No convincing and compelling reasons given for restricting the location of public events
JUDGMENT
Pleshkov and others v. Russia 21.11.2023 (app. no. 29356/19 and 31119/19).
SUMMARY
The case concerned restrictions imposed by the authorities on the location of planned public events.
The applicant in 29356/19 was prevented from organising a small protest, on 11 October 2018, in
front of the State Duma (lower chamber of the Russian Parliament) building in central Moscow
against the recently voted increase in the State pension age. In application 31119/19, human-rights
activists were prevented from holding a public event on 22 December 2018 in Pushkin Square in
central Moscow to mark the anniversary of the first post-war political protest held there in
December 1965 and to urge the authorities to respect rights to freedom of expression and assembly.
The authorities proposed alternative locations for each event.
The Court found in particular that the national authorities and courts had failed to provide relevant
and sufficient reasons to justify the restrictions imposed on the applicants in exercising their right to
freedom of assembly.
PROVISION
Article 11
PRINCIPAL FACTS
The applicants are seven Russian nationals who were born between 1942 and 1990.
On 5 October 2018 the applicant in 29356/19, Mr Pleshkov, notified the prefect of the Central
Administrative District of Moscow of his intention to hold a three-hour demonstration on
11 October 2018 in front of the State Duma (lower chamber of the Russian Parliament) building in
central Moscow, to protest against the increase in the State pension age recently voted by the State
Duma. Twenty people were expected to attend.
Approval of the location chosen by the applicant for the event was not given. The prefect of the
Central Administrative District of Moscow indicated that the venue was unsuitable for public events
because it would be impossible to meet safety requirements there and it might cause disruption to
traffic and passers-by. An alternative location in Moscow’s Lermontov Park, some 3 km from the
State Duma building, was proposed.
Mr Pleshkov challenged that decision before the Taganskiy District Court of Moscow, submitting that
the aim of holding the event in front of the State Duma building was to make the State Duma
deputies aware that it was unacceptable to raise the State pension age. Moreover, there was
enough room in front of it not to obstruct pedestrian traffic or access to the building. On 10 October
2018 the Taganskiy District Court dismissed the complaint. That judgment was upheld on appeal.
Cassation appeals to the Moscow City Court and the Supreme Court were refused referral.
On 10 December 2018, the applicants in 31119/19 – human-rights activists – notified the Moscow
government of their intention to hold a three-hour demonstration on the afternoon of
22 December 2018 in Pushkin Square in central Moscow to mark the anniversary of the first postwar political protest held there on 5 December 1965 and urge the authorities to respect rights to
freedom of expression and assembly. About 1,000 people were expected to attend.
The Moscow Department of Regional Security replied that another public event was scheduled to
take place in Pushkin Square on that day and proposed that the demonstration be held at a special
venue for public events in Sokolniki Park.
Pointing out that Sokolniki Park was too far away from the headquarters of the public authorities
targeted by the intended message, some of the applicants requested further information about the
other event planned in Pushkin Square, in particular its time frame and the contact details of its
organisers. They asked the authorities to propose a time slot that would not overlap with the other
event and to assist in negotiations with its organisers. They received no reply.
The applicants challenged the refusal to approve the public gathering in Pushkin Square before the
Tverskoy District Court of Moscow, complaining that the authorities had not explained why it was
impossible to hold the two events simultaneously and had not provided information on the timing of
the other event or considered whether it was possible to schedule one before or after the other.
They relied on a previous Supreme Court Ruling that any interference by a public authority with the
right to freedom of public assembly had to be justified by submitting evidence of specific facts that
made it impossible for a public event to be held at a chosen location or time.
On 20 December 2018 the Tverskoy District Court dismissed the applicants’ complaint, stating that
the law-enforcement authorities had complied with statutory requirements, that the applicants’
rights had not been breached, and that the Moscow government had been informed by the office of
the prefect of the Central Administrative District of Moscow that the “Moscow Traditions of New
Year Celebrations” were taking place in Pushkin Square on 22 December 2018, approval for which
had been given on 21 November 2018.
After an immediate appeal, the Moscow City Court upheld the District Court’s judgment on
21 December 2018 and dismissed a further appeal on 6 June 2019. Two separate cassation appeals
to the Moscow City Court and the Supreme Court were refused referral.
THE DECISION OF THE COURT…
The Court decided that it had jurisdiction to deal with the case, as the facts giving rise to the alleged
violations of the Convention had taken place before 16 September 2022, the date on which Russia
ceased to be a Party to the European Convention.
The Court rejected the Government’s argument that the applicants in application no. 31119/19 had
not used all the legal avenues available at the national level. The Court confirmed the effectiveness
of judicial review of restrictions on the freedom of assembly under the Code of Administrative
Procedure, as interpreted by the national courts in the light of the Supreme Court Ruling of 26 June
2018. The applicants had resorted to judicial review of the refusal to approve their chosen location
for the public gathering, including lodging a cassation appeal to the Supreme Court of the Russian
Federation.
Article 11 (interpreted, where relevant, in the light of Article 10)
The Court noted that the refusals to approve the applicants’ chosen locations for their public events
were ostensibly due to concerns for public safety and to protect the rights and freedoms of others.
However, clear and substantiated reasons had to be given in the case of a refusal. The right of
peaceful assembly was one of the foundations of any democratic society, and only convincing and
compelling reasons could justify an interference with that right.
Application 29356/19: In reviewing the decision in Mr Plechkov’s case, the national courts should
have balanced his rights as event organiser against the public-interest considerations put forward by
the authorities. The basis for upholding the refusal related exclusively to traffic issues. The Court
reiterated that any demonstration in a public place may cause a certain level of disruption to
ordinary life, including traffic disruption. While it was not up to the Court to determine whether or
not that was a real risk in this particular case, the categorical exclusion of such a high-profile location
as being unsuitable for a public event due to safety reasons needed substantial justification on the
part of the national authorities and courts. However, the national courts had not assessed, contrary
to the Supreme Court Ruling, why it had not been possible for a group of 20 persons to demonstrate
in front of the State Duma building and had not shown how the security concerns clearly outweighed
the interests of the event organiser.
Furthermore, and again contrary to the Supreme Court Ruling, the national courts had not examined
whether the alternative location offered to Mr Pleshkov would have enabled his protest to have a
meaningful impact. Referring to the “Joint Guidelines on freedom of peaceful assembly”, issued by
the OSCE and the Venice Commission, as well as the “Compilation of Venice Commission Opinions
Concerning Freedom of Assembly” and the “Report of the UN Special Rapporteur on the right to
freedom of peaceful assembly and freedom of association”, the Court reiterated that the authorities
should have ensured that any alternative location would allow the event to still take place within
‘sight and sound’ of its target audience. However, the domestic courts had paid little attention to the
importance of the event’s intended location, instead simply stating that “an alternative location
accessible to the public” had been offered.
Therefore, the national courts had not applied standards which were conform to the principles
embodied in Article 11 of the Convention and had not struck a fair balance between the competing
interests. There had therefore been a violation of Article 11.
Application 31119/19: The Court noted that the Moscow government had given the New Year
celebrations already planned in Pushkin Square as the reason for their rejection of the applicants’
request, without providing any details such as the expected number of participants at those
celebrations or why the space available was too small for both events. The national courts had
upheld that decision, concluding that holding two events simultaneously would have posed a risk to
public order and safety.
The Court reiterated that, to prevent the dangers associated with overcrowding, it was not
uncommon for restrictions to be imposed on the location, date, time, form or manner of conduct of
a planned public gathering, even more so when events were being planned for the same place and
time. However, referring to the OSCE-Venice Commission Joint Guidelines, it reiterated that that
should not serve as a justification for a blanket prohibition on hosting more than one assembly at
the same place and time if there was no direct threat to public safety.
The Court noted that the national courts had agreed with the Moscow government’s assessment of
the risks to public order and safety but had done so without providing an estimated attendance
figure for the New Year celebrations, or the overall capacity of the venue. The authorities had made
no genuine effort to explore ways of accommodating both events in Pushkin Square, nor had they
proposed a suitable alternative location for effectively conveying the intended message of the
planned demonstration, bearing in mind the target audience and the fact that Sokolniki Park was
eight kilometres away and was less frequented.
The Court considered that the national authorities and courts had therefore failed to provide
relevant and sufficient reasons to justify the restrictions imposed on the applicants in exercising
their right to freedom of assembly. In such circumstances, those restrictions had not been necessary
in a democratic society. There had therefore been a violation of Article 11.
Other articles
The Court considered that there was no need for a separate examination of the complaints under
Articles 13 and 14.
Just satisfaction (Article 41)
The Court held, by six votes to one, that the finding of a violation constituted in itself sufficient just
satisfaction for the non-pecuniary damage sustained by the applicants. It held, unanimously, that
Russia was to pay 50 euros (EUR) to Mr Pleshkov (no. 29356/19) and EUR 3,000 jointly to all other
applicants (no. 31119/19) in respect of costs and expenses.
Separate Opinion
Judge Serghides expressed a partly dissenting opinion, which is annexed to the judgment.
