Conviction for violent protest in Ministry regarding pensions. Non-individualization of the responsibility of each accused and condemnation for the political messages of the protest! Violation of freedom of expression
JUDGMENT
Yezhov and others v. Russia 29.06.2021 (app. no. 22051/05)
SUMMARY
Protest before Ministry for a pension bill with violent invasion. Criminal conviction of the accused. Non-individualization of criminal responsibility of each accused. Freedom of expression.
The applicants, the opposition members, wanting to protest the new bill on pensions invaded the Ministry of Health, occupied the offices by nailing the doors, drove the employees, waved the flags of the party and threw brochures with anti-government slogans. They were arrested and sentenced to between two and three years in prison. They brought an action for violation of the freedom of expression and the freedom of assembly.
The Courtt found that the applicants’ protest concerned a matter of public interest, namely the award of pensions. The measures in question concerned a pressing social need but the applicants did not have the right to disrupt the functioning of the public service and cause damage, so their arrest was justified.
The ECtHR found that the applicants had been convicted by a domestic court without conducting an individual assessment of the facts for each of the accused. The national court did not specify the individual role of each of the applicants during the protest, the extent of his participation and his individual acts. The court had also condemned not only the criminal acts attributed to the accused but also the content and form of the political message they wished to spread (“anti-government leaflets”, “shouted anti-government slogans”, “showed a clear lack of respect for … the state power … throwing the portrait of the President of the Russian Federation out the window »). In so doing, the domestic authorities showed, to a certain extent, empathy for the applicants’ political views. It thus found, by a majority, that the freedom of expression had been violated (Article 10) in so far as the reasons for the applicants’ conviction were not relevant and sufficient.
Finally, the ECtHR ruled that there was no reason to examine the complaint separately for violation of the freedom of assembly (Article 11 of the ECHR).
The Court awarded EUR 7,500 to each of the applicants for non-pecuniary damage.
PROVISIONS
Article 10
Article 11
PRINCIPAL FACTS
The applicants, Sergey Aleksandrovich Yezhov, Oleg Aleksandrovich Bespalov and Grigoriy
Anatolyevich Tishin, are Russian nationals who were born in 1985, 1977 and 1986 respectively.
The case concerns the applicants’ prosecution and conviction for a gross breach of public order
committed by an organised group.
The applicants – members of the National Bolshevik Party (“the NBP”) – took part in a protest against the introduction of a law concerning social benefits received by various groups of the population. The NBP members dressed in emergency-service uniforms, forced entry into the building of the Ministry of Health and Social Development (“the Ministry”) and occupied offices, telling employees to leave. They nailed the doors shut from inside using nail guns and blocked them with office furniture, waved NBP flags out of the windows, threw out leaflets and chanted slogans calling for the resignation of the Minister for Health at the time. They also set off firecrackers and threw a portrait of the President of Russia out of the window. They stayed in the office for about an hour before the police broke through the doors and arrested them.
The applicants were held in pre-trial detention and convicted by a District Court of a gross breach of public order and intentional destruction and degradation of others’ property in public places, and sentenced to a term of imprisonment. They were also ordered to pay the Ministry compensation for the damage sustained. On appeal the convictions were upheld but the sentences were reduced.
They rely on Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the
Convention.
THE DECISION OF THE COURT…
Article 10:
The applicants’ arrest, detention and conviction had constituted an interference with the right to freedom of expression, which had been “prescribed by law” and followed the legitimate aims of preventing disorder and protecting the rights of others. The Court therefore had to determine whether the interference had been “necessary in a democratic society”.
As to whether the measures in issue had corresponded to a “pressing social need”, the applicants’ protest had concerned a topic of public interest, that is, the pending introduction of a controversial law, and they had wished to draw the attention of their fellow citizens and public officials to their disapproval of it. They had not, however, had a right to enter a publicly owned property, such as the office building of the Ministry, in the manner that they did, to express their opinion (see similarly Taranenko v. Russia). The police had therefore been justified in arresting the applicants and removing them from the premises of the Ministry, with a view to the protection of public order and the resumption of the Ministry’s functions, and those actions appeared proportionate to the aim pursued. Whether their criminal convictions had also met a pressing social need depended on the reasons provided by the national courts and the proportionality of the sentences.
The applicants had been convicted of a gross breach of public order as a result of their conduct during the protest. The District Court had condemned the methods employed by them as being proscribed by the law (using nail guns to block the doors, throwing firecrackers onto the street, forcing Ministry’s employees out of their offices and damaging the property). The prosecution and conviction of the applicants had therefore been justified by the need to attribute responsibility for committing such acts and to deter similar crime. However, the District Court had not sought to establish the individual role of each of the applicants during the protest, the extent of their involvement and their individual acts during the protest, having thus deprived them of the opportunity to contest the concrete reasons for limiting their freedom of expression. By failing to make an individual assessment of facts in respect of each of the applicants the District Court had denied them an important procedural safeguard against arbitrary interference with the rights protected under Article 10.
Furthermore, the District Court had condemned not only the criminal acts imputed to the applicants but also the content and the form of the message conveyed by them (“prepared … anti-government leaflets”, “chanting anti-government slogans”, “showing manifest lack of respect for … State authority by … throwing the portrait of the President of the Russian Federation out of the window”) and had penalised them for that political message. By doing so, it had showed a degree of animus towards the applicants’ political views that was difficult to reconcile with the Article 10 duty on national authorities to remain neutral with respect to legitimate political viewpoints and not to dissuade others from criticising government policies altogether. The District Court had considered the applicants’ anti-government rhetoric as unacceptable or even criminal, thus going beyond the narrow margin of appreciation afforded to the domestic authorities under Article 10 in respect of political speech, matters of public interest and criticism of the government, all of which enjoy a high level of protection from State interference.
The Court was therefore not convinced that the reasons given in support of the applicants’ conviction had been “relevant and sufficient” for the purposes of Article 10 § 2.
Regarding the sanction imposed on the applicants, they had initially been sentenced to five years’ imprisonment, reduced to two years and six months’ imprisonment for the first and third applicants and to three years’ imprisonment for the second applicant. The Court reiterated that it examines with particular scrutiny the cases where sanctions imposed by the national authorities for protest-related conduct involve a prison sentence. It did not consider that the sanction imposed on the applicants in the present case had been proportionate to the aim of the punishment of their criminal conduct, in the light of its case-law on the matter. Even considering that the behaviour of the applicants had been more disruptive (mostly owing to the nailing of the doors) than the actions of the applicant in the case of Taranenko, the sanctions imposed on the current applicants (at first four months in detention on remand that was then calculated as part of the custodial sentence between two and a half and three years) had nevertheless been significantly more severe than the sanction in Taranenko (detention on remand for a year and three years’ imprisonment, suspended for three years), which suggested a generally repressive attitude of the national authorities towards the members of this political movement.
The foregoing was sufficient to conclude that the interference in question had not been necessary in a democratic society.
Conclusion: violation (six votes to one).
The Court also held, by six votes to one, that there was no need to examine separately the complaint under Article 11, having regard to the facts of the case, the parties’ submissions and the findings under Article 10.
Article 41: EUR 7,500 each in respect of non-pecuniary damage.
