that holding the picket breached the procedure prescribed by law. Since the Russian courts failed to provide redress to the applicants, they lodged the case to the ECtHR on 18 October 2006. In particular the applicant complained of a violation of Art. 10 (freedom to express an opinion) and Art. 11 (freedom of assembly) of the European Convention in respect of the change of the demonstration site, and also in respect of charging the applicants with an administrative offence for not observing the “procedures of notification and agreement” for planned public events, pursuant to the Federal Law “On assembly, protests, rallies, demonstrations, and picketing” No. 54-FZ, 2004. The main arguments of the applicants were inadequate quality of the Russian law in light of the European standards and, as a consequence, the arbitrary construction of the law by the authorities, which in the given situation resulted in the abuse of powers against citizens and their inalienable rights.

The ECtHR held that the agreement procedure to hold a demonstration does not as such constitutes a violation of the right to freedom of assembly and association. The procedure is aimed at the need of the authorities to take measures to ensure safety and public order during the action. The Court held that since a state has the right to demand participants to conform with the procedure prescribed by law before holding public events, the authorities may also impose sanctions on persons who fail to observe these rules.

In Berladir and others against Russia, the ECtHR held that the refusal of the applicants to hold the picket under the conditions proposed by the authorities was unconvincing, and that the Moscow prefecture's proposal was sufficiently substantiated. The Court also pointed out that the applicants did not contest the refusal with the prefecture, but rather preferred to proceed with an unsanctioned picket, in spite of the proposed alternatives.

It is important to note that in the given case, two of the seven ECtHR judges expressed joint dissenting opinion, finding that the Russian authorities violated Art. 11 of the Convention. The judges Anatoly Kovler (selected from Russia) and President of the Chamber, judge Nina Vadzhich pointed out that the Russian authorities violated the right of the applicants to peaceful assembly. The judges considered the prefecture's refusal to allow the picket to be held under the stated conditions was not sufficiently substantiated and was based on fictitious reasons - such as the occupation of parking spaces on weekends, the possibility of safety problems arising and so on.

The judges especially appreciated the importance of the picket site to the applicants. In this matter, the change of site itself was an interference with the right of applicants to freedom of assembly. Thereby judges Kovler and Vadzhich found the interference of the authorities to be arbitrary and in violation of Article 11, read in conjunction with Article 10 of the Convention. Furthermore, the judges found that the applicants were denied an effective legal remedy, in so far as the court decisions were imposed after the event and could not prevent or resolve the situation before the picket. The national courts also did not give adequate assessment of the situation in light of the standards of the Convention, in violation of the requirements of Article 11.

Memorial Human Rights Center expresses its confusion relating to the formal approach of the majority of judges in the ECtHR in their assessment of Berladir and others against Russia. In our opinion, occupation of parking spaces and the impossibility of ensuring the safety of the event were unfounded grounds for the authorities' refusal to agree to the picket. Memorial was also surprised that the ECHR did not give weight to the applicant's argument on the importance of holding the action at the announced site – opposite the Mayor's office, which in the opinion of the human rights defenders had indulged radical nationalists.

Click the links below to see the messages from Memorial Human Rights Center on the events of the end of November 2005:

http://www.memo.ru/2005/11/27/miting.htm,

http://www.memo.ru/2005/11/27/razgon_piketa.htm,

http://www.memo.ru/2005/11/30/cherkasov.htm,

http://www.memo.ru/2005/11/30/raczinsky2.htm.

July 16, 2012

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