Bodalev v. Russia (Application no. 67200/12)
A selection of key paragraphs can be found below the judgement.
87. There is no indication that the police showed any degree of tolerance, which might have been appropriate in the present case. The applicant was not afforded an opportunity to express his views and was removed from the venues of the public meetings. The courts did not show any tolerance either, convicting him in relation to his presence at those meetings, without adequately establishing the relevant facts and irrespective of any considerations pertaining to their spontaneous nature.
88. It follows that the applicant’s convictions in relation to the events on 4 and 6 December 2011 were not convincingly shown to have been necessary in a democratic society. By implication, it is not decisive that following the conviction for the first event he was sentenced to two relatively small fines. As to the event on 6 December 2011, the applicant was sentenced to eleven-day detention, which was by itself disproportionate in the circumstances of the case (compare Chernega and Others, cited above, § 256).
93. The applicant received a fine equivalent at the time to EUR 497, which was the maximum statutory fine for an offence under Article 20.2 § 5 of the CAO. The Court considers that the amount of the fine was, in the circumstances, a disproportionate penalty vis-à-vis the applicant’s exercise of freedom of assembly as an ordinary demonstrator (compare Novikova and Others, cited above, § 212). When assessing the proportionality of this penalty, it is relevant to note that the applicant’s offence did not cause any damage whatsoever. […]
102. There is no indication that the applicant publicised or promoted the coming “performances”, specifically as an invitation to others to exercise together their right to freedom of peaceful assembly. Several other people, who were present at the venue on 27 June 2013, did not take an active part in the “performance”, except for one person who accompanied the applicant. That “performance” was intended to send a message to the migration authority rather than through the direct gathering of people – the latter in any case being usually unachievable during a short protest. Furthermore, the Court notes that like for spontaneous events, an obligation to inform the public authority of the intention to hold a potentially provocative performance – in particular, such as the one on 27 June 2013 – and punishment for failing to comply with that obligation may defeat the purpose of that kind of expressive conduct, which by its nature may need to be “spontaneous” or unexpected (compare Chernega and Others, cited above, § 239).
103. The Russian courts’ approach to the concept of assembly in the present case did not correspond to the rationale of the notification requirement for assemblies. Indeed, the application of that requirement to all forms of protest or expressive actions – rather than only to assemblies – would create a prior restraint which is incompatible with the free communication of ideas and might undermine freedom of expression (see Tatár and Fáber, cited above, § 40).
108. The court decisions disclose a failure by the national authorities to apply standards which are in conformity with the principles relating to Articled 10 and 11 of the Convention. The applicant’s convictions were not convincingly shown to have been necessary in a democratic society.
109. There have therefore been violations of Article 10 in relation to the events on 26 November 2012 and 27 June 2013 and of Article 11 of the Convention in relation to the other four events.