12 April 2021
To the Commissioner for Human Rights of the Russian Federation Moskalkova T. N.
[appeal by constitutional experts] Moscow, April 12th, 2021
Dear Tatyana Nikolaevna!
One of the legal problems that is linked to the implementation of the constitutional right of citizens to assemble peacefully and unarmed has become acutely relevant.
This is because in cases where the organisers of an event cannot agree on a place and time with the authorities, at the place of its planned holding, that is to say on certain sections of city streets or squares, people might congregate, who either express support for the idea of the protest, or who simply show interest in it (often out of curiosity). If they do not commit offences (they don’t go out onto the road, they don’t damage planted flowers or herbiage or any property), and don’t show symbols associated with the unsanctioned event, then their behavior is lawful and there are no grounds for their detention.
Nonetheless, in practice the actions of law enforcement in such cases are as follows: everyone who is within the territory of an unsanctioned event, or who approaches that area, being at a distance of several hundred metres to several kilometres from it (as, for example, on 26 March 2017, when citizens were moving to Pushkin Square from the Belorussky railway station, and a total of about 1,500 people were arrested), become subject to the actions of the police or the National Guard. Force is invariably applied to these people, often in a rough and demonstrative form.
According to various sources, the number of people detained during unsanctioned public events was about 4,000 on 23 January 2021, and about 5,000 on 31 January 2021. A significant number of them had not committed any administrative offences. Such a situation cannot be considered normal.
We focus on cases when the persons who become subject of detention behave peacefully, as provided for by Article 31 of the Constitution of Russia. For example, they walk around, observe what is happening, or else stand still. The application of coercive measures in such cases gives the impression of an unprovoked assault. In fact, such behaviour does constitute assault. There are many videos that reflect this problem.
If a person commits an offence, then that person’s detention is lawful. In a number of rulings made by the Constitutional Court and the European Court of Human Rights, it is noted that if the organizers or participants of a public event behave destructively and aggressively, the state can use all legal means to prevent and suppress manifestations that do not meet the essence of the right to peaceful assembly.
However, we are referring to various cases in which no such offences are committed by persons near to the places where unsanctioned public protests are being held. In these cases, their detention and prosecution is a violation of their constitutional right – a very important right in terms of the possibility to express their political views.
This conclusion is consistent with the legal ruling of the Constitutional Court. Specifically, in ruling No. 2-P of 10 February 2017, it is stated that this right provides citizens with the genuine opportunity to exert influence on the organisation and exercise of public power and thereby contribute to the maintenance of peaceful dialogue between civil society and the state, not excluding public events of a protest nature.
Referring to a judgment of the European Court of Human Rights, the Constitutional Court highlights the conclusion that holding a demonstration without prior consent does not necessarily justify the punitive measures applied by the authorities.
It is true that this right may be restricted by federal law in accordance with the criteria determined by the requirements of the Constitution. Nonetheless, these restrictions are conditioned by the constitutional principles of equality and the resulting principle of proportionality.
With this in mind, it is necessary to point out that in recent years, in fact, the procedure for approving a public event has become an obstacle to the implementation of this constitutional right. But, as follows from the legal position formulated by the Constitutional Court of the Russian Federation in its ruling of 2 April 2009 No. 484-O-P, the concept of “coordination of the holding of a public event with a public authority” – in its constitutional and legal sense – does not imply that the public authority may prohibit the holding of a public event or change its purpose, place, time or form at its discretion; it has the right only to propose to change the place and (or) time of its holding, and such a proposal must be justified.
In reality, we see a completely different picture. Executive authorities arbitrarily refuse to allow such events to be conducted, and if we are talking about events that are of a protest nature, refusals occur in the vast majority of cases.
It should be noted that in the last year, refusals have often been justified with reference to restrictions resulting from the epidemiological situation. Such restrictions are, of course, possible, but they cannot be imposed by regional authorities, since constitutional rights and freedoms can only be restricted by a federal legislator.
Thus, the only legal way out of the current situation regarding the process of approving public protests is to comply with the norms of the law and the legal positions of the Constitutional Court.
The questions that we raise in this regard in this appeal to you are: are mass and often violent detentions and other coercive measures proportionate with regard to persons who have received an unjustified refusal to hold a protest, who exercise their constitutional right and behave peacefully, and what action should be taken?
Jurisprudence has also shown that in cases where a public protest was not agreed upon for some reason, but the law enforcement forces refused to take violent actions against peaceful demonstrators, the events were held and ended peacefully, and the impetus for public dialogue to develop was increased. An example of this was the mass rally on Pushkin Square on 7 October 2017. However, this was an “exception to the rule”.
Public protests of a peaceful nature, which have a respectful relationship between the participants in the events and the representatives of law enforcement , and towards which public authorities have a positive, constructive attitude, should finally become the norm. This is especially true in the year of parliamentary elections.
We appeal to you as fellow legal experts and as citizens of Russia, who have a keen interest in promoting thte ideals of law in our state [the Russian Federation]. We ask you to appeal to the executive authorities of the constituent entities of the Russian Federation, the leadership of the Ministry of Internal Affairs and the National Guard, with a proposal to disavow the practice of detaining citizens who are on the streets of Russian cities near the venues of public events that do not have official permission, are unarmed and behaving peacefully.
We consider it necessary for the Human Rights Ombudsman to put forward a proposal on the development of legal mechanisms for coordinating the interests (positions) of parties to disputes about the legitimacy of planned rallies and the permissibility of the use of force applied to participants of unauthorized rallies. The main purpose of such legal mechanisms is to organize and maintain a dialogue between civil society and the state, as a means of harmonizing public life and preventing “great upheavals” that threaten the existence of Russia. We are prepared to take part in this sort of legislative work.
We all share the belief that human rights and freedoms in full compliance with the Russian Constitution are the highest value in our country. It is our duty, despite all the difficulties – to do everything possible to ensure that this constitutional formula is consistently implemented.
I. A. Alebastrova – Doctor of Law
S. N. Baburin – Doctor of Law, Professor, Honoured Scientist of the Russian Federation
A. Yu. Buzin – Candidate* of Law, Candidate of Physical and Mathematical Sciences, Head of the interregional association of Voters, Co-chairman of the organisation “GOLOS”
V. B. Isakov – Doctor of Law, Honored Lawyer of the Russian Federation
M. A. Krasnov – Doctor of Law, Professor
O. N. Kryazhkova – Candidate of Law
V. I. Lafitskiy – Corresponding Member of the International Academy of Comparative Law, substitute member of the Venice Commission of the Council of Europe 2013-2017, Honored Lawyer of the Russian Federation
E. A. Lukyanova – Doctor of Law, Professor of the Free University
V. N. Podoprigora- Lawyer, Associate Professor of Plekhanov Russian University of Economics
O. G. Rumyantsev – Candidate of Law, Chairman of the Constitutional Club
A. Yu. Tsarev – Candidate of Law, Associate Professor, Associate Professor of the Department of State and Legal Disciplines of the Institute of Law and Management of the Moscow State Pedagogical University
I. G. Shablinsky – Doctor of Law, member of the Moscow Helsinki Group
*“Candidate” is a distinct degree in Russian academia. It is comparable to a PHD, being level 8 (doctoral or equivalent) under the UN International Standard Classification of Education [translator’s note]
Translated by Ruairidh Irwin