Russian civil society for freedom of assembly and the ECtHR Judgment implementation

By Tatiana Chernikova, a lawyer at HRC “Memorial”

and Denis Shedov, a lawyer at OVD-Info

The non-implementation of the ECtHR’s judgments is a very serious problem for Russia. According to the EIN data 221 leading cases against Russia are pending implementation. This represents 88% from all Russian leading cases from the last 10 years. The average time leading Russian cases have been pending implementation is 7 years and 6 months. In all Council of Europe’s countries except Azerbaijan the situation with the implementation of the ECtHR judgments is better than in Russia.

The reasons for non implementation of the ECtHR’s judgments by Russia are complex and are due to several factors.

Firstly, the mechanism of the implementation of the ECtHR’s judgments itself is not very strong. The ECtHR as a general rule does not indicate particular measures of implementation in its judgments except the payment of the compensation. It is up to the States to define the measure of implementation needed in each case and to report about it to the Committee of Ministers. So this process highly depends on the motivation and professional skills of the national authorities. Then the Committee of Ministers often does not give detailed recommendations to the authorities.

Secondly, Russia does not have a specific national institution responsible for the implementation of the ECtHR’s judgments. The Ministry of Justice is informing the other agencies about the ECtHR’s judgments and is collecting the information from them about the implementation. However the Ministry of Justice does not influence the other national agencies to implement the judgments.

Thirdly, some of the ECtHR’s judgments are politically sensitive for Russia as they contradict the politics of the Russian authorities. This particularly concerns the cases on freedom of assembly. Russia’s politics of the last years consists in numerous restrictions of the freedom of assembly. The ECtHR’s judgments at the opposite gave a large number of rights to the participants to the peaceful assemblies.

Special context for freedom of assembly in Russia

The situation with freedom of assembly remains alarming in Russia. Thousands of people are detained during  peaceful assembly yearly. For instance, 3637 people were detained at public events in Moscow last year. At the same time, Russian courts considered 4974 cases of violation on the procedure for holding public events in 2019. Usually, protesters faced fines and arrests in domestic courts. The total amount of fines for participation in peaceful assemblies in 2015-2019 was more than €2 millions. In 2014, the Russian parliament passed a special criminal article, which provides for punishment of up to 5 years in prison for repeated participation in protest gatherings or even solo demonstrations.

Currently, the Russian parliament discusses new bills to restrict even more freedom of assembly. Particularly, it is proposed to make gatherings’ authorisation more complicated, to ban all gatherings near buildings occupied by emergency services, including police and the Russia’s FSB security agency, to prohibit foreign and anonymous funding for gatherings, to introduce new restrictions for solo demonstrators and journalists, as well as to increase punishments for participants of gatherings in general. Some of these bills have been already passed in their first reading.

At the same time, since the ECtHR extended its jurisdiction to the Russian Federation in 1998, by early 2020 it has declared violations of the freedom of assembly by Russian authorities in 45 cases. This is almost 16% of all cases where the ECtHR has ever declared a violation of the freedom of assembly in 47 Council of Europe’s countries. In 2020, the ECtHR passed at least 20 judgments holding that there has been a violation of Article 11 of the European Convention by the Russian authorities. 9 leading cases of the ECtHR declaring violation of the freedom of assembly by Russian authorities are still not executed.

One of such leading cases is the case of Lashmankin and Others v. Russia, concerning issues of restrictive authorization procedure for public events, legislative bans on holding public events at certain locations, mass detention and arrests of peaceful demonstrators, excessive security measures taken by the police during public events in Russia, etc.

Taking into account the urgency of these issues for Russian society, the Human Rights Centre “Memorial” and the Human Rights media project OVD-Info launched a campaign to implement this ECtHR Judgment.

Campaign: steps, challenges and results

On 20 April 2020 “Memorial” and OVD-Info assisted by EIN prepared a Rule 9.2 submission to the Committee of Ministers on the implementation of the general measures in Lashmankin’s case. In this submission the NGOs provided a huge evidence of the violations of the right to freedom of assembly occurred in Russia after the Lashmankin’s case. They also described the problems with Russian law and practice. This includes the large possibilities for Russian authorities to not authorise peaceful assemblies, the contradictions between federal and regional laws, the lack of statistics on the number of authorised and non-authorised assemblies by the authorities,  the possibility of administrative arrests for the participation to peaceful assemblies, very high administrative fines,  criminal liability for participating in several unauthorised public assemblies, ineffective control over the police’s actions during detentions, ineffective court’s control over the whole process of implementation of the right to freedom of assembly in Russia. The submission also provided a detailed list of recommendations.

On 3 September 2020 the Committee of Ministers adopted a decision with the assessment of the implementation of the Lashmankin’s case by Russian authorities. It states that although certain positive steps were taken by Russian authorities this is insufficient to achieve tangible progress. The Committee of Ministers also gave some recommendations to the Russian authorities asking them to narrow the local authorities’ discretion on planning assemblies, to show tolerance to peaceful assemblies, to exclude the criminal responsibility for the participants to peaceful assemblies, to make reasonable the fines, to not apply to solo demonstrations the restrictions applicable to mass demonstrations. The Committee of Ministers decided to return to the examination of this issue in June 2021.

Creation of the national coalition of NGOs

In September - November 2020 a coalition of NGOs was created in Russia in support of the national implementation of the Lashmankin’s case. It includes the following NGOs: Human Rights Center Memorial, OVD-Info, Moscow Helsinki Group, Apology for protest, Public Verdict, Team 29, the Institute for Law and Public Policy,  Mass Media Defence Centre, Open Russia, LGBT-group “Stimul”.

On 3 December 2020 the coalition submitted a united request to the Ministry of Justice asking to support the national implementation of the general measures based on Lashmankin’s case. The coalition referred to the recommendations from the submission of “Memorial” and OVD-Info to the Committee of Ministers of 20 April 2020 and from the decision of the Committee of Ministers of 3 September 2020. The NGOs asked the Ministry of Justice to share these recommendations with the other Russian national agencies and the authorities. The NGOs also asked to initiate an expert discussion on the implementation of the general measures on Lashmankin’s case with the participation of members of different Russian agencies and the members of NGOs working on this issue. The information about the submission of this request has been published in several Russian media (e.g. Interfax and Kommersant).

Campaigning on specific issues

As a part of the Lashmankin’s case implementation campaign, a smaller campaign on the Kablis v. Russia Judgment execution is runned. The Kablis’ case is the ECtHR’s Judgment from Lashmankin’s execution group concerning regional territorial bans for public events in Russia. It stands to mention that the execution of this case seems to be more successful. Following the ECtHR’s Judgment, the Russian Constitutional Court also issued two decisions on this issue, declaring inadmissible the restriction of gatherings near government agencies, educational, medical, military and religious sites.

In this campaign the NGOs coalition is supported by members of the Presidential Human Rights Council, they communicate the issue with the heads of Russian regions, and by the Russian Commissioner for Human Rights, she sent out relevant proposals for changing local laws to the regional parliaments.

As a result, the effects of this work are already visible: Russian regions are changing local laws in a positive way. The maps below show how local laws have been changed during one year in order to allow assemblies near buildings occupied by authorities.

Conclusion

Overview of the execution of the Constitutional Court Judgment in 60 regions where there were bans on actions around the types of objects explicitly indicated in the ruling of June 4 (data relevance - early October 2020).

●      Red - no more ban;

●      Orange - the ban is partially canceled;

●      Light orange - local law changes discussed;

●      Black - refused to lift the ban;

●      Gray - no information.

The implementation of the ECtHR’s judgments on the freedom of assembly cases in Russia is a complex and long-standing process. It requires a number of actions in different areas including monitoring and reporting process, legal actions in support of the individuals, advocacy actions for the establishment of the contacts with the national authorities, information campaigns with the participation of the media, preparation of reports to the international organisations.

We have started the work in all these directions. However this work needs to be followed up and become stronger. We plan to continue the work of the coalition of the national NGOs and to send new requests to different Russian agencies including the Commissioner on human rights and the Parliamentary parties. We are continuing to monitor the new violations of the right to freedom of assembly in Russia (including the new restrictive laws) and we expect to inform the Committee of Ministers about the new development of the situation in April 2021. We plan to build a stronger cooperation with the media in order to inform the new audience about this issue.

It is important to not stop the efforts in this direction and to do all we can in order that the  right to freedom of assembly is respected in Russia.

The map below shows regions where local laws have to be changed until 5 December 2020