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ECHR: Governments' tolerance of peaceful, even unauthorised, demonstrations

Author: Loredana Cristea

ECHR: Governments must show a degree of tolerance towards peaceful demonstrations, even unauthorized ones

For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others. (Nelson Mandela)

The Grand Chamber of the European Court of Human Rights ruled on 15 November 2018 that Russia had violated the European Convention on Human Rights by abusively sanctioning Aleksei Navalnyi for his participation in peaceful assemblies (Navalnyi v. Russia, Application No. 29580/12).

Aleksei Navalnyi is a political activist, Russian opposition leader, blogger and anti-corruption supporter. He has been arrested on multiple occasions during public rallies against the government, and has subsequently been convicted by Russian courts. Mr Navalnyi has filed a complaint with the European Court of Human Rights, claiming that his rights under the Convention have been violated.

On freedom of assembly

The right to participate in public meetings and assemblies is said to be part of the essence of the right to free expression, an integral part of the rule of law.

In defining the freedom of assembly, the ECHR's extensive case law has held that, on the one hand, this right implies the possibility for a person to physically participate in assemblies[1], but also the prerogative to participate in demonstrations without the risk of being subjected to sanctions, considering that disproportionate punishment of a person for taking part in illegal assemblies is a violation of the right guaranteed by Article 11 ECHR[2].

2] The Court has also held in its case-law that the peaceful nature of a demonstration is essential for it to benefit from the protection of Article 11, but sentencing a person for merely attending such a demonstration, without the court having to consider whether it was peaceful or violent, constitutes a violation of democratic principles in the absence of incitement to violence. [3] Moreover, a person does not cease to enjoy the right to freedom of peaceful assembly because of sporadic acts of violence or other offences committed by other persons in the course of a demonstration, if the person in question maintains his peaceful intentions and conduct[4]. The burden of proving the violent intentions of the organisers of a demonstration lies with the authorities[5].

Last but not least, with regard to the authorisation of demonstrations, the ECHR has established[6] that the existence of prior authorisations does not contravene Article 11, but the prohibition of such protests must be substantiated by proof of serious danger. Merely invoking the danger of incidents with other persons does not comply with the requirements of the ECHR.

What were the arguments invoked?

Mr Aleksei Navalnyi complained that his 7 arrests and 2 detentions totalling 172 days of deprivation of liberty had no legitimate basis, as the authorities arrested him while he was participating in peaceful meetings. He also criticised the fact that the authorities' actions were based on political reasons and not on the violation of any legal obligations.

The Grand Chamber ruled unanimously that they had been breached:

(a) Article 6 para. 1 on the right to a fair trial;

b) Article 5 para. 1 on the right to liberty and security/rightfulness of arrest or detention;

c) Article 11 on freedom of peaceful assembly;

d) Article 18 on the limitation of the use of restrictions of rights.

What did the Court find?

The European Court ruled that Articles 5 and 6 of the Convention were violated, as there was no reason why the minutes of the fines should not be drawn up on the spot, and not by bringing the applicant to the police station, where he was detained for several hours, without the Government providing any justification for this.

As regards Article 11 of the Convention, the Court pointed out that freedom of assembly is a fundamental right and, although governments may regulate procedures for authorising such meetings, their implementation cannot lead to the abolition of the right to assembly in substance. In this sense, for an intervention on the right to assembly to be justified, it should have a legitimate purpose, such as the prevention of crime or the violation of the rights of others (which must be proven in each individual case).

Thus, the measures taken were not necessary in a democratic state, considering also that measures of a criminal nature should not, in principle, be taken against persons participating in peaceful assemblies, this being a measure with important consequences on the freedom of the person which should be applied only as a last resort.

The Court held that since Russia does not have legislation protecting participants in demonstrations, protests and meetings against arbitrary interference, it requires the Russian State to implement the necessary framework and mechanisms so that the authorities protect the fundamental right to participate in peaceful demonstrations and, moreover, show tolerance towards unauthorised ones.

Consequently, Russia was ordered to pay Aleksei Navalnyi €50,000 in moral damages, €1,025 in material damages and €12,653 in legal costs.

[1] ECHR, Judgment. Adali v. Turkey;

Mkrtchyan v. Armenia;

[3] ECHR, Judgment of the Court of First Instance of the European Communities in Case C. Cetinkaya v. Turkey;

[4] ECHR, Ziliberberg v. Moldova and Ziliberberg v. Moldova. Primov and others against Russia;

[5] ECHR, Judgment of the Court of Justice of the European Communities in Case Christian Democratic People's Party v. Moldova;

[6] ECHR Judgment of the Court of Justice of the European Communities in Ivanov and others against Ukraine;

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