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Доклад на русском языке: «Свобода собраний гарантирована, задержаны 17,600 протестующих»: разбираем ответ России на запрос ООН
Introduction
In January-February 2021, protest rallies in support of opposition politician and activist Alexei Navalny were held throughout Russia. Human rights defenders, including OVD-Info, the Memorial Human Rights Center and the Moscow Helsinki Group, reported massive violations of the rights of protesters. In connection with the reports, the Special Procedures of the UN Human Rights Council sent the Russian government a request for information.
The Russian government provided the information on 20 April 2021. It has been recently published on the website of the Special Procedures. We would like to provide our comments on the information submitted by the Russian government.
The Special Procedures asked the Russian authorities several questions. In particular, they asked them to:
- explain how the restrictions on internet platforms in relation to the protests on 23 January 2021 were necessary and proportionate and consistent with Russia’s obligations under international human rights law, in particular article 19 of the ICCPR;
- provide information as to how the Russian government is protecting the right to peaceful assembly and association, in line with its obligations under article 21 of the ICCPR, including by ensuring that COVID-19 related restrictions are not arbitrarily used to hamper the right to freedom of peaceful assembly;
- provide information on investigations into the use of force by police during the protests, especially if such force was proportionate and necessary;
- provide information on the official number of persons arrested during the protests and the legal basis justifying their detention, as well as the fundamental safeguards lawfully ensured for the detainees, including the right to contact a next of kin, the right to contact a lawyer and the right to be privately examined by independent medical personnel, in order to be screened for contagious diseases and potential signs of ill-treatment;
- indicate what measures have been taken to ensure that the political opposition in Russia are able to carry out their legitimate work, including through the exercise of their rights to freedom of opinion and expression, and of peaceful assembly and of association in a safe and enabling environment without fear of threats or acts of intimidation and harassment.
Comments on the authorities’ response
Obligation to ensure the smooth conduct of an assembly
In their response, the authorities cite the provisions of national legislation applicable to freedom of assembly, including the notification procedure. The authorities further refer to the purpose of the notification procedure. They claim that without prior notification, the authorities «would not have an accurate idea as to the nature and scale of the planned public event and would have no real opportunity to fulfil their obligation to observe and protect human and civil rights and freedoms and take the necessary steps, including preventive and organisational measures, to ensure that the public event can take place in safe conditions, both for the participants themselves and others.»
Nevertheless, the authorities were ready to ensure the smooth conduct of the rallies: police units moved into the city centres, police were on round-the-clock duty in some areas (for example, Pushkin Square in Moscow), and buses were parked there to transport detainees. In addition, the authorities issued warnings with threats to potential participants days before the start of the rallies. There is no doubt that in this particular case, the authorities had an idea about the planned public event on 31 January and had every opportunity to ensure the exercise of citizens' rights, but instead chose to suppress the manifestations of dissent.
In at least 5 Russian regions, the authorities filed civil lawsuits against citizens whom they considered the organisers of the rallies, claiming compensation for police weekend overtime (and the use of police vans). This indicates that by mobilising the law enforcement forces, the authorities prepared in advance for the rallies and had a sufficient understanding of the planned events, their nature, and scale.
The reaction of the Russian authorities to the January-February 2021 assemblies is just another example of Russia’s disregard for its international obligations in the field of human rights and the lack of progress in this area. For example, in response to Special Procedures requests in 2019, the Russian authorities indicated that the Ministry of the Interior had prepared special plans to suppress «anti-social gatherings» and protest events on 27 July, 3 and 10 August 2019, including adopting counter-terrorism measures.
Notification procedure and spontaneous assemblies
The Russian authorities claim that citizens did not submit notifications about their intent to hold public events on January 23, 31 and 2 February 2021 to the Moscow city executive authorities.
These statements are not true.
The Libertarian Party of Russia reported that the Moscow authorities rejected the notification of the rally on 30 January. It follows from the response that the Moscow authorities had banned all rallies. According to the official response of the Moscow government department in charge of rally planning, citizens also submitted a notification of a rally on 31 January. They rejected it. The police used the response to successfully bring charges against the participants since such a response established that the rally was ‘illegal’.
The rallies on 2 February were a reaction to the unjust decision to impose a real term of imprisonment on Alexei Navalny, issued earlier in the day. According to international standards on freedom of assembly, spontaneous events are subject to an exception to the rule on the need for prior notification.
The Human Rights Committee notes that any notification regime should exclude the notification requirement for such assemblies, the impact of which on others can reasonably be expected to be minimal, as well as spontaneous assemblies.
The Human Rights Committee has already found Russia in violation of the protesters’ rights to assembly in the context of spontaneous events.
In the Views adopted concerning communication No. 2217/2012 (Elena Popova v. Russia), the Committee recognised the violation of the author’s right to assembly by excessive sanctions, in the absence of any pressing need, imposed as a result of spontaneous and peaceful public protest. The government made the same observations as in the present information sent in response to the Special Procedures request: it referred to the Constitution’s provisions, the requirement of prior notification per the provisions of the Federal Law on Assemblies, the purpose of protecting the rights of others. The Committee did not find these arguments convincing. We believe that they are also untenable in the present case.
In addition, in these Views, the Committee instructed Russia to take measures to ensure that similar violations [of the right to assembly] do not occur in the future, as well as to review its national laws to ensure that they comply with article 21 of the Covenant, including in the context of spontaneous demonstrations. The Russian government failed to fulfil their obligations.
Notifications about the rallies were also submitted in other cities: Irkutsk, Tyumen, Tomsk, Vladimir, Belgorod, Krasnodar, Chita, Kirov. The assemblies were banned under various pretexts.
Grounds for detention in national legislation
The Russian authorities refer to Part 5, Article 20.2 of the Code on Administrative Offenses, which provides for liability for violating the procedure for holding an assembly. In some judgements, courts consider the very fact that a participant failed to submit a notification about the assembly a violation of the procedure. In most cases, however, they find that non-compliance with the request of police officers to disperse violates the procedure. Given that police officers voice the demands over loudspeakers, all participants are considered to be violating the established procedure of holding a rally that includes an obligation to comply with any police orders.
Part 6.1 of Article 20.2 of the Code on Administrative Offenses provides for liability for participating in an «uncoordinated» assembly that caused interference with the movement of pedestrians or transport. One way of creating such obstacles in practice is walking on the sidewalks. If the law enforcement order to close the roads or metro stations, such disruptions are still attributed to the protesters.
Part 2, Article 20.2 of the Code on Administrative Offenses provides for up to 10 days of arrest for organising or conducting an uncoordinated action. In practice, «conducting» may refer to participation, and «organising» refers to activities such as reposting the date of a rally (even without naming the rally or calling for participation in it) or calling to provide legal assistance to detainees.
Part 8, Article 20.2 of the Code on Administrative Offenses provides for a minimum penalty of 150 thousand rubles (about 2,000 USD), up to 30 days of arrest for repeated commission of any of the above offences. Article 212.1 of the Criminal Code provides up to 5 years of imprisonment for a further repeated commission of such an offence.
Article 20.2.2 of the Code on Administrative Offenses provides a penalty of up to 15 days of arrest for organising a simultaneous mass presence or movement of citizens, which entailed negative consequences. At the same time, «organisation» in practice is also understood as conducting it (participation), and negative consequences include interference with pedestrians or a widely interpreted violation of public order.
The penalty is provided for the very fact of participation in assemblies; courts do not assess the necessity and proportionality of interference.
This approach contradicts the position of the Constitutional Court, expressed in its Judgement No. 33-P of 1 November 2019: «holding any public event, as a rule, involves certain inconveniences for citizens who do not participate in it (restriction of pedestrian traffic, interference with transport, obstruction of access to social infrastructure, etc.), which, being an inevitable cost of freedom of peaceful assembly, cannot in themselves be regarded as generating a real threat of harm to the health of citizens, property of individuals or legal entities, the environment, public order, public security, and other constitutionally protected values.»
The legal framework and its law enforcement practice also contradict the position of the Human Rights Committee, which points out that the absence of notification does not make participation in an assembly illegal. The Committee believes it should not be used as a basis for dispersing the assembly, detaining its participants or organisers, or imposing unlawful sanctions on them, such as bringing them to criminal responsibility. The absence of notification does not exempt the authorities from the obligation to facilitate the meeting and protect its participants. Because of their size or nature, assemblies may hinder, for example, the movement of motor vehicles or pedestrians or economic activity. These consequences, whether intentional or unintentional, are not grounds for depriving such assemblies of the protection they enjoy.
Criminal liability for repeated participation in an uncoordinated assembly
The Russian authorities state: «According to the data of the Judicial Department of the Supreme Court of the Russian Federation, in the period 2017– 2019, there were no convictions under article 212.1.» However, this information is incorrect: the Judicial Department indicates that in 2019 there were two convicts under this article.
Moreover, we believe that, contrary to the claims of the Russian authorities, in reality, Article 212.1 of the Criminal Code of Russia is not being applied with due regard to the Judgement of the Constitutional Court No. 2-P/2017 on the case of Ildar Dadin. In particular, in its Ruling No. 7-O/2020 on the case of Konstantin Kotov, the Constitutional Court indicated a review of the applicant’s case, since the courts ignored the position of the Constitutional Court expressed in the Judgement in the case of Ildar Dadin:
As follows from the court decisions in the case of K. A. Kotov, the courts, having imposed a sentence of imprisonment for a term approaching the upper limit of the sanction for the corresponding crime, proceeded from the fact that his actions pose a real threat of harm to the health of citizens, property of individuals or legal entities, the environment, public order, public safety. At the same time, the courts did not address whether the potential or actual harm was significant and whether the public event held had lost its peaceful character due to the applicant’s violation of the procedure for its organisation or conduct. However, it is the existence of any of these circumstances and the proper associated assessment of the relevant evidence — as follows from Article 2121 of the Criminal Code of the Russian Federation in its constitutional and legal meaning, as revealed in the Judgement of the Constitutional Court of the Russian Federation No. 2-P of 10 February 2017 — that is a necessary condition for the imposition of imprisonment for committing a crime provided for in this article.
Without establishing such circumstances, applying a penalty of imprisonment for a crime provided for in Article 2121 of the Criminal Code of the Russian Federation is excluded. Otherwise, it would mean — in violation of the requirements of Article 125 of the Constitution of the Russian Federation and the provisions of the Federal Constitutional Law «On the Constitutional Court of the Russian Federation» (Articles 6 and 79) — overruling a Judgement of the Constitutional Court of the Russian Federation, which is unacceptable.
After the protest rallies of the beginning of 2021, we are aware of five criminal cases that were opened under Article 212.1 of the Criminal Code: against Ya. A. Drobnokhod, A. Yu. Vorsin, P. I. Khokhlov, V. F. Rau, A. A. Kashevarov.
For example, Ms. Drobnokhod faced criminal charges for participating in a picket with ten people, followed by taking part, for 40 minutes, in a rally supporting Navalny of 140 people, followed by staging a picket with two people. While facing these charges, she staged another picket. For this, her house arrest was replaced with detention on remand. The case resulted in a court fine.
Exercise of the right to assembly by minors
The authorities refer to the «involvement of minors in participation in uncoordinated public rallies». Under Part 2, Article 151.2 («Involvement of a minor in the commission of actions that pose a danger to the life of a minor»), four editors of a student magazine are currently charged (according to investigators, as a result of posting material about the upcoming protest action, minors took part in the rallies), as well as Alexey Navalny’s associate Leonid Volkov (who posted a video announcing the rally with age marking «0 «).
The authorities claim that the calls aimed at involving minors in uncoordinated public assemblies put their lives and health at risk. These claims are untenable: it is unclear exactly how calls to participate in a peaceful action can endanger people’s lives and health.
Meanwhile, on 21 January 2021, the mayor of Moscow abolished the mandatory remote study for colleges, reopened children’s entertainment centres, sports schools, summer camps and cultural institutions. Consequently, as a result of the assessment of the risks to the health of minors, the authorities concluded that the interests of their social development outweighed the possible dangers presented by the spread of the coronavirus. This means that the authorities consider only political events dangerous for minors and casts doubt on their true motives.
By ratifying the Convention on the Rights of the Child, Russia has undertaken to recognise the right of the child to freedom of association and freedom of peaceful assembly (article 15). National legislation does not provide for a minimum age of participation. However, the authorities seek to criminalise involving minors in exercising their right to assembly (application of article 151.2 of the Criminal Code). At the same time, the Investigative Committee endorsed a bill providing for up to five years in prison for involving minors in uncoordinated assemblies. Part 1.1, Article 20.2 of the Code on Administrative Offenses currently provides the liability for such actions (up to 15 days of arrest).
The authorities deny the teenagers the agency to exercise their rights, claiming that they are «manipulated» and «involved in [intrigue and political] games», calling it «childish curiosity, harmless pranks, posturing».
Peaceful nature of the events
The Russian authorities exaggerate the negative consequences of the rallies. Even taken together, isolated incidents of aggression have not turned into riots and do not justify the dispersal and persecution of other rally participants, participants of the actions in other cities and on different days. The events themselves have not lost their peaceful character. We are not aware of any court decisions in cases of administrative offences that claim otherwise.
Violations of the conditions of detention
The Russian authorities claim that detention conditions meet all the requirements, and the information about violations distributed on the Internet is false.
However, even President Putin’s press secretary Dmitry Peskov acknowledged the problem: «There are more detainees than the detention centres can handle, there are more detainees than can be processed in a short time, so, unfortunately, there are such consequences… This situation was provoked not by law enforcement officers but by participants of unauthorised rallies — first of all, we need to talk about this, ” Interfax news agency quotes him as saying.
Information about the provision of proper medical and legal assistance is also declarative and insufficiently justified. OVD-Info hotline received more than 30 reports of refusals to call an ambulance. Citizens also complained about the lack of medical assistance in police stations and special detention centres, where the detainees served their arrest. The Russian NGO Committee against Torture appealed to the Investigative Committee about the failure to provide an ambulance to a woman with heart problems.
More than 180 people turned to OVD-Info for legal assistance with violations of the conditions of detention. Among the common violations: overcrowding of cells, lack of beds, overcrowding, stuffiness, lack of hot water, «toilet» does not provide privacy. Twenty people sued the Temporary Detention Center for Foreign Citizens in Sakharovo, where people arrested at Moscow rallies were held, another 158 people confirmed their intention to join the claim, of which more than 28 people have already signed the application to join the lawsuit.
Another collective lawsuit against the police was filed in Voronezh. The people detained at the rally complained about the violation of their rights. But the court refused to consider the lawsuit because of the alleged violation of the form of a claim (not provided for by law or practice).
The information provided by the authorities on the work of the human rights commissioners does not imply that the rights of the detainees were restored, the violations remedied, and the perpetrators were held accountable. It is not denied, however, that the rights were violated.
Exercise of the right to legal aid by detainees
The Russian authorities also do not specify what they mean by providing the necessary legal assistance.
The Code on Administrative Offenses does not provide for the mandatory participation of a defence lawyer, even in cases where administrative arrest may be imposed. The Constitutional Court Ruling No. 236-O/2015 did not exclude the possibility for the legislator to specify the provisions on the provision of free legal assistance in cases of administrative offences, which the legislators ignored. Therefore, the State does not provide such aid in administrative offence cases.
We also believe that the allegations about the provision of necessary legal assistance are in any case untrue, based on numerous reports about the non-admission of lawyers to the detainees, including in connection with the introduction of the «Fortress» plan (Annex 1). Court decisions also confirm these facts.
Restrictions imposed on Internet platforms in connection with rallies
The authorities cited the legal grounds for the restrictions imposed on Internet platforms. However, they omitted the assessment of necessity and proportionality of these restrictions and their compliance with article 19 of the Covenant. Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides guarantees similar to article 19 of the Covenant. The European Court of Human Rights, in its decisions, applies the same tests as the Human Rights Committee to assess the compliance of States parties with their obligations. The European Court has already recognised violations of the rights of organisers of public events to disseminate information about the conduct of actions (Elvira Dmitrieva v. Russia and, recently, Kurnosova v. Russia).
On 5 March 2021, Roskomnadzor, the Russian telecommunications watchdog, announced that it would slow down the speed of the Twitter platform for refusing to delete prohibited information. The slowdown lasted until May. Such restrictive measures are not based on any law.
The number of people arrested on criminal charges
The Russian authorities indicate that as of 01.03.2021, 12 suspects and people accused of committing crimes under article 318 of the Criminal Code were held in pre-trial detention centers in connection with mass unauthorised actions. According to our data, as of 1 March 2021, at least 24 people were in custody (Annex 2) accused of committing crimes under article 318 of the Criminal Code in criminal cases related to the winter protests.
The Russian authorities did not give the number of detainees in connection with charges under other Criminal Code articles (Annex 3) in connection with the winter protests.
Also, the Russian authorities did not justify the need for imprisonment before sentencing. Based on the application by the prosecutor’s office for placing a suspect in remand in one of the cases, the reason for choosing such a measure was «grounds to believe that in the absence of stable social and family ties [the person] can continue their illegal behaviour, expressed both in the commission of other crimes and in subsequent participation in a number of other unauthorised mass rallies taking place on the territory of St. Petersburg». The court granted the request.
Police use of force and its investigation
We were unable to confirm that it is the opinion of the Commissioner for Human Rights in the Russian Federation that the measures taken by the authorities to ensure law and order during the events of 23 and 31 January, as well as on 2 February 2021, were necessary and proportionate. However, for example, the Commissioner for Human Rights in St. Petersburg stated that the police used disproportionate force and non-lethal weapons against the protesters (including electric shockers), pointed to violations of the conditions of detention and the rights of detainees while serving administrative arrest, and expressed doubts about the mass administrative arrests for participating in the assemblies being justified.
At the same time, the State does not effectively investigate complaints of the use of force and torture by police officers against protesters. The Committee against Torture, a Russian NGO, represents several citizens who allege violence by police officers. Four people who were beaten up after their arrest tried to press charges, but their applications were dismissed. Another case for the use of violence during detention was dismissed, as the complaint allegedly did not contain information about the crime committed; despite the video recording of the arrest and medical documents, the prosecutor’s office confirmed the rejection had been justified.
On 9 February, Apologiya Protesta, a human rights group, reported that it had identified more than 130 cases of violence by police officers and represented the interests of 14 of the people whom the police beat.
In many cases, the very agencies whose employees were accused of violations carried out the «examinations». Agencies register complaints about the illegal use of force and special equipment not as reports of a crime (which imply a mandatory investigation) but as ordinary citizens’ appeals.
The Russian authorities point out that article 149 of the Criminal Code establishes liability for unlawful obstruction of an assembly. However, according to the Judicial Department of the Supreme Court, this article has never been applied.
Coronavirus restrictions
The government refers to the Council of Europe Secretary General’s Guidelines for member States entitled «Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis». The government claims that it follows from the document that «the right to freedom of assembly and association, as enshrined in article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, may be subject to those restrictions that are provided for by law for the protection of health.» In their summary, the authorities distorted the meaning of the position they referred to. In fact, this guide does not stop at establishing the purpose of the restrictions, but states that «these rights and freedoms may be subject only to such restrictions as are provided for by law and are proportionate to the legitimate purpose pursued, including the protection of health».
The authorities also cite the following quote from the «Key planning recommendations for mass gatherings in the context of the current COVID-19 outbreak» to justify their actions to disperse the protests and detain the protesters en masse: «in the context of the COVID-19 pandemic, the relevant authorities should ensure that spontaneous events are kept to a minimum, as these events probably do not have adequate planning to implement prevention and control measures to reduce the risk of transmission or the potential burden on health services.»
Firstly, the 31 January event was not spontaneous. By refusing to help the organisers (who submitted a notification in advance) with its implementation, the authorities themselves violated their obligations to protect public health.
Secondly, such events do not necessarily fall under the definition of a «mass event» in WHO terminology: «an event held for several hours in a large city of the country with a well-developed and modern health system would not necessarily be considered a mass event.» Moscow is undoubtedly such a city.
Thirdly, WHO continues: «Mass gatherings are not just entertainment events; [they can play an important role]. Since mass events have significant political, cultural, social and economic consequences, the authorities should assess the importance and necessity of the event and consider the possibility of holding it, provided that all the associated risks to public health are properly taken into account and mitigated.» The World Health Organization insists only on a thorough risk assessment in each case and taking appropriate measures. However, the Russian authorities do not claim that they carried such an assessment.
After all, references to the pursuit of public health aims are clearly irrelevant. In particular, in Moscow during the reference period, mass entertainment events and political events organised by the authorities were allowed. However, under international human rights law, the authorities’ approach to peaceful assemblies and any restrictions imposed must in principle be content-neutral and must not be based on the identity of the participants or their relationship with the authorities. The restriction of a right also cannot be considered as pursuing a legitimate goal, if such a goal, although listed among the permissible ones, is obviously irrelevant. The restriction of rights for purposes other than those provided is an abuse of power.
Conclusion
We would like to draw the attention of the Special Procedures to the fact that the Russian government’s response does not contain information about the guarantees provided to ensure that anti-coronavirus restrictions are not used arbitrarily to suppress the right to freedom of assembly. We believe that there are no such guarantees. In the practice of applying the Covenant, general restrictions on peaceful assembly are presumed to be disproportionate. The Government has not provided a single argument that would lead to a different conclusion.
In practice, heads of regional executive authorities are currently free to prohibit any form of political expression, and their acts are not subject to any effective control. For example, in Moscow and St. Petersburg, political gatherings, including solo pickets, are banned indefinitely, while mass sports events (2020 UEFA European Football Championship) and political events of the authorities (celebrating the anniversary of the annexation of Crimea) are held. The Supreme Court declared that the ban on solo pickets in St. Petersburg was legal. The Ministry of Justice also did not find any violations of citizens’ rights.
The Russian authorities did not provide specific information on the investigation of cases of the use of force and riot control gear and an assessment of whether its use was proportionate and necessary.
The Russian authorities further failed to cite the measures taken to enable the opposition to work without fear of persecution.
In the light of the above, we invite the Special Procedures to draw an adverse inference from the failure of the government to provide accurate and complete information, as well as from misleading references to international documents.
Annex 1
List of police stations where the «Fortress» plan was introduced (leading to non-admission of lawyers to detainees)
Annex 2
List of persons who were in custody as of 1 March on charges of committing a crime under Article 318 of the Criminal Code in connection with the winter protests
Annex 3
List of articles of the Criminal Code under which, according to our data, cases have been opened in connection with protest rallies