Submission on the Implementation of Lashmankin and Others group v. Russian Federation (Application No. 57818/09)

DGI - Directorate General of Human Rights and Rule of Law  
Department for the Execution of Judgments of the ECHR  
F-67075 Strasbourg Cedex France  
E-mail: dgI-execution@coe.int  

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24 January 2022  

Submission by Human Rights Watch pursuant to Rule 9.2 of the Committee of Ministers’ Rules for the Supervision of the Execution of Judgments, Observations on the Implementation of Lashmankin and Others group v. Russian Federation (Application No. 57818/09)

Introduction

1. In line with Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, Human Rights Watch hereby presents a communication regarding the execution of the European Court of Human Rights (“the Court”) judgment in the case of Lashmankin and Others v. Russia (Application no. 57818/09 and others).
2. The Lashmankin group of cases mainly concerns a range of human rights violations in the context of peaceful assemblies.
3. The submission aims to address steps taken by Russia in the area of freedom of assembly since the adoption of Interim Resolution CM/ResDH (2022)54 (“Interim Resolution”) adopted by the Committee of Ministers (“CM”) on March 9, 2022. This submission is focused on Russia’s consistent failure to implement measures indicated by the CM and following from the Court’s judgment, including non-compliance with the prescribed measures and Russia’s regress with respect to fulfilment of its freedom of assembly obligations under the European Convention on Human Rights.
4. This submission provides evidence as to Russia’s absolute failure to abide by the final judgements in the Lashmankin group of cases.

Individual measures

5. Since the adoption of the law[1] prohibiting the enforcement of European Court of Human Rights’ judgements which entered into force after March 15, 2022, Russian authorities refused to pay out compensations awarded by the Court to applicants as just satisfaction.[2] There is no reason to believe that further individual measures will be adopted by Russian authorities, including reopening of administrative offence proceedings after the Court’s judgments (in the past, this practice existed, although it was limited).

General measures

6. In the Interim Resolution, the CM reiterated the measures to be provided by Russia on the domestic level. It had previously noted several limited advances in their implementation. However, as described below in this submission, since the adoption of the Interim Resolution, Russia has not only failed to implement any further concrete measures to promote the enjoyment of freedom of peaceful assembly but rather backtracked on prior limited improvements, indicating a consistent lack of willingness to implement the judgements.

Further restrictions on assemblies near some locations

7. Following Russia’s Constitutional Court judgment of June 4, 2020 outlawing bans on assemblies near government buildings and further general bans near specified places, regional authorities have been slow to repeal such bans.
8. In Russia’s May 3, 2020 Action Plan they refer to measures taken by Samara Region legislators in response to the Constitutional Court judgement.[3] Following the judgement, Samara Region replaced the general ban with an itemized list of places where assemblies are prohibited spanning 93 pages and more than a thousand addresses — thus undermining its significance in practice.[4] On April 4, 2022, the Supreme Court upheld the bans when framed as an exhaustive list of specific buildings, rather than a general ban, despite the Constitutional Court judgement.[5]
9. Finally, any progress achieved in this area was reversed by the December 5, 2022 law banning rallies and marches at the territories “immediately adjacent” to government offices and places of worship grounds.[6] Such bans significantly restrict public events, especially in large cities’ centers.
10. On September 29, 2022, the Constitutional Court upheld the December 30, 2020 ban on assemblies near buildings of emergency services, finding that prosecution of a solo picketer for staging a protest near a police station does not violate their rights.[7]

Failed abrogation of the provision allowing a judge to qualify several peaceful solo demonstrations as one mass assembly requiring authorization

11. In their May 25, 2021 Action Plan, Russian authorities cited the May 17, 2021 Constitutional Court judgement finding unconstitutional the requalification of solo demonstrations organized by Irina Nikiforova, each one on a different day, into a single mass event requiring prior approval and indicating that her case is subject to review.[8]
12. However, on December 23, 2021, the Supreme Court in a final decision declined Nikiforova’s appeal against her administrative conviction — in the very case the Constitutional Court considered — finding no reasons to overturn it.[9] Thus, the Constitutional Court judgement became unenforceable in practice.
13. Moreover, the Constitutional Court further considered a complaint by Ilya Shablinkiy that sought to extend the Nikiforova judgement to solo demonstrations held at different times on the same day. The Constitutional Court rejected the application holding that requalification of sequential solo demonstrations within the same day into a mass event does not violate the applicant’s rights.[10]
14. Given the exceptionally limited circumstances to which the May 17, 2021 Constitutional Court judgement can apply, it is not in any way indicative of any real progress in promoting freedom of peaceful assembly.

Lack of clearer regulation of blocking social networks, to be subject to judicial control

15. In its Interim Resolution, the CM called on Russia to revise other laws, in particular the Information Act, in respect of the powers to block social media accounts and punish calls for peaceful assembly.
16. No progress has been made in this regard. On the contrary, on July 14, 2022, the law was amended to provide for lifetime blocking of access to web resources in the event an accused has repeatedly distributed “illegal” information, which includes calls for unauthorized protests. The decision to block access for life is made by prosecutors without judicial approval, and must be enforced immediately.[11]

Additional restrictions impacting assemblies

17. On March 4, 2022, Russian authorities banned “discrediting” the deployment of Russian armed forces. In practice this ban covers all forms of anti-war expression. It allows local governments to prohibit anti-war assemblies that they consider have “illegal” goals.[12]
18. Authorities prosecuted at least 1 thousand people for attending anti-war rallies and online posts about them under the legislation on discrediting the deployment of Russia’s armed forces. The new law includes penalties for participants in assemblies under article 20.3.3 of the Code of administrative offences even when no notification of the authorities should be required (for example, with respect to single person pickets or events in specially designated places). It provides for a harsher fine for calls to anti-war rallies of 50,000 to 100,000 Russian rubles (US$725 to 1,451). Repeat offence entails criminal prosecution under article 280.3 of the criminal code punishable with up to 5 years’ imprisonment.
19. On October 19, 2022, the president introduced countrywide war-related measures, including reinforced measures to protect public order.[13] Regional authorities proceeded to adopt additional arbitrary restrictions, including bans on assemblies, which they used to reject applications to hold protest events.[14]

Disproportionate sanctions against peaceful participants of unauthorized assemblies

20. According to the data provided by the Supreme Court Judicial Department, in the first half of 2022, 14,180 people were convicted for violating assembly rules or staging a “simultaneous mass presence” under articles 20.2 and 20.2.2 of the code of administrative offences. Courts imposed 1,465 administrative arrests, 361 compulsory work orders and 12,352 fines averaging approximately 13,700 rubles ($300).[15] Such punishments have been routinely found to be disproportionate under the European Court of Human Rights’ established case-law.[16]

Threat of criminal sanctions for peaceful demonstrators

21. In April, Kirill Ukraintsev, a labor leader, was charged under article 212.1 of the criminal code (repeated violations of assembly rules) over his social media posts calling on delivery workers to protest violations of their labor rights. At the time of writing, he remains in pre-trial detention.[17]
22. On August 8, 2022, a court in Kaliningrad convicted Vadim Khayrullin, one of the applicants in Lashmankin and Others v. Russia, under the same article and sentenced him to one year imprisonment.[18]
23. In December 2022, Olga Nazarenko was charged with a repeat violation of assembly rules and discreditation of the armed forces (articles 212.1 and 280.3 of the Criminal code) over conducting a single-person picket.[19]

Local authorities: ignoring the need to properly substantiate any restriction of freedom of assembly and favoring pro-government events

24. Local authorities continued to misuse Covid-19 restrictions to prevent and suppress peaceful protests.
25. The Constitutional Court rejected several complaints against the Covid-19 restrictions imposed by authorities.[20]
26. Regarding solo demonstrations, the court concluded that even a total ban would be compliant with the principle of proportionality, as people could resort to other ways of expressing their opinion instead of organizing public events. It did not, however, provide any reason for the differential treatment of protest assemblies and solo demonstrations compared to mass pro-government assemblies or entertainment events.[21]
27. State-sponsored or pro-government events were held on a regular basis in different regions of the country despite the Covid-19 restrictions. For instance, the Kemerovo region governor by special decrees exempted pro-government and pro-war rallies held on April 1 and May 6, 2022, from any Covid-19 restrictions.[22] At the same time, local authorities refused to authorize smaller rallies (and, previously, even solo demonstrations[23]) citing the threat of Covid-19 contagion. If challenged in courts, such decisions were endorsed by judges.[24]
28. In Moscow, several pro-government assemblies took place in August–October, including pro-war rallies and flash mobs and anti-LGBT events.[25]
29. On September 23, 2022, a state-sponsored rally to support the so-called “referendums” in four Russia-occupied Ukrainian territories in Donetsk, Luhansk, Zaporizhzhia and Kherson regions took place in Moscow. The organizers only reached out to the Moscow authorities two days in advance of the mass event.[26] The rally was dubbed “authorized” by state-sponsored media and was attended by 50,000 people, according to the police.[27]
30. Meanwhile, the authorities showed no tolerance for assemblies and other forms of expression critical of the government. For instance, Moscow authorities cited Covid-19 restrictions and refused to approve a 500-strong rally in support of a media outlet fined for “discrediting” the deployment of the armed forces in Ukraine, a picketing of up to five people, the annual event organized by a leading human rights group in the country to commemorate victims of Stalinist repressions.[28]
31. In September, two people were convicted for violating assembly rules by distributing leaflets with anti-government content at a pro-war assembly approved by Moscow authorities.[29]

Police: use of excessive force; lack of tolerance for peaceful albeit unauthorized gatherings

32. Russian authorities do not tolerate unauthorized peaceful gatherings and brutally arrest perceived assembly participants for the mere fact of participation. OVD-Info, a leading Russian rights group, estimates that of the total of 19,478 detentions carried out by police during demonstrations from February 24, 2022, to the end of the year, the majority were detained over exhibiting a public anti-war stance.[30]
33. The police routinely use excessive force, which in some cases amounted to torture or inhuman and degrading treatment. Human Rights Watch analyzed and verified 27 videos recorded in St Petersburg and Moscow city centers that were published on social media on February 24, the day mass spontaneous anti-war rallies erupted across the country in response to Russia’s full-scale invasion of Ukraine. The videos document brutal arrests of peaceful activists by police officers. In at least four cases, the videos show police officers beating protestors, pushing them to the ground, dragging them, grabbing them by the head, and choking them.[31]
34. During the March 6 anti-war rallies, the police used excessive force against protesters while detaining them and, in several instances, inflicted abuse amounting to torture or inhuman and degrading treatment on those in custody. A video from Moscow shows five police officers detaining a man, while one of them kicks him. In St Petersburg, police officers were filmed pushing a man to the ground and punching him. A police officer in Moscow hit a protester with his baton while he and his fellow officers had the protester restrained. In St Petersburg, between four and six police officers were filmed beating a man, pinned to the ground, with batons and then apparently administering electric shocks. The use of a shocker on a person in police custody violates the prohibition on torture and other cruel, inhuman, or degrading treatment.[32]
35. Authorities declined to investigate numerous credible reports of torture and inhuman and degrading treatment of protesters in police stations.[33]
36. Along with earlier reports by Human Rights Watch and leading Russian rights groups,[34] these examples are illustrative of Russia’s systemic problem in policing assemblies and clearly demonstrate that the measures reported by Russian authorities to the CM in May 22, 2020 and May 3, 2021 Action Plans have not been effectively implemented or sufficient in practice.

Message of tolerance

37. In the Interim Resolution, the CM again urged Russian authorities to send a clear high-level message of tolerance for all, including unauthorized, peaceful assemblies. Law enforcement agencies, however, continued stigmatizing peaceful protests and aimed at intimidating people into abstaining from enjoyment of their assembly rights.
38. For instance, on February 24, 2022, the Investigative Committee published a news release smearing calls to assemblies as “provocations” and warning that organizing unsanctioned gatherings is a prosecutable offense. It also threatened “harsh punishment” for organization of “mass riots.”[35]
39. On March 3, 2022, Moscow police stated they would “immediately” suppress unauthorized gatherings and threatened prosecution for “anyone” violating assembly regulations by means of participating in unauthorized events.[36] The Prosecutor General’s office threatened to investigate persons taking part in anti-war assemblies for alleged involvement in extremist activities.[37]
40. Thus, following on Russia’s full-scale invasion of Ukraine, the authorities doubled down on their campaign of intimidation against peaceful protesters in an attempt to eviscerate dissent.

Recommendations to the Committee of Ministers

41. Human Rights Watch urges the Committee of Ministers to:

1. Continue to call on Russia to comply with the Court’s judgements within the Lashmankin group of cases, to implement the Committee’s resolutions in that respect to date, including adoption of necessary legal reforms.
2. Seek repeal of the provisions in the law No. 183-FZ, 2022, which prevent enforcement of ECHR judgements.
3. Seek repeal of the provisions in law No. 498-FZ, 2022, which ban rallies and marches at the territories “immediately adjacent” to government offices and places of worship grounds.
4. Seek repeal of the provisions in law No. 277-FZ, 2022, granting power to arbitrarily block access to web resources, including in relation to issues of peaceful assembly.
5. Seek repeal of the legal provisions that prohibit exercise of freedom of expression and peaceful assembly deemed to discredit Russia’s armed forces and/or their deployment, particularly in Ukraine.
6. Reiterate that Russia is under obligation to continue to enforce judgments adopted by the Court, which are legally binding.
7. Continue supervision of pertinent Russian cases.