Decision-making and review process
- The regulatory authority… should fairly and objectively assess all available information to determine whether the organisers and participants of a notified assembly are likely to conduct the event in a peaceful manner, and to ascertain the probable impact of the event on the rights and freedoms of other non-participant stakeholders. In doing so, it may be necessary to facilitate meetings with the event organiser and other interested parties.
- The regulatory authority should also ensure that any relevant concerns raised are communicated to the event organiser, and the organiser should be offered an opportunity to respond to any concerns raised. This is especially important if these concerns might later be cited as the basis for imposing restrictions on the event. Providing the organiser with such information allows them the opportunity to address the concerns, thus diminishing the potential for disorder and helping foster a cooperative, rather than confrontational, relationship between the organisers and the authorities.
- Assembly organisers, the designated regulatory authorities, law enforcement officials, and other parties whose rights might be affected by an assembly, should make every effort to reach mutual agreement on the time, place and manner of an assembly. If, however, agreement is not possible and no obvious resolution emerges, negotiation or mediated dialogue may help reach a mutually agreeable accommodation in advance of the notified date of the assembly. Genuine dialogue between relevant parties can often yield a more satisfactory outcome for everyone involved than formal recourse to the law. The facilitation of negotiations or mediated dialogue can usually best be performed by individuals or organisations not affiliated with either the State or the organiser. The presence of parties’ legal representatives may also assist in facilitating discussions between the assembly organiser and law enforcement authorities. Such dialogue is usually most successful in establishing trust between parties if it is begun at the earliest possible opportunity. Whilst not always successful, it serves as a preventive tool helping to avoid the escalation of conflict or the imposition of arbitrary or unnecessary restrictions.
- Any restrictions placed on an assembly should be communicated in writing to the event organiser with a brief explanation of the reason for each restriction (noting that such explanation must correspond with the permissible grounds enshrined in human rights law and as interpreted by the relevant courts). The burden of proof should be on the regulatory authority to show that the restrictions imposed are reasonable in the circumstances… Such decisions should also be communicated to the organiser within a reasonable timeframe — i.e. sufficiently far in advance of the date of a proposed event to allow the decision to be judicially appealed to an independent tribunal or court before the notified date of the event.
- The regulatory authority should publish its decisions so that the public has access to reliable information about events taking place in the public domain. This might be done, for example, by posting decisions on a dedicated web-site.
- Policing Public Assemblies
- Governments must ensure that law enforcement officials receive adequate training in the policing of public assemblies. Training should equip law enforcement agencies to act in a manner that avoids escalation of violence and minimises conflict, and should include «soft skills» such as negotiation and mediation…
- Law enforcement agencies should be proactive in engaging with assembly organizers: [o]fficers should seek to send clear messages that inform crowd expectations and reduce the potential for conflict escalation… Furthermore, there should be a nominated point of contact within the law enforcement agency whom protesters can contact before or during an assembly. These contact details should be widely advertised…
- The policing operation should be characterized by a policy of «no surprises»: [l]aw enforcement officers should allow time for people in a crowd to respond as individuals to the situation they face, including any warnings or directions given to them…
- Using mediation or negotiation to de-escalate tensions during an assembly: [i]f a standoff or dispute arises during the course of an assembly, negotiation or mediated dialogue may be an appropriate means of trying to reach an acceptable resolution…
- Law enforcement officials should differentiate between peaceful and non-peaceful participants: [n]either isolated incidents of sporadic violence, nor the violent acts of some participants in the course of a demonstration, are themselves sufficient grounds to impose sweeping restrictions on peaceful participants in an assembly… Law enforcement officials should not therefore treat a crowd as homogenous if detaining participants or (as a last resort) forcefully dispersing an assembly.
- Policing peaceful assemblies that turn into non-peaceful assemblies: [a]ssemblies can change from being peaceful to non-peaceful and thus forfeit the protection afforded under human rights law… Such an assembly may thus be terminated in a proportionate manner. However, the use of violence by a small number of participants in an assembly (including the use of inciting language) does not automatically turn an otherwise peaceful assembly into a non-peaceful assembly, and any intervention should aim to deal with the particular individuals involved rather than dispersing the entire event.
- Dispersal of assemblies: [s]o long as assemblies remain peaceful, they should not be dispersed by law enforcement officials. Indeed, dispersal of assemblies should be a measure of last resort and should be governed by prospective rules informed by international standards. These rules need not be elaborated in legislation, but should be expressed in domestic law enforcement guidelines, and legislation should require that such guidelines be developed. Guidelines should specify the circumstances that warrant dispersal, and who is entitled to make dispersal orders (for example, only police officers of a specified rank and above).
- Dispersal should not occur unless law enforcement officials have taken all reasonable measures to facilitate and protect the assembly from harm (including, for example, quieting hostile onlookers who threaten violence), and unless there is an imminent threat of violence…
- Dispersal should not therefore result where a small number of participants in an assembly act in a violent manner. In such instances, action should be taken against those particular individuals. Similarly, if «agents provocateurs» infiltrate an otherwise peaceful assembly, the authorities should take appropriate action to remove the «agents provocateurs» rather than terminating or dispersing the assembly, or declaring it to be unlawful…
- If dispersal is deemed necessary, the assembly organiser and participants should be clearly and audibly informed prior to any intervention by law enforcement personnel. Participants should also be given reasonable time to disperse voluntarily. Only if participants then fail to disperse may law enforcement officials intervene further.»
- Alleged violation of Article 11 of the Convention
- The applicant alleged a violation of his right to peaceful assembly. He complained, in particular, of disruptive security measures implemented at the site of the meeting at Bolotnaya Square, about the early termination of the assembly and about his own arrest followed by his conviction for an administrative offence. He relied on Article 11 of the Convention, which reads as follows:
«1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
- No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.»
- The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
- The parties’ submissions
(a) The Government
- The Government contended that the authorities had acted lawfully and reasonably in the preparation of the public assembly of 6 May 2012, during the event and in assessing the need and the means to disperse it at the point when it ceased to be peaceful. They pointed out that the Moscow authorities and the event organisers had worked out the terms of the public assembly in their written exchange and in person at the working meeting on 4 May 2012. However, the police suspected the protestors of having intended to act in breach of the agreed terms, and on 5 May 2012 the prosecutor’s office issued the organisers with a warning in this respect. At the same time, the police developed a detailed security plan providing for the necessary security measures (see paragraphs 16 et seq. above).
- The Government further alleged that the disorder at Bolotnaya Square had occurred when some of the organisers and participants had refused to follow the agreed plan and had attempted to march outside the agreed area. They disregarded the police instructions to proceed to the designated venue at Bolotnaya embankment, even though it was accessible, and sat on the ground causing scuffles and disorder. According to the Government, two State Duma deputies, the Ombudsman of the Russian Federation and a member of the Civic Chamber of the Russian Federation had supported the police demands and tried to convince the protestors to follow the route, to no avail. Then, at 6 p.m. one of the organisers, acting at the request of the police, declared the early closure of the meeting; from 5.58 p.m. to 7 p.m. some of the protestors attempted to break the police cordon and threw various objects at the police. From 6 p.m. to 9 p.m. the police gradually forced the protestors to leave and arrested those showing the most active resistance. The Government considered that the intervention of the police had been justified since the assembly had ceased to be «peaceful» within the meaning of Article 11 of the Convention. In dispersing the protestors, the police had not resorted to excessive force: only police truncheons had been used; only the most aggressive perpetrators had been targeted; and no tear gas or smoke bombs had been deployed.
- The Government further affirmed that the circumstances at issue had been subject to a large-scale domestic inquiry, which had resulted in the prosecution and criminal conviction of the organisers for mass disorder (see paragraph 63 above) and of those who had committed violent acts against the police (see paragraphs 53 — 60 and 65 above). In addition, the Government referred to two decisions refusing to open a criminal investigation into alleged police brutality (see paragraphs 52 and 61 above). They considered that overall the establishment of the facts and their assessment by the domestic investigative and judicial authorities had been thorough and correct.
- As regards the particular circumstances of the case, the Government alleged that the applicant had incurred sanctions for failing to obey police orders to leave the site of the public assembly at the end of the authorised meeting. They maintained that he had been arrested at 8.30 p.m. and taken to the police station, where he had been detained pending the administrative proceedings and subsequently convicted of failure to comply with a lawful police order, an offence under Article 19.3 of the Code of Administrative Offences.
- The Government argued that the charges brought against the applicant had stemmed from a specific act of disobedience committed after the dispersal of the rally, and in any event after the expiry of the authorised time slot, rather than from his disagreement with the decision to terminate the assembly prematurely. They considered that there had been no interference with the exercise of the applicant’s right to peaceful assembly and that in any event the penalty imposed on him, fifteen days’ detention, had not been disproportionate because he had been previously convicted of a similar offence.
- The Government concluded that both the general measures taken in relation to the assembly as a whole and the individual measures taken against the applicant personally had been justified under Article 11 § 2 of the Convention. They considered that they had complied with domestic law, were necessary «for the prevention of disorder or crime» and «for the protection of the rights and freedoms of others» and remained strictly proportionate.
(b) The applicant
- The applicant maintained that he had been prevented from taking part in an authorised public assembly. First, he argued that the heavy-handed crowd-control measures had caused tension between the protestors and the police, resulting in some isolated confrontations which had been used as a pretext to terminate the meeting and to disperse it. Secondly, he argued that the termination of the meeting had not been clearly announced and that, owing to the general confusion, he had remained at the site of the meeting until his arrest. He contested having committed the act of disobedience imputed to him.
- As regards the general measures, the applicant first pointed out that the restrictions set out in the police security plan were not aimed at ensuring the peaceful conduct of the assembly, but at limiting and suppressing it. Secondly, he argued that the authorities had unilaterally altered the original meeting layout without informing the organisers or the public. He considered that the restriction of the area had had no purpose other than to prevent the hypothesis that tents might be erected in the park. Rather than serving to prevent public disorder, that restriction had created a bottle-neck at the entrance to the meeting venue and had caused tension resulting in a spontaneous sit-in by a small number of participants, including organisers. Furthermore, as the tension had built up, the authorities had failed to communicate with the organisers and to facilitate peaceful co-operation.
- The applicant further alleged that the authorities had failed to effectively inform the demonstrators of the termination of the meeting and of the order to disperse. He had been unaware of the decision to end the assembly and it had not been obvious to him, since he had not seen any clashes. He pointed out that under the domestic law the police were required to suspend the assembly first and to give the organisers time to remedy any breach before they could terminate it. In any event, he denied that the assembly had ceased to be peaceful, despite numerous incidents of confrontation with the police. No confrontations had taken place within the authorised perimeter in front of the stage. Overall, he considered that the response by the police had been uncoordinated and disproportionate and that it had had the effect of escalating the confrontation rather than diffusing it. The immense number of police officers and extensive crowd-control resources deployed at the site of the assembly should have allowed the authorities to ensure the peaceful continuation of the meeting, but they chose to close it instead. The applicant relied on the expert report (see paragraph 49 et seq. above) in support of his allegations.
- As regards his own arrest, the applicant claimed that he had been a peaceful participant in an authorised public assembly. He submitted that he had been arrested at 7 p.m., still within the hours of the authorised assembly, contrary to the Government’s claim, as the police were mopping up the scene of the rally after its early closure; prior to his arrest the police gave him no warning and no order which he could have disobeyed; he was not obstructing the traffic since it was still suspended for the assembly, and was not committing any objectionable acts. He considered that he had been arrested merely for his presence at the site of the rally simply to discourage him and others from participating in opposition rallies. He further complained that the domestic courts had taken no account of his arguments and exonerating evidence and had imposed the most severe penalty possible. Overall, he contested his arrest and the ensuing conviction as unlawful, lacking a legitimate aim and not necessary in a democratic society, thus in violation of Article 11 of the Convention.
- The Court’s assessment
(a) General principles
- The right to freedom of assembly, one of the foundations of a democratic society, is subject to a number of exceptions which must be narrowly interpreted and the necessity for any restrictions must be convincingly established. When examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered «necessary in a democratic society» the Contracting States enjoy a certain but not unlimited margin of appreciation (see Barraco v. France, no. 31684/05, § 42, 5 March 2009). It is, in any event, for the European Court to give a final ruling on the restriction’s compatibility with the Convention and this is to be done by assessing the circumstances of a particular case (see Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, 11 October 2001, and Galstyan v. Armenia, no. 26986/03, § 114, 15 November 2007).
- When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they took. This does not mean that it has to confine itself to ascertaining whether the State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine, after having established that it pursued a «legitimate aim», whether it answered a «pressing social need» and, in particular, whether it was proportionate to that aim and whether the reasons adduced by the national authorities to justify it were «relevant and sufficient» (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001; Achouguian v. Armenia, no. 33268/03, § 89, 17 July 2008; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008; Barraco, cited above, § 42; and Kasparov and Others v. Russia, no. 21613/07, § 86, 3 October 2013). In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Rai and Evans (dec.), nos. 26258/07 and 26255/07, 17 November 2009; and and Others v. Turkey, no. 8029/07, § 75, 18 June 2013; see also Gerger v. Turkey [GC], no. 24919/94, § 46, 8 July 1999; and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports of Judgments and Decisions 1998-I).
- The protection of opinions and the freedom to express them, as secured by Article 10, is one of the objectives of freedom of assembly as enshrined in Article 11. A balance must always be struck between the legitimate aims listed in Article 11 § 2 and the right to free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places (see Ezelin v. France, 26 April 1991, §§ 37 and 52, Series A no. 202; Barraco, cited above, § 27; v. Hungary, no. 40721/08, § 41, 24 July 2012; and Taranenko v. Russia, no. 19554/05, § 65, 15 May 2014).
- The Contracting States must refrain from applying unreasonable indirect restrictions upon the right to assemble peacefully. In addition, there may be positive obligations to secure the effective enjoyment of this right (see Oya Ataman v. Turkey, no. 74552/01, § 36, ECHR 2006-XIII). The States have a duty to take reasonable and appropriate measures with regard to lawful demonstrations to ensure their peaceful conduct and the safety of all citizens, although they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used. In this area the obligation they enter into under Article 11 of the Convention is an obligation as to measures to be taken and not as to results to be achieved (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 251, ECHR 2011 (extracts); see also Plattform «das Leben» v. Austria, 21 June 1988, § 34, Series A no. 139; Oya Ataman, cited above, § 35; and Protopapa v. Turkey, no. 16084/90, § 108, 24 February 2009). It is incumbent on the State, in particular, to take the appropriate preventive security measures to guarantee the smooth conduct of a public event, such as ensuring the presence of first-aid services at the site of demonstrations and regulating traffic so as to minimise its disruption (see Oya Ataman, cited above, § 39, and and Others v. Lithuania [GC], no. 37553/05, §§ 158 — 60, 15 October 2015).
- It is important for the public authorities, moreover, to show a certain degree of tolerance towards peaceful gatherings, even unlawful ones, if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (ibid., §§ 37 and 39). The limits of tolerance expected towards an irregular assembly depend on the specific circumstances, including the duration and the extent of public disturbance caused by it, and on whether its participants had been given sufficient opportunity to manifest their views (see Cisse v. France, no. 51346/99, §§ 51 — 52, ECHR 2002-III; v. Hungary, no. 10346/05, §§ 42 — 43, 7 October 2008; Navalnyy and Yashin v. Russia, no. 76204/11, §§ 63 — 64, 4 December 2014; and , cited above, §§ 155 — 17 and 176 — 77).
- On the other hand, where demonstrators engage in acts of violence, interferences with the right to freedom of assembly are in principle justified for the prevention of disorder or crime and for the protection of the rights and freedoms of others (see Giuliani and Gaggio, cited above, § 251). The guarantees of Article 11 of the Convention do not apply to assemblies where the organisers and participants have violent intentions, incite to violence or otherwise deny the foundations of a «democratic society» (see Stankov and the United Macedonian Organization Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 77, ECHR 2001-IX; the United Macedonian Organization Ilinden and Ivanov v. Bulgaria, no. 44079/98, § 99, 20 October 2005; Sergey Kuznetsov v. Russia, no. 10877/04, § 45, 23 October 2008; Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, § 80, 21 October 2010; , cited above, § 37, 24 July 2012; and and Others, cited above, § 70). The burden of proving the violent intentions of the organisers of a demonstration lies with the authorities (see Christian Democratic People’s Party v. Moldova (no. 2), no. 25196/04, § 23, 2 February 2010).
- In any event, an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour (see Ezelin, cited above, § 53; Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004; and Primov and Others v. Russia, no. 17391/06, § 155, 12 June 2014). Even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not as such fall outside the scope of Article 11 § 1 of the Convention, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that provision (see Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 92, ECHR 2011).
(b) Application of these principles in the present case
- The applicant alleged a violation of his right to freedom of peaceful assembly, referring to the measures taken as regards the assembly in general and the specific measures taken against him personally. He alleged that the crowd-control measures implemented by the police at Bolotnaya Square had in effect provoked a confrontation between the protestors and the police, and that the police had then used the incident as a pretext for the early termination of the meeting and its dispersal. He claimed, moreover, that the authorities had intended from the outset to suppress the rally in order to discourage street protest and political dissent. He argued that his own arrest at the site of the rally, his pre-trial detention and the ensuing conviction for an administrative offence had been arbitrary and unnecessary.
- The Court observes that although the first part of the applicant’s allegations concern a somewhat general situation, it is clear that those general events have directly affected the applicant’s individual state of affairs and his rights guaranteed by Article 11 of the Convention. He arrived at the site of the public event with the intention of taking part in the meeting; however, this became impossible because the meeting was disrupted and then cancelled, and the main speakers were arrested. This complaint is distinct from the grievances about the applicant’s own subsequent arrest and detention, also lodged under Article 11 of the Convention. The Court has thus identified two issues in the applicant’s complaints and it will consider each of them separately.
(i) Obligation to ensure the peaceful conduct of the assembly
- The Court observes that applying security measures in the course of a public assembly constitutes, on one hand, a restriction on the exercise of the right to freedom of assembly, but, on the other hand, it is also a part of the authorities’ positive obligations to ensure the peaceful conduct of the assembly and the safety of all citizens (see the case-law cited in paragraph 96 above). It will begin its analysis with the question whether the authorities took all reasonable measures to ensure that the meeting at Bolotnaya Square was conducted peacefully. The Court observes that the parties have agreed on the essential circumstances of the standoff between the assembly leaders and the police at Malyy Kamennyy bridge, followed by a violent confrontation, the termination of the meeting and its dispersal. They agree on the time-line and the sequence of events as established by the domestic courts, but differ as to their perception, causal links and legal interpretation. They disagree, in particular, on whether the authorised venue layout was altered, on whether the authorities’ conduct caused, or at least compounded the onset of the confrontations, and on whether the scale of the disorder justified the closure of the event and its dispersal by the police.
- According to the official version, on 6 May 2012 mass disorder took place at Bolotnaya Square. The Government contended that on that day the assembly leaders had intended to take the march outside the designated area, to set up a protest campsite and, possibly, to hold an unauthorised assembly near the Kremlin. When they were barred by the police cordon, the organisers called for a sit-in and encouraged assaults on the police cordon. In those circumstances the police had no choice but to terminate the assembly, which had already been irrevocably disrupted, and to restrain the active offenders.
- The assembly leaders, on the contrary, accused the authorities of having framed the demonstration so that a confrontation would become inevitable and so that a peaceful rally could be portrayed as an aggressive mob warranting a resolute crackdown. They denied that it had been their original intention to go outside the designated meeting area; conversely, the sit-in was a reaction to the authorities’ unilateral change of the meeting layout. The protestors sat on the ground in an attempt to negotiate a passage through the park at Bolotnaya Square, which they considered to be a part of the agreed meeting venue, but the authorities showed no willingness to negotiate or even to communicate with them. From this point of view, the ensuing breaking of the cordon and confrontations were a consequence of the authorities’ uncooperative conduct. In any event, the applicant contended that despite some isolated rowdy incidents, the assembly had remained generally peaceful and there had been no cause for terminating or dispersing it.
- It transpires from the materials submitted in this case that safeguarding public order on 6 May 2012 was an elaborate security operation. The Court observes, in particular, that the security plan provided for a complex array of security measures to be taken in the whole city of Moscow on that day, of which a significant part was devoted to the public assembly at Bolotnaya Square (see paragraph 16 et seq. above). The unprecedented scale of the police presence and of the equipment deployed for this event was noted in the media reports referred to by the parties, by the Expert Commission and the witnesses in the criminal proceedings (see paragraphs 51 and 57 above).
- It is common ground that the enhanced security was due to anticipated unauthorised street protests. The authorities had closely monitored the activities of the opposition leaders in the period preceding 6 May 2012 by accessing open sources and by means of secret surveillance. They had suspected the opposition activists of plotting a popular uprising, starting with unlawful public assemblies and setting up campsites supposedly inspired by the «Occupy» movement and similar to the «Maidan» protest in Ukraine (see the testimonies of Mr Deynichenko, Mr Zdorenko, Mr Makhonin and Ms Volondina, paragraph 63 above). It was for fear of such a campsite being erected in the park of Bolotnaya Square that the police had decided to obstruct access to it, restricting the assembly venue to the embankment where tents could not be easily set up.
- The Court notes that although Article 11 of the Convention does not guarantee a right to set up a campsite at a location of one’s choice, such temporary installations may in certain circumstances constitute a form of political expression, the restrictions of which must comply with the requirements of Article 10 § 2 of the Convention (see examples of other forms of expression of opinion in Steel and Others v. the United Kingdom, 23 September 1998, § 92, Reports 1998-VII; Drieman and Others v. Norway (dec), no. 33678/96, 4 May 2000; and Taranenko, cited above, §§ 70 — 71). It reiterates that in any event in this context Article 10 of the Convention is to be regarded as a lex generalis in relation to Article 11, a lex specialis, and the complaint under Article 11 must in these circumstance be considered in the light of Article 10 (see Ezelin, cited above, §§ 35 and 37). The Court will take this into account when assessing the proportionality of the measures taken in response to the threat posed by the assembly’s suspected hidden agenda (see paragraph 139 below).
- Before deciding on the role of undeclared goals, whether the organisers’ or the authorities’, the Court will comment on the formal reasons for the decisions taken when the assembly was being organised. On the face of it, the decision to close the park to the rally does not appear in itself hostile or underhand the organisers, given that the embankment had sufficient capacity to accommodate the assembly, even with a significant margin for exceeding the expected number of participants. According to the statement of the Moscow Regional Department of Security (see paragraph 63 above), the maximum capacity of Bolotnaya embankment was about 26,000 people. It was therefore large enough not only for the originally declared 5,000 participants, or the officially recorded turnout of 8,000, but even for the organisers’ retrospective estimate of 25,000. However, the organisers objected not only to the lack of access to the park, but, above all, to discovering a last-minute alteration of the venue layout, which allegedly led to misunderstanding and disruption of the assembly.
- The organisers, the municipal authorities and the police had discussed the layout of the assembly venue during the working meeting of 4 May 2012. The assembly organisers claimed that it had been expressly agreed at the working meeting to replicate on 6 May 2012 the route and the format of the assembly held on 4 February 2012. Their testimonies to that effect have been neither confirmed nor denied by the officials who were present at the working meeting. When cross-examined, Mr Deynichenko and Mr Sharapov stated that the inclusion of the park had not been requested or discussed. Assuming that the latter was true and no express agreement had been reached as regards the park, the Court nevertheless considers that it was not entirely unreasonable on the part of the organisers to perceive it as included by default. First, the official boundary of Bolotnaya Square comprised the park, as confirmed by expert witnesses N. and M., as well as the head of Yakimanka District Municipality of Moscow. Secondly, the park had been included in the meeting venue on the previous occasion, a fact admitted by the official sources, in particular witness Mr Sharapov (see the testimonies of all aforementioned witnesses quoted in paragraph 63 above).
- It is common ground that no map was produced at the working meeting and no on-the-spot reconnaissance was carried out because of the time constraints. After the working meeting, the police developed the security plan and drew up their own map, which excluded the park. It is not clear whether their map was based on their perception of the discussion at the working meeting, or whether they decided on the park’s closure afterwards, taking into account the expected number of participants and the potential public order issues. In any event, both the security plan and the maps used by the police forces remained police internal documents and were not shared with the organisers (see the Moscow Interior Department’s reply to the Investigative Committee, paragraph 48 above, and the Moscow City Court’s judgment in Mr Udaltsov’s and Mr Razvozzhayev’s case, paragraph 63 above).
- At the same time, a different map of the assembly venue was published on the police official website, which included the park. The provenance of the map might have been unofficial, as established by the Moscow City Court, but even if it was based on the information submitted by the organisers and not by the police’s own services, its publication by the police press office implied some sort of official endorsement (see paragraphs 48 and 63 above). Moreover, the fact that the map had been in the public domain for at least twenty-four hours before the assembly allowed the officers responsible for the security of the meeting to spot any errors and to inform the organisers and the public accordingly. Given the high priority attributed to policing this event and the thoroughness with which the security forces followed every piece of information concerning the protest activity, it was unlikely that the published map had inadvertently slipped their attention.
- In view of the foregoing, the Court concludes that there was at least a tacit, if not an express, agreement that the park at Bolotnaya Square would form part of the meeting venue on 6 May 2012.
- With this finding in mind, the Court turns to the next contested point: the significance of the sit-in at Malyy Kamennyy bridge. The Court will examine the reasons for its occurrence, the extent to which it disrupted the assembly and the authorities’ conduct in this situation.
- The Court observes that during the domestic proceedings two conflicting explanations were given for the sit-in. The assembly leaders and participants maintained that it was a reaction to the unexpected change of the venue layout and an attempt to negotiate a passage through the park. This reason is in principle consistent with the Court’s finding above that the placement of the police cordon was different from that expected by the assembly organisers (see paragraph 112 above).
- However, certain police officials maintained that the sit-in leaders had demanded access to Bolshoy Kamenny bridge towards the Kremlin, an ultimatum that could not be granted (see Mr Deynichenko’s report of 6 May 2012, paragraph 43 above, and his testimonies, paragraph 63 above; and the decision of the Investigative Committee of 20 March 2013, paragraph 52 above). It is impossible to establish whether any such request was indeed expressed because no witnesses other than the police heard it. On the other hand, a number of witnesses unrelated to the conflicting parties confirmed that the sit-in leaders had demanded that the police move the cordon back so as to allow access to the park. The independent observers from the Ombudsman’s office who had been involved in the negotiations explained that the protestors, faced with the narrowed-down passage, had demanded that it be widened. Moreover, they named the police official, colonel Biryukov, to whom the Ombudsman had passed that demand (see the testimonies of Ms Mirza and Mr Vasiliev, paragraphs 57 and 59 above). Likewise, the assembly observer from the Civic Chamber of the Russian Federation testified that no demands to open the passage to the Kremlin had been made (see the testimonies of Mr Svanidze, paragraph 58 above). Similar testimonies were also given by the two State Duma deputies, Mr G. Gudkov and Mr D. Gudkov, who had also attempted to mediate in the conflict; they specified that the sit-in leaders had insisted on the cordon being moved back and had asked for access to the park.
- On the basis of this evidence the Court finds that the sit-in leaders expressed the demand to have the park opened up for the assembly and that they made that demand known to the police.
- As to the nature of the sit-in and the degree of disturbance it caused, the Court notes the following. It appears from the video footage submitted by the parties, and it is confirmed by the witness accounts, that the sit-in narrowed the passage to Bolotnaya Square even further and that it caused some confusion and impatience among the demonstrators aspiring to reach the meeting venue. Nevertheless, the same sources made it clear that with only twenty to fifty people sitting on the ground, the sit-in remained localised and left sufficient space for those wishing to pass. It is beyond doubt that the sit-in was strictly peaceful. However, it required the authorities’ intervention — and those taking part in it openly invited it — since the cordon could not be moved without the authorities’ consent and relevant orders. The question therefore arises whether at this stage the authorities took all reasonable steps to preserve the assembly’s peaceful character.
- Having received the request to move the cordon back, the police commanders had to accept or reject it, or seek a compromise solution. It is not for the Court to indicate what manoeuvre was the most appropriate one for the police cordon in the circumstances. The fact that the police were exercising caution against the park being taken over by a campsite, or their unwillingness to allow the protestors to proceed in the direction of the Kremlin, or both, might justify the refusal to allow access to the park, given that in any event the assembly had sufficient space for a meeting. Crucially, whatever course of action the police deemed correct, they had to engage with the sit-in leaders in order to communicate their position openly, clearly and promptly.
- The standoff near the cordon lasted for about forty-five to fifty minutes, a considerable period of time. From about 5 p.m. to 5.15 p.m. the organisers were addressing the police officers forming the cordon, but it appears that there were no senior police officers among them competent to discuss those issues; those senior officers were apparently watching the event from some distance behind the cordon. The negotiators got involved at about 5.15 p.m. and the talks continued until at least 5.45 p.m. The police chose first to contact the protest leaders through an intermediary, the Ombudsman, who had to tell them to stand up and go towards the stage. He passed the message and returned to the police the protestors’ demand to open the passage to the park. It is unclear whether, after that initial exchange, the police replied to the protestors and, if so, whether the Ombudsman managed to transmit the reply. However, at the same time two State Duma deputies, Mr G. Gudkov and Mr D. Gudkov, were in concurrent negotiations and had allegedly reached an agreement that the cordon could in principle be moved.