CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 novembre 2018

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color:#000000 }       THIRD SECTION             CASE OF ALEKSEYEV AND OTHERS v. RUSSIA   (Applications nos. 14988/09 and 50 others – see list appended)         JUDGMENT         STRASBOURG       27 November 2018     FINAL   06/05/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Alekseyev and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Vincent A. De Gaetano, President,   Helen Keller,   Dmitry Dedov,   Alena Poláčková,   Georgios A. Serghides,   Jolien Schukking,   María Elósegui, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 6 November 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in fifty-one applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Russian nationals (“the applicants”). The application numbers and the dates on which they were lodged with the Court, as well as the applicants’ full names and dates of birth, are listed in the Appendix. 2.     The applicants were represented by Mr Daci and Mr Cron, lawyers practicing in Geneva. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3.     The applicants complained of the ban on holding lesbian, gay, bisexual and transgender (LGBT) public events imposed by the domestic authorities and of a lack of effective remedies in that respect. They also alleged that the authorities treated in a discriminatory manner their requests to be permitted to hold these events. 4.     On 15 January 2016 the applications were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The facts of the cases, as submitted by the parties, may be summarised as follows. 6.     In 2009-14 the applicants lodged notices of the LGBT public assemblies indicated in the Appendix. In each instance the local authorities refused to approve the dates and locations proposed by the applicants, who challenged these decisions in the domestic courts under Chapter 25 of the Code of Civil Procedure. The domestic courts upheld the decisions of the local authorities. The judicial decisions in every case were taken after the respective dates of the originally proposed assemblies. The dates of the authorities’ refusals and the final domestic decisions are indicated in the Appendix. II.     RELEVANT DOMESTIC LAW AND PRACTICE 7.     For the relevant domestic law and practice, as well as international and comparative material, see Lashmankin and Others v. Russia , nos.   57818/09 and 14 others, §§   216 ‑ 88 and §§ 313-24, 7   February 2017, and Alekseyev v. Russia, nos. 4916/07 and 2 others, §§ 49-52, 21 October 2010. THE LAW I.     JOINDER OF THE APPLICATIONS 8.     Given their similar factual and legal background, the Court decides that the applications should be joined, pursuant to Rule 42 § 1 of the Rules of Court. II.     ALLEGED VIOLATION OF ARTICLES 11, 13 AND 14 OF THE CONVENTION 9.     The applicants complained of the ban on holding LGBT assemblies and of the discriminatory manner in which the national authorities treated their applications to hold these events. They also complained of the absence of effective domestic remedies in respect of the alleged violations of their right to freedom of assembly. They relied, expressly or in substance, on Articles   11, 13 and   14 of the Convention. The relevant provisions read as follows: Article   11 “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. 2.     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.” Article   13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article   14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A.     Admissibility 10.     The Court observes that the Government did not raise the issue of the applicants’ compliance with the six-month rule. It has previously found that the application of that rule should not be set aside solely because the Government have not made a preliminary objection based on it (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006 ‑ III, and Walker v.   the   United Kingdom (dec.), no. 34979/97, ECHR 2000 ‑ I). The Court therefore considers it appropriate to address this issue in the present case. 11.     The Court reiterates that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It also protects the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. It marks out the temporal limits of supervision carried out by the Court and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see Sabri Güneş v. Turkey [GC], no.   27396/06, §§ 39-40, 29 June 2012). 12.     In assessing whether an applicant has complied with Article 35 § 1 of the Convention, it is important to bear in mind that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. Thus, where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures complained of. If an applicant first avails himself of a domestic remedy and only subsequently becomes (or should have become) aware of the circumstances which render that remedy ineffective, it might be appropriate to calculate the six-month period from the date on which the applicant became (or ought to have become) aware of those circumstances. The pursuit of remedies which do not satisfy the requirements of Article   35   §   1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule. It follows that if an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that appeal cannot be taken into account for the calculation of the six-month period (see Jeronovičs v. Latvia [GC], no.   44898/10, § 75, ECHR 2016, and the cases cited therein). 13.     The Court found in Alekseyev (cited above, §   99) that Russian laws, as in force at the material time, specified time-limits for the organisers to give notice of a public event. By contrast, the authorities were not obliged by any legally binding time frame to give their final decisions before the planned date of the public event. The Court therefore concluded that the judicial remedy available to the organisers of public events, which was of a post-hoc character, could not provide adequate redress in respect of the alleged violations of Article 11 of the Convention. It consequently found a violation of Article 13 owing to the absence of an effective domestic remedy. In the case of Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§   356-60, 7 February 2017) the Court confirmed this approach. It also upheld the additional argument put forward by the applicants challenging the effectiveness of that remedy and found it to be ineffective because the scope of the judicial review was limited to examining the lawfulness of the restriction, and did not include any assessment of its “necessity” and “proportionality”. 14.     Turning to the circumstances of the present cases, the Court observes that the applicants complain about the decisions of local authorities to refuse to approve the dates and the venues of various LGBT public events. It furthermore notes that in most cases the applicants challenged these decisions in the domestic courts after the dates of the planned events, as indicated in the Appendix. In their applications, which were lodged in 2012 ‑ 2015, all the applicants relied extensively on the judgment in Alekseyev and formulated their complaint under Article 11 in identical terms. Hence, their complaints about the discriminatory ban on holding LGBT public events should have been introduced to the Court within six months, calculated from the date of the administrative decision not to approve each respective event. 15.     The Court furthermore notes that in the instances when the applicants intended to hold LGBT public events in cities other than Moscow, they sometimes received the local authorities’ decisions refusing to approve those events by post on unidentified dates. However, the applicants had already been aware of those refusals by the time of their lodging their respective complaints to the domestic courts. In those cases their applications should have been introduced to the Court within six months of the receipt of the refusal in question, and in any even no later than the date of the lodging the respective complaint with the court. 16.     It follows that the applications, and in some cases parts of the applications (marked with an asterisk in the Appendix), are lodged out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention. By contrast, where the applicants have lodged their respective applications within six months of the date of the administrative refusal to approve an event or the date on which they learned of such a refusal and challenged it in the domestic courts, they have duly complied with the six ‑ month rule. The Court notes that the complaints set out in the latter applications are not manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. This part of the case must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 17.     The Government submitted that the notification procedure established by the Russian law did not encroach upon the essence of the right to freedom of peaceful assembly under Article 11 of the Convention. In their view, local authorities had not banned any public events organised by the applicants but had warned them of the consequences of breaking the law by holding such events. Moreover, in some cases the authorities had suggested changing the venue of the events. In doing so, local authorities had protected the interests of minors, which could have been breached by the “promotion of homosexuality in public places”. The Government essentially repeated their submissions in Bayev and Others v. Russia (nos.   67667/09 and 2 others, § 47, ECHR 2017) in that respect. They therefore considered that the impugned measures had been lawful and proportionate to the legitimate aim of the protection of rights and freedoms of minors, their parents and others, and had not entailed a violation of Article 11 or Article 14 (in conjunction with Article 11). Lastly, the Government’s submissions as regards the applicants’ complaint under Article 13 were essentially the same as in Lashmankin and Others (cited   above, §§ 335-41). 18.     The applicants’ submissions were essentially the same as those in the case of Alekseyev (cited above, §§ 64-67, 94 and 105). However, they agreed that after the entry into force of the Russian federal law outlawing the promotion of homosexual relationships to minors in July 2013, the ban on LGBT public events had become lawful. In any case, the blanket refusals by local authorities on repeated occasions, without considering any alternative venues for the assemblies, had not been proportionate to the legitimate aims invoked by the Government. The applicants further stressed that they had had no effective remedies in respect of their complaints under Article 11 and had suffered discrimination on the basis of their sexual orientation, in breach of Article 14 of the Convention. They relied on the Court’s findings in Alekseyev (cited above, §§ 99-100 and 109-10) in that regard. 2.     The Court’s assessment 19.     The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v.   Lithuania [GC], no.   37553/05, ECHR 2015, with further references) and the proportionality of interference with it (see Bączkowski and Others v.   Poland , no.   1543/06, §§   61-64, 3   May 2007). It also refers to its case-law concerning discrimination on the grounds of sexual orientation (see Kozak v.   Poland , no.   13102/02, 2   March 2010). 20 .     In the leading case of Alekseyev (cited above), the Court has already found a violation in respect of issues similar to those which the present case concerns. 21.     Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the merits of these complaints. Having regard to its case ‑ law on the subject, the Court considers that in the instant case the ban on holding LGBT public assemblies imposed by the domestic authorities did not correspond to a pressing social need and was thus not necessary in a democratic society. The Court also finds that the applicants suffered unjustified discrimination on the grounds of sexual orientation, that that discrimination was incompatible with the standards of the Convention, and that they were denied an effective domestic remedy in respect of their complaints concerning a breach of their freedom of assembly. 22 .     There has accordingly been a violation of Article 11, Article 13 (in conjunction with Article 11) and Article 14 (in conjunction with Article 11) of the Convention in respect of each applicant. III.     APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION 23.     The relevant parts of Articles 41 and 46 of the Convention provide: Article 41 “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Article 46 “1.     The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2.     The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” A.     Damage 24.     All applicants claimed between 5,000 and 500,000 euros (EUR) each in respect of non-pecuniary damage. The first applicant (Mr Alekseyev) also claimed 10,000 Russian roubles (RUB – approximately EUR 141) in respect of pecuniary damage on account of the fine payable by him as an administrative penalty. He furthermore claimed RUB 30,664 (approximately EUR   433) in that respect for travel and postal expenses, which will be examined in the costs and expenses part below (see paragraphs 30-32). 25.     The Government submitted that the claims for non-pecuniary damage were excessive and unreasonable. 26.     As regards the first applicant’s claim for compensation for the damage constituted by the administrative fine, the Court observes that no direct causal link has been established between the violation found and the fine the applicant paid following his conviction for the administrative offence (see, by contrast, Novikova and Others v. Russia , nos. 25501/07 and 4 others, § 232, 26 April 2016). The Court therefore dismisses the claim under this head. 27 .     With regard to the applicants’ claims for compensation for non-pecuniary damage, the Court observes that the violations of the Convention found in the present case are similar to those previously found in the judgment of Alekseyev (cited above). It reiterates that under Article 46 the Contracting Parties have undertaken to abide by the final judgments of the Court in cases to which they are parties, execution being supervised by the Committee of Ministers. At the date of adoption of the present judgment, the Committee of Ministers is continuing its supervision of the pending execution of the judgment in Alekseyev , which it classified as suitable for the enhanced supervision procedure. Most recently, at the 1273rd meeting of the Committee of Ministers (December 2016, DH) a decision was adopted (CM/Del/Dec(2016)1273/H46-23) whereby the Committee urged the Russian authorities to adopt all further necessary measures to ensure that the practice of local authorities and the courts develops so as to ensure the respect of the rights to freedom of assembly and to be protected against discrimination, and invited the Russian authorities to continue action to address effectively the outstanding questions with a view to achieving concrete results.   The Court notes that in the years which have passed since the Alekseyev judgment (cited above) no such measures have yet been brought forward by the Government. 28.     In this connection, the Court emphasises the obligation on States to perform treaties in good faith, as noted, in particular, in the third paragraph of the preamble and in Article 26 of the 1969 Vienna Convention on the Law of Treaties (see Verein gegen Tierfabriken Schweiz (VgT) v.   Switzerland (no. 2) [GC], no. 32772/02, § 37, ECHR 2009). Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v.   Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 VIII). In exercising their choice of general and individual measures, the respondent State is required to provide the Committee of Ministers with detailed, up ‑ to ‑ date information on developments in the process of executing the judgment that is binding on them (see Verein gegen Tierfabriken Schweiz (VgT) , cited   above, §§ 35 and 87, citing Rule 6 of the Committee of Ministers’ Rules for the supervision of the execution of judgments and of the terms of friendly settlements). Given the variety of means to achieve this aim and the nature of the issues involved, the Committee of Ministers is better placed than the Court to assess the specific measures to be taken (see Kudeshkina v. Russia (no. 2) (dec.), no. 28727/11, §§ 74-81, 17 February 2015). For its part, the Court finds it appropriate to emphasise that the nature of the violations found in Alekseyev (cited above) and the extent of the recurring problem at issue require sustained and long-term efforts in the adoption of general measures, in order to address issues under Articles 11 and 14 in particular. 29.     While the Court accepts that the manner in which the national authorities treated the applications to hold LGBT public events and the absence of effective domestic remedies may give rise to feelings of frustration, it nonetheless concludes that the finding of a violation, triggering the respondent State’s obligation to take the above-mentioned measures under its domestic legal system, may therefore be regarded as constituting the most appropriate means of redress (see Norris v. Ireland , 26   October 1988, § 50, Series A no.   142; Christine Goodwin v.   the   United   Kingdom [GC], no. 28957/95, §   120, ECHR 2002 ‑ VI; and S.   and Marper v.   the United Kingdom [GC], nos.   30562/04 and 30566/04, §   134, ECHR   2008). The Court consequently rejects the applicants’ claims for compensation for non-pecuniary damage. B.     Costs and expenses 30 .     Mr Alekseyev submitted the following claims in respect of costs and expenses: - RUB 30,664 for travel and postal expenses in Russia, including three train tickets from Moscow to Kostroma and Tambov, and three return airplane tickets from Moscow to Arkhangelsk, plus the adjustment of this amount for inflation; - RUB 80,304 (approximately EUR 1,135) and 271 Swiss francs (CHF ‑ approximately EUR 248) for court fees and postal expenses incurred before the domestic courts and the Court, plus the adjustment of this amount for inflation; - CHF 719,707 (approximately EUR 660,094) for legal fees incurred in the domestic proceedings and in the proceedings before the Court. 31.     As regards the amount of RUB 30,664 claimed for travel and postal expenses, the Government considered that no compensation could be awarded for expenses which would have been incurred irrespective of whether the proceedings in issue had violated the Convention or not. As for the court fees and postal expenses, the Government stated that only compensation for the expenses incurred in respect of mail sent to the Court could be awarded to the applicants. Lastly, the Government submitted that the applicants had failed to provide copies of any contract for legal services or any receipts or payment orders confirming that these expenses had actually been incurred. Moreover, the amount in legal fees claimed did not correspond to the principle of proportionality and adequacy, as the circumstances of all the cases were absolutely identical. 32 .     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court emphasises that the prevailing situation has given rise and continues to give rise to violations similar to those in the present case and in Alekseyev in respect of every person who is willing to organise an LGBT public event. It has declined to award just satisfaction for non ‑ pecuniary damage in respect of such violations (see § 27 above). The Court therefore considers that there are no exceptional circumstances which would justify making any awards for costs and expenses in follow-up cases of this type (see, mutatis mutandis , Greens and M.T. v. the United Kingdom , nos. 60041/08 and 60054/08, § 120, ECHR 2010 (extracts)). Moreover, the applicant submitted no documentary proof, such as legal-services contracts with his representatives, payment receipts or invoices, that he had a legally enforceable obligation to pay for the lawyers’ services or that he had in fact paid them (see, for example, Novikova and Others , cited above, § 236). Regard being had to these considerations, the Court rejects Mr Alekseyev’s claim for costs and expenses. FOR THESE REASONS, THE COURT 1.     Decides , unanimously, to join the applications;   2.     Declares , unanimously, the complaints complying with the six-month rule admissible and the remainder of the applications inadmissible;   3.     Holds , unanimously, that there has been a violation of Article 11 of the Convention;   4.     Holds , unanimously, that there has been a violation of Article 13 in conjunction with Article 11 of the Convention;   5.     Holds , unanimously, that there has been a violation of Article 14 in conjunction with Article 11 of the Convention;   6.     Holds , by six votes to one, that the finding of violations of Articles 11, 13 and 14 of the Convention constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;   7.     Dismisses , by six votes to one, the applicants’ claims for just satisfaction. Done in English, and notified in writing on 27 November 2018, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Stephen Phillips   Vincent A. De Gaetano   Registrar   President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a)     concurring opinion of Judge Dedov; (b)     partly dissenting opinion of Judge Keller. V.D.G. J.S.P. CONCURRING OPINION OF JUDGE DEDOV In the present judgment the Court observed with regret that no measures had been brought forward by the Government to implement the Court’s previous judgment in the leading case of Alekseyev v. Russia (nos. 4916/07 and 2 others, 21 October 2010). At the same time the Court found the same package of violations without providing any substantial reasoning (the ban on holding public assemblies did not correspond to a pressing social need and was not necessary in a democratic society; the applicants had suffered unjustified discrimination on the grounds of sexual orientation). It is obvious that all the participants, including the Court, were not flexible enough to find a compromise. The Court emphasised that the nature of the violations and the extent of the recurring problem required sustained and long-term efforts in the adoption of general measures in order to address the issues under Articles 11 and 14 of the Convention (see paragraph 28 of the judgment). However, it is difficult to devise any measures if the problem is not identified. First of all, in the leading case of Alekseyev , cited above, the Court disregarded the security and safety concerns   put forward by the Government in connection with Gay Pride parades. Later, as demonstrated in the case of Identoba and Others v. Georgia , no. 73235/12, 12 May 2015, it became clear that those concerns were real and needed to be addressed by the Court. In the case of Bayev and Others v. Russia (nos. 67667/09 and 2   others, 20 June 2017), the Court did not consider the fundamental rights and freedoms of parents and their children affected by the public debate on sexual orientation. Those deficiencies in the case-law created the impression that the promotion of homosexual relationships, especially to minors, could be considered an issue for public debate (see the applicants’ submissions in paragraph 18 of the judgment). I believe that compromise and social harmony could be found on the basis of mutual respect for human rights and, in particular, for the rights of minorities who do not seek to promote their personal way of life, but rather seek recognition that their civil rights should be equally respected and protected by the State. I am referring to the right to create family relationships that differ from the usual notion of a union between man and woman. The legal recognition of such partnerships could be the starting ‑ point for protecting all the other needs usually arising in relation to any family members. I voted together with the majority in the present case because some of the events organised by the applicants were devoted to the protection of their rights and not to the promotion of sexual relationships. PARTLY DISSENTING OPINION OF JUDGE KELLER 1.     To my regret, I am unable to agree with my colleagues on the matter of the application of Article 41 of the Convention in the present case. 2.     In paragraph 29 of the judgment, the Court holds that the finding of violations of Articles 11, 13 and 14 of the Convention constitutes sufficient just satisfaction for the non-pecuniary damage sustained by the applicants on the basis that, following such finding, the respondent State should adopt the appropriate general and/or individual measures to secure the right of freedom of assembly and protect the persons under its jurisdiction against discrimination, as required by Article 46 of the Convention. For the reasons set out below, I disagree with this decision and consider that an award of non-pecuniary damage to the applicants was called for in this case. A.     General measures and just satisfaction 1.     Individual assessment of each case – No automatic conclusion 3.     Under Article 41 of the Convention, the Court has the possibility to afford just satisfaction to the injured party. The principle with regard to damages is that the applicant should be placed, as far as possible, in the position in which he or she would have been had the violation not taken place, in other words, restitutio in integrum . 4.     The application of Article 41 of the Convention is dependent on the Court’s discretion and on the particular circumstances of the case. The wording of Article 41, which provides that the Court will only award such satisfaction as is considered to be “just” in the circumstances, and only “if necessary”, makes this clear. Moreover, where the Court finds that a monetary award in respect of non-pecuniary damage is necessary, it makes that assessment on an equitable basis. 5.     I thus believe that, when faced with a case arising out of a practice incompatible with the Convention at the national level, the sole fact that the Court considers that general measures are called for does not automatically imply that there is no need to afford just satisfaction to the injured party. The ex aequo et bono character of just satisfaction in my view excludes any automatic conclusion. All awards of just satisfaction have to be based on an assessment of the concrete circumstances of the case.   By contrast, the reasoning adopted by the majority under paragraph 29 prematurely restricts the scope for awarding compensation for non-pecuniary damage for systemic breaches of the Convention. 6.     In this regard, the Court has repeatedly awarded just satisfaction for non-pecuniary damage in addition to inviting the State to take general measures to address the root causes of the violation. For instance, in Ališić   and others [GC] (n o 60642/08), the Grand Chamber adopted a pilot-judgment procedure and suggested general measures following violations of Article 13 of the Convention and of Article 1 of Protocol No. 1, while awarding non-pecuniary damages to the applicants. Similarly, in the recent judgment in the case of Voynov v. Russia (no. 39747/10, 3 July 2018), which also concerned a repetitive case arising out of a structural problem – that is to say the placing of prisoners in detention facilities far from their family home – the Court made an award of non-pecuniary damage and costs as well as of expenses. 7.     Likewise, in Sargsyan v. Azerbaijan [GC] (no. 40167/06), Maestri v.   Italy [GC] (no. 39748/98) Stanev v. Bulgaria [GC] (no. 36760/06), Assanidze v. Georgia [GC] (no. 71503/01), Vella v. Malta (no. 73182/12), Xenides-Arestis v. Turkey (no. 46347/99 (just satisfaction)) and Gerasimov and others v. Russia (no. 29920/05 and 10 others), the Court awarded non ‑ pecuniary damages to the applicant(s), while at the same time urging the State to take general measures to resolve the violation(s) alleged. Moreover, in Sürmeli v. Germany [GC] (no. 75529/01), the respondent State had already taken steps to remedy the violation and the Court thus held that general measures were no longer called for; the applicant was nevertheless awarded non-pecuniary damages. 8.     The fact that the possibility to implement general measures does not, as such, preclude the award of just satisfaction by the Court was stipulated by the Grand Chamber in its judgment in the Assanidze v. Georgia case cited above (see paragraph 198), which also concerned recurrent violations: “... a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction , but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court ... .” 9.     Moreover, I believe that in this case there were sufficient grounds to award just compensation to the applicants. The non-pecuniary damage they sustained is clear: the applicants suffer from nationwide, systematic, and repeated violations of their fundamental rights, arising from the existence of a practice incompatible with the Convention at the national level. In my view, this points in favour of an award for non-pecuniary damage, not against. 10.     Additionally, the Court fails to adequately take into account the applicants’ frustration, distress and feelings of injustice caused by the repeated application of the discriminatory practice against them over the years, which feelings were inevitably “exacerbated by their taking upon themselves the trouble and burden of acting – at least to some extent – on behalf of all others in their position” (see Hutten-Czapska v. Poland [GC], no.   35014/97, § 248). The Court, in paragraph 29 of the judgment, does recognise that the applicants may have experienced feelings of frustration, but, to my surprise, rejects the applicants’ claim to non-pecuniary damage. In light of the above, however, I believe that it would have been consistent with the Court’s case-law and the individual circumstances of the case to award such just satisfaction. 2.     State of execution of the leading judgments 11.     The two leading cases concerning the rights of sexual minorities in Russia, and more particularly the banning of LGBT events, Alekseyev v.   Russia (no. 4916/07 and 2 others, 1 October 2010) and Bayev and others v.   Russia (no. 67667/09 and 2 others, 20 June 2017), are the subject of enhanced supervision procedures before the Council of Ministers. However, the implementation of the general measures called for following those judgments is pending before the Committee of Ministers, and will probably not occur in the near future. 12.     As noted by the Court, notwithstanding the concerns raised by the Committee of Ministers, “in the years which have passed since the Alekseyev judgment (cited above), no such measures have yet been brought forward by the Government” (see paragraph 27 of the judgment). Moreover, during the last examination of the execution of the Alekseyev judgment by the Committee of Ministers in December 2016, the situation did not attest to any improvement, as between 1 October 2015 and 30 June 2016 only one of a total of 51 requests submitted to hold public events similar to those at issue was granted (see Decision CM/Del/Dec(2016)1273/H46-23, adopted by the Committee of Ministers at its 1273 rd meeting (6-8 December 2016), §   4). Similarly, in June 2013, a ban on the so-called “propaganda of homosexuality” was introduced by Russian legislation and these grounds were used to further refuse permission to hold LGBT public events (which led to the violation of Article 10 of the Convention, as found by this Court in Bayev , cited above). 13.     Therefore, in my view, the applicants have no genuine prospect of regaining their freedom of assembly in the near future. Under these circumstances, the Court should not additionally deprive them of just satisfaction. 3.     Application of Article 46 of the Convention in the case at hand 14.     The Court, in paragraphs 27 and 28 of the judgment, reiterates its established case-law on Article 46 and mentions the state of execution of the above-cited Alekseyev judgment, in relation to its refusal to grant non-pecuniary damages to the applicant. 15.     It is clear that the respondent State, following a finding of violation by the Court, is under the obligation to abide by the judgment of the Court and to take, subject to supervision by the Committee of Ministers, the appropriate general and/or individual measures to be adopted in order to put an end to the violation and to redress its effects so far as possible (see Scozzari and Giunta v. Italy [GC], no 39221/98 and 41963/98, § 249). The declaratory nature of the Court’s judgments, which leaves States free to choose such means of redress, is well-established. 16.     In this regard, in Fabris v. France [GC] (no. 16574/08 (merits), §   75), the Grand Chamber held that: “whilst the essentially declaratory nature of the Court’s judgments leaves it up to the State to choose the means by which to erase the consequences of the violation [...], it should at the same time be pointed out that the adoption of general measures requires the State concerned to prevent, with diligence, further violations similar to those found in the Court’s judgments ... . This imposes an obligation on the domestic courts to ensure, in conformity with their constitutional order and having regard to the principle of legal certainty, the full effect of the Convention standards, as interpreted by the Court.” 17.     Nor is any doubt cast on the role of the Committee of Ministers in the execution of judgments or the need for its continued involvement in the implementation of the Alekseyev and Bayev judgments in order to put an end to the respondent government’s impugned practice in the long-term,. 18.     However, in my view, the sole finding of violations, which should, in principle, trigger the implementation of the appropriate domestic measures, does not, in the case at hand, repair the damage caused to the applicant by the violation “in such a way as to restore as far a possible the situation existing before the breach” (see Assanidze v. Georgia [GC], cited above, § 198, and Scozzari and Giunta v. Italy [GC], cited above, § 249). In other words, restitutio in integrum is not achieved. 19.     This argument stems from a number of observations. Firstly, after the Court’s judgment in Alekseyev eight years ago, the respondent State and the domestic courts were already under an obligation to remedy the violations suffered by the applicants and to swiftly change their practice in order to avoid future violations. They have, however, consistently failed to do so, as evidenced by the subsequent Bayev judgment and the present case. The process of implementation, under the supervision of the Committee of Ministers, is still pending and the Committee has not yet adopted any final resolution concluding that the Russian Government has fulfilled its obligations under Article 46 § 2 of the Convention. Thus the refusal of the Court to award non-pecuniary damages is even more paradoxical given that the impugned practice and legal provisions remain in force, and that the effects of the harm already sustained by the applicants have therefore not been mitigated (see, mutatis mutandis , Bayev and others v. Russia , no.   67667/09 and two others, § 98). Secondly, the Court made no reference to Article 46 of the Convention in Alekseyev and Bayev , nor did it decide in those two cases to apply the so-called “pilot-judgment procedure” concerning repetitive cases stemming from the same uncorrected practice incompatible with the Convention. Thirdly, the applicant has suffered immaterial damages that a change in practice will not appropriately remedy, as explained in paragraphs 9 and 10 of this opinion. B.     Risk of prejudicing applicants in repetitive cases 20.     The refusal to grant just satisfaction in cases where a systemic shortcoming is identified within the respondent State’s domestic legal system would have the perverse outcome of victimising applicants whose rights have been violated multiple times by penalising their use of the Court. 21.     While all the Court’s judgments and decisions are made on the basis of the individual circumstances of and allegations made in a particular case, and although the awards made under Article 41 depend on a number of factors, there is a glaring difference between the