Defending the right to hold one-person pickets

07.03.2012
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ADC “Memorial” received an appeal for help from G.S. – an activist, who was arrested in Kostroma and accused of violating the law on holding public events (she was arrested during a series of single-person pickets against the passing of homophobic law, similar to the one that was recently passed in St. Petersburg.) During the court hearing, they managed to achieve a cancellation of the decree, holding the activist responsible for administrative actions, and terminating the case overall. At first, the decree of the justice court of Primorsky district of St. Petersburg State Court declared her to be guilty of committing an administrative offence, stipulated in Article 20.2, Section 2 of Administrative Offences Code of the Russian Federation (AOC RF.) The penalty she was given consisted of a fine of one thousand rubles. According to the court, her guilt was evident in that she participated in an “illegal picket,” especially “she participated in a picket with a group of citizens, without having the approval of the authorities.”

With the help of lawyers of ADC “Memorial”, she appealed the decree in the district court. The applicant and her attorney considered the prosecution to be illegal and meritless for the following reasons:

-Infringement of the principle of objective investigation of evidence and presumption of innocence: from the police reports and official statements written by police officers, as well as from other case materials, it was unclear in what way holding the picket was violating the law;

-The court, in the first instance, did not consider the contradictions in the police reports and explanations, contained in the case materials; not all elements of the offence, stipulated in Art. 20.2, Section 2 of the AOC RF, were investigated, since the indicated violation refers to Chapter 20 of AOC RF, in which the object of infringement appears to be public order and public safety. Thus, to legally prove the occurrence of a violation, it was necessary to also define the object of infringement, which had not been done in the passed decree.

With the systematic interpretation of Art. 20.2 of AOC, it is possible to come to the conclusion about indispensability of evidence of not only infringements of the installed legislative rules of holding public meetings, but also violations of public order and public safety by the event’s participants. Such interpretation also conforms to the international practice related to freedom of peaceful assembly. According to Par. 1, Art.11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, every person has the right to peaceful assembly, in which the restrictions in each specific case must be explained (Paragraph 2, Art.11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.) The abovementioned means that, if imposing administrative sanctions for actions committed within the confines of a peaceful meeting, the justice of peace is required to consider whether this sanction will violate not only Russian laws (including the Constitution of the Russian Federation), but also the European Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court for Human Rights more than once declared that, imposing sanctions on a person for organising and participating in a mass public meeting, even if it is not sanctioned by the authorities in the installed national legislation on law and order, but, nevertheless, not in any way violating the public order, or right or legal interests of third persons, is a violation of Art.11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (for example, the decree of the European Court for Human Rights on December 5, 2006 on the case “Oya Ataman v. Turkey,” the case “Alekseev v. Russia.”)

In circumstances of the case, there was an apparent, disproportionate intervention of authorities in the citizens’ realisation of their right to freedom of assembly. The court of primary jurisdiction had violated the principle of objective investigation of evidence and presumption of innocence, the decision was made, based completely on the accusatory position of police officers, without taking into account the actual public danger of such actions, as well as without analysing the right to freedom of peaceful assembly, which had been connected to the investigated circumstances. The court has approached the legal investigation of this case formally, not having evaluated the actual public danger and not having defined all elements of the offence, stipulated in Section 2, Art. 20.2 of the AOC RF – which has also been noted in the complaint.

The judge of the Primorsky District Court studied the arguments of the complaint, took into consideration the appeals of the applicant and her attorney, including the appeal about the right to hold single-person pickets without notice, and made a decision to grant the appeal and overrule the decision of imposing administrative sanction.

We hope that the successful experience of defending the rights of citizens to express their views – at least in the form of single-person pickets – will spread in St. Petersburg courts and be used to defend the rights of activists. This is important, especially in situations, where unreasonable restrictions are generally practiced by the authorities to limit the rights and freedoms, in the passing of laws, practically limiting the freedom to peaceful assembly, freedom of speech, for example, the recent passing of law in St. Petersburg, imposing administrative sanctions for “propaganda of homosexuality,” the practice of which is still absolutely not clear and is especially dangerous in relation to the obviously discriminative and populist composition of the document, allowing practically any interpretation.