CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 novembre 2019

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font-style:italic } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }       THIRD SECTION CASE OF OBOTE v. RUSSIA (Application no. 58954/09)       JUDGMENT   Art 11 • Freedom of peaceful assembly • Dispersal of flash mob and administrative fine for failure to comply with prior-notification requirement • Proportionality • Authorities’ failure to show tolerance towards peaceful gathering despite absence of any risk of insecurity or disturbance   STRASBOURG 19 November 2019 FINAL   19/02/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Obote v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Georgios A. Serghides,   Helen Keller,   Dmitry Dedov,   María Elósegui,   Gilberto Felici,   Erik Wennerström, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 22 October 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 58954/09) 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 a Russian national, Mr Andrey Delionovich Obote (“the applicant”), on 27 October 2009. 2.     The applicant was represented by Mr I. Sivoldayev, a lawyer practising in Voronezh. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the 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 applicant alleged a violation of his right to freedom of assembly. 4.     On 13   May 2015 notice of the application was given to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1986 and lives in Mozhaysk, Moscow Region. 6.     On 31 January 2009 the applicant and six other people decided to hold a “flash mob” [1] in front of the Office of the Russian Government in Moscow. 7.     They arrived there at around 1 p.m. on the same day and positioned themselves at Gorbatyy Bridge, each holding a blank sheet of paper with their mouths covered with adhesive tape. 8.     At 1.20 p.m. the police ordered the group to disperse. The applicant asked to be informed of the grounds for such an order. He was taken to Presnenskiy police station. 9.     The applicant was charged under Article 20.2 § 2 (breaches of the established procedure for the organisation or conduct of public gatherings, meetings, demonstrations, marches or pickets) of the Code of Administrative Offences (“the CAO”) relating to his participation in a public gathering because the requirement of prior notification under the Federal Law on Gatherings, Meetings, Demonstrations, Processions and Pickets, no. FZ-54 of 19 June 2004 (“the Public Events Act”) had not been respected. 10 .     On 11 March 2009 the justice of the peace of the 378th circuit of the Presnenskiy District of Moscow convicted the applicant of the administrative offence under Article 20.2 § 2 of the CAO and sentenced him to a fine of 1,000 Russian roubles (approximately 22 euros (EUR)). The judgment read, in so far as relevant, as follows: “At 1.20 p.m. on 31 January 2009 [the applicant] ... as a participant in the public event [in the form of] a static demonstration ( пикетирование ), breached the established procedure for the conduct of a public event ... [The applicant] denied his guilt in respect of the administrative offence ... He had been aware of the need to comply with the notification procedure when organising a public event, but in this particular case, in his opinion, such compliance had not been necessary as the act had not been political in character but had been a flash mob, that is to say a synchronised action of several people. ... He had told the police officers that the participants in the act had not been involved in a public event but had been taking photos on the bridge while holding blank sheets [of paper] ... The court declines [the applicant’s] arguments because his guilt in the administrative offence ... has been proved by the bulk of evidence examined in the course of the court hearing ... ... [The applicant] voluntarily and directly participated in the public event in the form of a static demonstration that had been taking place in breach of the procedure set out by the [Public Events Act] and failed to comply with the lawful order by the police officers to stop the static demonstration. The court dismisses [the applicant’s] argument that the act did not amount to a public event in the form of a static demonstration and that he did not participate in a public event because the evidence collected in this case has shown otherwise. ...” 11.     The applicant appealed, challenging the applicability of the Public Events Act to the circumstances of the case and contesting the fine imposed on him. 12 .     On 28 April 2009 the Presnenskiy District Court of Moscow upheld the judgment of 11 March 2009. The appeal judgment read, in so far as relevant, as follows: “The court dismisses [the applicant’s] and the lawyer’s arguments [presented] in the statement of appeal because, in the court’s opinion, the objective side of the [applicant’s] actions in the form of his appearance at around 2 p.m. on 31 January 2009 among the group of comrades, [with whom] they had agreed [to do so] on the Internet, on the bridge in front of the building at 2 Krasnopresnenskaya Embankment in Moscow, his covering his mouth with adhesive tape, carrying sheets of A4 paper without any inscriptions or images, and being present for ten to fifteen minutes in that place in the absence of any permission whatsoever fully meets the criteria of the administrative offence set out in Article 20.2 § 2 of [the CAO] in the form of a static demonstration.” RELEVANT DOMESTIC LAW 13.     For a summary of the relevant domestic law and practice see Kasparov and Others v. Russia (no. 21613/07, § 35, 3 October 2013); Navalnyy and Yashin v. Russia (no. 76204/11, §§ 43-44, 4 December 2014); Novikova and Others v. Russia (nos. 25501/07 and 4 others, §§ 67-69, 26   April 2016); and Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§   216 ‑ 312, 7 February 2017). 14.     The provisions of the Public Events Act as in force at the material time directly relevant to the present case are set out below. 15.     Section 2(1) defined a “public event” as an open, peaceful event accessible to all, organised at the initiative of citizens of the Russian Federation, political parties, other public associations, or religious associations with the aims of expressing or developing opinions freely and voicing demands on issues related to political, economic, social or cultural life in the country, and issues related to foreign policy. 16.     The Public Events Act distinguished between five types of a public event: a gathering ( собрание ); a meeting ( митинг ); a demonstration ( демонстрация ); a march ( шествие ); and a “static demonstration” ( пикетирование ) (for further details, see Lashmankin and Others , cited above, § 219). 17 .     Section 2(6) defined a static demonstration as a form of public expression of opinion that does not involve movement or the use of loudspeaker equipment, where one or more citizens with placards, banners and other means of visual expression station themselves near the target object of the static demonstration. 18 .     In accordance with sections 5(4)(1) and 7(1)(3), notification in respect of a static demonstration involving several persons must be submitted no later than three days before the intended static demonstration or, if the end of the time-limit falls on a Sunday or a public holiday, no later than four days before the intended static demonstration. No notification was required for “gatherings” and static demonstrations involving one person. 19 .     In accordance with section 7(3), notification must contain the following elements: (a)   the purpose of a public event; (b)   its form; (c)   its place; (d)   its date and the time of its beginning and ending; (e)   an envisioned number of participants; (f)   methods by employing which the organiser of a public event intends to ensure that public order be maintained and emergency medical aid be made available; (g)   the full name of the organiser of a public event, his or her address and phone number; (h)   the full names of persons authorised by the organiser of a public event to represent him or her in the course of a public event; (i)   the date of submitting the notification. THE LAW ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 20.     The applicant complained that the authorities’ putting an end to the flash mob and his prosecution for an administrative offence violated his right to freedom of assembly, as provided in 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. 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.” Submissions by the parties The Government 21 .     The Government submitted at the outset that the applicant had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. They argued that the application had been “entirely unrelated to the fine imposed on the applicant” (see Zwinkels v.   the Netherlands (dec.), no. 16593/10, § 25, 9 October 2012) and, consequently, the matter in dispute had had no financial impact. They further argued that in any event the fine imposed on the applicant had been of a modest amount. The applicant had not demonstrated that the administrative proceedings against him had had any adverse effect on him. The issues raised in the application were subject to the Court’s well-established case ‑ law ( Berladir and Others v. Russia , no. 34202/06, 10 July 2012). The charges of an administrative offence against the applicant had been examined by domestic courts in two instances. The Government concluded that the application should be declared inadmissible under Article 35 § 3 (b) of the Convention. 22 .     The Government further submitted that the applicant’s actions had fully corresponded to the definition of a static demonstration under section   2(6) of the Public Events Act. Under section   7 of the Public Events Act, static demonstrations were subject to a notification procedure, which was compatible with the requirements of Article   11 of the Convention and served the purpose of preventing disorder. In the Government’s view, sanctioning a participant in a public event for the failure to follow the notification procedure was a prerogative of a State. 23 .     The domestic courts had rejected the applicant’s argument that he had not participated in a static demonstration because it had been clear that a group of people standing with their mouths taped and holding blank sheets of paper had in fact been demonstrating outside a Government building. The applicant himself had claimed before the domestic courts that he had been aware of the need to notify the authorities of the planned static demonstration. Moreover, the applicant had intentionally sought to test whether his actions would be considered as a protest activity in order to provoke a conflict. In the absence of prior notification of the static demonstration, the applicant had been subjected to the administrative sanction set out in Article 20.2 § 2 of the CAO. The fine imposed on the applicant had been proportionate to the nature of his offence. The applicant 24.     The applicant submitted that the administrative proceedings against him that had resulted in a fine had amounted to a disproportionate interference with his right to freedom of assembly. The domestic courts had failed to perform a balancing exercise to assess the proportionality of the interference to any aims related to protecting the public interests. 25 .     Disagreeing with the Government’s position regarding the inadmissibility of the application, the applicant emphasised that, despite the fact that the administrative proceedings against him had been examined at two levels of jurisdiction, in the absence of a meaningful balancing exercise and proportionality analysis it could not be said that his complaint under Article 11 of the Convention had been “duly considered by a domestic tribunal”. The applicant further submitted that the fine imposed on him had had a “chilling effect” which would affect his exercise of the right to freedom of assembly in the future, and that the notification procedure under the Public Events Act had built barriers precluding participants in peaceful assemblies from enjoying their rights. The Court’s assessment Admissibility 26.     The Court will begin by turning to the Government’s objection under   Article 35 §   3 (b) of the Convention, which reads as follows: “3.     The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: ... (b)     the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.” 27.     The Court has considered the rule contained in this provision to consist of three criteria. Firstly, has the applicant suffered a “significant disadvantage”? Secondly, does respect for human rights compel the Court to examine the case? Thirdly, has the case been duly considered by a domestic tribunal (see Smith v. the United Kingdom (dec.), no. 54357/15, §   44, 28   March 2017)? 28.     The first question of whether the applicant has suffered any “significant disadvantage” represents the main element. Inspired by the general principle de minimis non curat praetor , this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case. In other words, the absence of any “significant disadvantage” can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant. However, the applicant’s subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see, with further references, C.P. v. the United Kingdom (dec.) no. 300/11, §   42, 6   September 2016). A violation of the Convention may concern important questions of principle and thus cause a significant disadvantage regardless of pecuniary interest (see Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). 29.     In considering whether the applicant has suffered a “significant disadvantage” in the circumstances of the present case, the Court notes that he complained before it about the administrative-offence proceedings against him that had been instituted following his participation, together with six other people, in a flash mob and had resulted in a fine of EUR 22. 30.     The Government submitted that the present application was “entirely unrelated to the fine imposed on the applicant” (see paragraph 21 above). The Court cannot agree with this assertion for the reason that the domestic courts fined the applicant for his failure to notify the authorities of his intention to hold a static demonstration. This measure, unlike the fine imposed on the applicant in Zwinkels (cited above, §§ 3 and   6), was thus directly linked to the crux of the application at hand. 31.     While the size of the fine was indeed modest, and the applicant did not advance any arguments to demonstrate that it had been significant to him in the light of his personal situation, his subjective perception of the alleged violation was that he had experienced a chilling effect of the administrative-offence proceedings that would affect the exercise of his right to freedom of assembly in the future (see paragraph 25 above). The Court reiterates that the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society (see, among other authorities, Navalnyy v.   Russia [GC], nos.   29580/12 and 4 others, § 98, 15 November 2018). In cases concerning freedom of assembly the Court, when applying the admissibility criterion contained in Article 35 § 3 (b) of the Convention, should take due account of the importance of this freedom and exercise a careful scrutiny (compare, in the context of Article 10, Sylka v.   Poland (dec.), no. 19219/07, §   28, 3 June 2014; see also, in the context of Article   11, Berladir and Others v. Russia , no. 34202/06, § 34, 10 July 2012, and Öğrü v. Turkey , no.   19631/12, § 18, 17 October 2017). Considering that the applicant was subjected to administrative-offence proceedings for his participation in a peaceful assembly, the alleged violation of Article 11 of the Convention in the present case concerns, in the Court’s view, “important questions of principle”. The Court is thus satisfied that the applicant suffered a significant disadvantage as a result of the administrative-offence proceedings against him regardless of pecuniary interests and does not deem it necessary to consider in the context of its analysis of the Government’s objection whether respect for human rights compels it to examine the case or whether it has been duly considered by a domestic tribunal (see, mutatis mutandis , M.N. and Others v. San Marino , no. 28005/12, § 39, 7 July 2015). 32.     Accordingly, the Court dismisses the Government’s objection pertaining to Article 35 § 3 (b) of the Convention. 33.     The Court further notes that the application 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. Merits 34.     The Court will examine this case in the light of the general principles regarding the right to freedom of assembly established in its case-law that have been recently summarised in the case of Navalnyy (cited above, §§   98 ‑ 103). 35.     Even though the Government have not contested before the Court the applicant’s allegation that there had been an interference with his right to freedom of peaceful assembly, the Court considers it appropriate to emphasise the following. It has been the Court’s constant approach to regard the notion of an assembly as an autonomous concept (ibid.). Given the format of the gathering that the applicant has described as a flash mob, the Court considers that it fell within the notion of “peaceful assembly” contained in Article   11. The applicant intended to take part in this assembly and never denied it; even if he did not consider it a “public event” or a “static demonstration” subject to notification under the applicable national law, he had been exercising his right to freedom of peaceful assembly under Article 11 of the Convention. In the Court’s view, the dispersal of the assembly and the ensuing sanctions constituted “a restriction”, within the meaning of the second paragraph of Article 11, and thus an interference with his right to freedom of peaceful assembly as protected by the first paragraph of this Article (ibid., § 108). It thus remains for the Court to be ascertained whether the interference was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 of Article 11, and was “necessary in a democratic society” for the achievement of the aim or aims in question (see Kudrevičius and Others v.   Lithuania [GC], no.   37553/05, §   102, ECHR 2015). 36.     The Government referred to the provisions of the Public Events Act as a legal basis for the interference complained of and asserted that it had pursued a legitimate aim of the prevention of disorder. 37.     The Court observes that the police dispersed the assembly of seven people and a fine was imposed on the applicant following the administrative-offence proceedings on the sole grounds that no prior notification of a static demonstration had been given to the authorities. The Government asserted that the applicant’s actions had constituted a static demonstration subject to prior notification (see paragraph 22 above). The applicant stressed both at the national level and before the Court that the assembly he had taken part in could not be regarded as a static demonstration within the meaning of the Public Events Act. The main controversy between the parties thus lies in whether the Public Events Act was applicable to the assembly in the form of a flash mob – were it not so, the applicant should not have been sanctioned for the breach of the rules on organising a static demonstration under Article 20.2 § 2 of the CAO. 38.     The Court observes that the definition of a static demonstration under the Public Events Act (see paragraphs 17 ‑ 18 above) is broad to the extent that a vast array of social situations may fall under it. Any stationary gathering in public – no matter how small and short, irrespective of its purpose or context, and regardless of its potential to cause disruption to ordinary life – of two or more people (solitary static demonstrations being exempt from the prior-notification requirement) holding any object that could be regarded as “a means of visual expression” may be declared unlawful unless a document containing a lengthy list of elements (see paragraph 19 above) has been submitted to the authorities no later than three days before the gathering. 39.     The Court has already pointed out that the Russian regulatory framework governing public gatherings provides for a broad interpretation of what constitutes a gathering subject to notification and allocates to the authorities excessively wide discretion in imposing restrictions on such gatherings through rigid enforcement (see Navalnyy , cited above, §   150). Regardless of whether an assembly in the form of a flash mob falls within the scope of the Public Events Act, it is essential for the Court to establish whether the applicant’s right to peaceful assembly has been respected. In view of its findings below it is unnecessary to decide whether the interference with the applicant’s right to freedom of assembly was “prescribed by law” or pursued one or more legitimate aims (see, mutatis mutandis , Mătăsaru v.   the Republic of Moldova , nos. 69714/16 and 71685/16, § 32, 15   January 2019). The Court will focus on assessing whether the interference was “necessary in a democratic society”. 40.     In examining the necessity of the impugned interference with the right to freedom of assembly in the present case, the Court will examine, on the basis of the relevant principles summarised in Kudrevičius and Others (cited above, §§   142-60), whether the measures taken against the applicant were proportionate to legitimate aim invoked by the Government, namely “the prevention of disorder”, and whether the reasons adduced by the national authorities to justify them were “relevant and sufficient”. In doing so it will assess whether these measures answered a pressing social need. 41.     Under the Court’s well ‑ established case-law, an unlawful situation, such as the staging of a demonstration without prior authorisation, does not necessarily justify an interference with a person’s right to freedom of assembly. While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public demonstrations, since they allow the authorities to minimise the disruption to traffic and take other safety measures, their enforcement cannot become an end in itself. In particular, where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (ibid., § 150). 42.     The Government suggested that the applicant’s aim in organising the flash mob had been to test whether his actions would be considered as a protest activity in order to provoke a conflict with the authorities (see paragraph 23 above). What is salient to the Court is the fact that nothing in the actions of the applicant and the other participants in the flash mob could be described as incitement to violence or rejection of democratic principles. They did not do anything capable of causing disorder or disruption to ordinary life. Indeed, seven people standing in silence with their mouths sealed with adhesive tape and holding blank sheets of paper hardly represent a threat to public order. However, the domestic authorities did not show the requisite degree of tolerance towards their peaceful gathering despite the absence of any risk of insecurity or disturbance, seemingly in disregard of what the Court has emphasised on numerous occasions, namely that the enforcement of rules governing public assemblies should not become an end in itself (see Kudrevičius and Others , § 155, and Navalnyy , § 144, both cited above). 43.     When finding the applicant guilty of the administrative offence under Article 20.2 § 2 of the CAO, the justice of the peace and the Presnenskiy District Court did not assess the level of disturbance the assembly had caused, if any. They merely observed that the applicant had failed to comply with the prior-notification requirement in respect of the social situation that, in their view, had doubtlessly amounted to a static demonstration (see paragraphs 10 and 12 above). The Court reiterates that the proportionality principle demands that a balance be struck between the requirements of the purposes listed in Article 11 § 2 on the one hand, and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places, on the other (see Kudrevičius and Others , cited above, §   144). It considers that the domestic judicial bodies in the course of the administrative-offence proceedings against the applicant did not seek to strike this balance giving the preponderant weight to the formal unlawfulness of the presumed static demonstration. 44.     The Court further points out that it has previously held that the offence set out in Article 20.2 §   2 of the CAO should be classified as “criminal”, regard being had to the general nature of the offence, and given that the purpose of the sanction is punitive and deterrent in nature, all of which is a characteristic of the criminal sphere (see Mikhaylova v. Russia , no. 46998/08, §§ 57-69, 19 November 2015, and Navalnyy , cited above, §   79). Accordingly, the applicant was subject to sanctions which, although classified as administrative under domestic law, were “criminal” within the autonomous meaning of Article 6 § 1, thereby attracting the application of this provision under its “criminal” head. However, a peaceful demonstration should not, in principle, be rendered subject to the threat of a criminal sanction and notably to deprivation of liberty. Where the sanctions imposed on a demonstrator are criminal in nature, they require particular justification. The freedom to take part in a peaceful assembly is of such importance that a person cannot be subject to a sanction – even one at the lower end of the scale – for participation in a demonstration which has not been prohibited, so long as that person does not her or himself commit any reprehensible act on such an occasion (see Navalnyy , cited above, § 145). 45.     In view of the above, the Court cannot find that the applicant’s freedom of peaceful assembly as protected by the Convention was outweighed by any interests on the part of the respondent State in restricting the exercise of that freedom with a view to preventing disorder. The reasons relied on by the respondent State did not correspond to a pressing social need. Even assuming that they were relevant, they are not sufficient to show that the interference complained of was “necessary in a democratic society” (ibid., §   146). Notwithstanding the national authorities’ margin of appreciation, the Court considers that there was no reasonable relationship of proportionality between the restrictions placed on the applicant’s right to freedom of assembly and any legitimate aim pursued. 46.     Accordingly, the Court holds that there has been a violation of Article 11 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 47.     Article   41 of the Convention provides: “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.” Damage 48.     The applicant claimed 4,000 euros (EUR) in respect of non ‑ pecuniary damage. 49.     The Government submitted that the applicant’s rights under the Convention had not been breached and that the amount claimed was excessive. 50.     The Court awards the applicant the amount claimed in respect of non-pecuniary damage. Costs and expenses 51.     The applicant did not submit claims for costs and expenses. Accordingly, the Court considers that there is no call to award them any sum under that head. Default interest 52.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Dismisses the Government’s objection regarding the alleged lack of significant disadvantage; Declares the application admissible; Holds that there has been a violation of Article 11 of the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non ‑ pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 19 November 2019, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Stephen Phillips   Paul Lemmens   Registrar   President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the opinion of Judge Serghides joined by Judge Dedov is annexed to this judgment. P.L. J.S.P.   CONCURRING OPINION OF JUDGE SERGHIDES, JOINED BY JUDGE DEDOV The single integrated admissibility rule of Article 35 § 3 (b) of the Convention 1.     In brief, the facts of the present case were the following. The applicant together with six other persons organised a flash mob near a government building in Moscow. The police dispersed the gathering and brought the applicant to a police station. He was charged with and found guilty of an administrative offence, namely a breach of the rules on holding a public event, because he had not notified the authorities in advance of his intention to hold a “static demonstration” and was fined EUR 22. In the course of the administrative-offence proceedings the applicant insisted that the flash mob could not be considered a static demonstration as the gathering had not been one of a political nature, but his argument was rejected. The applicant complained that the authorities’ termination of the flash mob and his prosecution for an administrative offence violated his right to freedom of assembly , as protected by Article 11 of the Convention. 2.     The Government raised a de minimis objection, relying on Article 35 § 3 (b) of the Convention, which provides as follows: “3.     The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: ... (b)     the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.” Under Article 35 § 4 of the Convention, “[t]he Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings”. 3.     The judgment was unanimous in finding that the application was admissible and that there had been a violation of Article 11. The judgment was also unanimous as to the amount awarded to the applicant for non ‑ pecuniary damage, namely EUR 4,000. The purpose of this concurring opinion is to explain how and why I reached the finding that the present application was admissible, by using a different interpretation and analysis of Article 35 § 3 (b) of the Convention from that used in the judgment. 4.     I decided to make a comprehensive and rather extensive legal analysis in this concurring opinion because the said provision is a relatively new one in the Convention and calls for a thorough interpretation. It should also be said that with the adoption of this provision, a number of applications have now been considered inadmissible which in the past would not have met the same fate. The provision at hand may have an impact on the effective protection of human rights because the Convention is a shield of protection for any violation of the rights safeguarded by it. Therefore, the interpretation and application of the provision under discussion is very important. The fact that Article 45 § 2 of the Convention has been interpreted as not giving a judge the right to deliver a separate opinion in the context of a decision, but only in that of a judgment, has prevented judicial dialogue on Article 35 § 3 (b) from developing in inadmissibility decisions where complaints were dismissed on the basis of this new criterion. Since this did not happen in the present case, I now have the opportunity to write a separate opinion and attempt to develop my views regarding the interpretation and application of the provision. 1.     The three limbs of Article 35 § 3 (b) 5.     Article 35 § 3 (b) of the Convention sets out the following three cumulative limbs (elements or conditions), which must be fulfilled in order for an application to be found inadmissible: (a)   the applicant has not suffered a significant disadvantage; (b)   respect for human rights does not require examination on the merits; and (c)   the case was duly considered by a domestic court. Paragraph 27 of the judgment presents these three limbs in the form of questions. 2.     Different interpretative approaches to Article 35 § 3 (b) 6.     In the present case, the judgment considers the application admissible based on its rejection of only the first limb of Article 35 § 3 (b), without examining the other two. 7.     As the Court stated in Nina Vasilyevna Shefer v. Russia ((dec), no.   45175/04, § 17, 13 March 2012), “no formal hierarchy exists between the three elements of Article 35 § 3 (b) ... However, the question of whether the applicant has suffered a ‘significant disadvantage’ is at the core of this admissibility criterion ... while the remaining two elements are intended to be safeguard clauses ...”. In the same vein, Harris, O’Boyle and Warbrick [2] argue that “[t]here is no strict hierarchy or order in which the Court will consider the limbs”. 8.     Indeed, the Court’s approach has varied, that of the present judgment being only one example: in Nicoleta Gheorgie v. Romania (no. 23470/05, §§   24-26, 3 April 2012) the Court found the application admissible after rejecting only the second limb of Article 35 § 3 (b); in M.N. and Others v.   San Marino (no. 28005/12 , § 39, 7 July 2015, referred to at paragraph 31 of the judgment in the present case) the Court found the application admissible after examining both the first two limbs of the said provision but not the third; in Andrey Nikolayevich Savelyev v. Russia (no. 42982/08, §§   22, 24 ‑ 35, 21 May 2019), the Court (Third Section, as in the present case) declared the application inadmissible in accordance with Article 35 §§   3 (b) and 4, after examining all three limbs of the provision and finding that all three grounds for the rejection of an application under the above admissibility criterion had been satisfied. 3.     The approach of the present judgment 9.     The relevant part of the judgment explaining why admissibility is based only on the first limb of Article 35 § 3 (b) is paragraph 31: “31.     While the size of the fine was indeed modest, and the applicant did not advance any arguments to demonstrate that it had been significant to him in the light of his personal situation, his subjective perception of the alleged violation was that he had experienced a chilling effect of the administrative-offence proceedings that would affect the exercise of his right to freedom of assembly in the future ... The Court reiterates that the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society ... In cases concerning freedom of assembly the Court, when applying the admissibility criterion contained in Article 35 § 3 (b) of the Convention, should take due account of the importance of this freedom and exercise a careful scrutiny ... Considering that the applicant was subjected to administrative-offence proceedings for his participation in a peaceful assembly, the alleged violation of Article 11 of the Convention in the present case concerns, in the Court’s view, ‘important questions of principle’. The Court is thus satisfied that the applicant suffered a significant disadvantage as a result of the administrative-offence proceedings against him regardless of pecuniary interests and does not deem it necessary to consider in the context of its analysis of the Government’s objection whether respect for human rights compels it to examine the case or whether it has been duly considered by a domestic tribunal ...” 10.     Based on the above, the Court dismissed the Government’s objection under Article 35 § 3 (b) of the Convention (see paragraph 32 of the judgment). 4.     Proposed approach – a holistic and coherent approach 11.     I will now attempt to explain which, in my view, is the most appropriate manner of interpreting and applying Article 35 § 3 (b). I adhere to the approach followed by the Court in Andrey Nikolayevich Savelyev (cited above), namely that all limbs of the said provision must be examined cumulatively. However, I will endeavour below to substantiate the holistic and coherent approach, since in Savelyev no reasons were given for examining all limbs of the provision and it was not proposed there that all limbs be examined together as a uniform rule, as the present opinion now seeks to do. 12.     Despite the fact that the second and third limbs of Article 35 § 3 (b) are phrased as provisos to the acceptance of the first limb, in my view, all three limbs consist of parts of the same integrated rule, like the elements of interpretation in Article 31 § 1 of the Vienna Convention on the Law of Treaties (VCLT), which when “thrown into the crucible” are considered by the International Law Commission and by the Court to form a unity, a single and integrated or combined rule or process of interpretation [3] . 13.     A uniform and holistic examination of Article 35 § 3 (b), taking all the limbs together rather than separate examination of each limb, is justified for many reasons. One reason will be immediately mentioned, namely that all three grounds must be satisfied before an application can be declared inadmissible, thus showing that they are all indispensable elements for the admissibility of the application. My submission is that this approach is necessary in order to reject this ground of inadmissibility, i.e. in concluding that the case is admissible. In the present case the Court considers that once the first criterion of inadmissibility is not fulfilled, then there is no need to examine the others, but the holistic approach that I propose is not only a means of preventing an unjustified conclusion of inadmissibility, it is also a means of reinforcing any rejection of such a conclusion by ensuring effectiveness. Other reasons will be explained later on, after first examining the drafting history and the aim of the provision. (a)     Drafting history and aim of Article 35 § 3 (b) – the compromise between two principles 14.     The new admissibility criterion of “no significant disadvantage” was introduced in the Convention by Protocol No. 14 which took effect from 1   June 2010. 15.     It is apparent from paragraphs 39 and 77-85 of the Explanatory Report to Protocol No. 14 “for the Protection of Human Rights and Fundamental Freedoms, amending the control syst