Professional Documents
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Zhdanov and Others v. Russia
Zhdanov and Others v. Russia
JUDGMENT
STRASBOURG
16 July 2019
FINAL
16/10/2019
This judgment has become final under Article 44 § 2 of the Convention. It may
be subject to editorial revision.
ZHDANOV AND OTHERS v. RUSSIA JUDGMENT 1
PROCEDURE
1. The case originated in three applications (nos. 12200/08, 35949/11
and 58282/12) 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 four Russian nationals and
three Russian non-profit organisations whose names are listed in the
Appendix (“the applicants”), on 3 March 2008, 20 May 2011 and 20 August
2012 respectively.
2. The applicants were represented by lawyers whose names are listed in
the Appendix. The Russian Government (“the Government”) were
represented initially 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 applicants alleged, in particular, that the refusal to register
associations set up to promote and protect the rights of lesbian, gay,
bisexual and transgender (LGBT) people in Russia had violated their right
to freedom of association and had amounted to discrimination on grounds of
sexual orientation. The applicants in application no. 58282/12 also alleged a
violation of their right of access to a court.
4. On 11 March 2011 and 22 March 2016 the Government were given
notice of the above complaints.
5. In addition to written observations by the Government and the
applicants, third-party comments were received from the Human Rights
Centre of Ghent University and jointly from the European Human Rights
Advocacy Centre (EHRAC), the European Region of the International
Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and
the International Commission of Jurists (ICJ), which the President had
2 ZHDANOV AND OTHERS v. RUSSIA JUDGMENT
THE FACTS
1. Background information
7. In April 2005 the first applicant opened a gay nightclub which started
to organise weekly gay parties.
8. On an unspecified day the police, masked and armed, stormed into the
club, ordered that everyone should lie down on the floor and dragged the
club visitors into a police bus. Several days later the lease for the premises
of the nightclub was suddenly terminated without any explanation.
9. In August 2005 a group of gay activists notified the Tyumen
Administration of their intention to hold a gay march on 5 September 2005.
At the press conference of 17 August 2005 the head of the Interior
Department of the Tyumen Region said that he had been extremely
astonished when he had learnt that a gay march was being planned in
Tyumen. He continued: “In my personal opinion, Tyumen is neither the
Netherlands, nor Amsterdam. One cannot hold a gay march in our town.”
Representatives of the Orthodox Church also spoke publicly against the
march. The Tyumen Administration refused permission to hold a gay
march.
10. On 20 August 2005 it was publicly announced that a regional public
association named “Rainbow House” (the second applicant) had been
created with the aim of defending the rights of LGBT people.
26. On the same day the Institute of Governmental and Legal Studies of
the Tyumen State University also found that the second applicant was an
extremist organisation. Firstly, the expression “the protection of citizens’
sexual rights” in the second applicant’s name was insulting to the moral,
national and religious feelings of citizens. The Constitution guaranteed the
right to respect for private life, which covered sexual relations. Any
interference in the sphere of private life, including for its protection, was
contrary to the Constitution and breached citizens’ rights. It followed that
the sole purpose of the founders of the second applicant was to insult the
morality and the religious feelings of others. Secondly, the distribution of
printed, video and other material by the second applicant might incite
religious discord because a majority of the traditional confessions in Russia
viewed homosexuality negatively. Open propaganda of homosexuality
would cause social tension and might provoke a violent response. Thirdly,
“non-traditional sexual orientation” was a broad term that could include
paedophilia, which was a criminal offence in Russia. Therefore, the second
applicant’s activities might threaten public order. Finally, the support of
persons suffering from HIV/AIDS, proclaimed as one of the aims of the
second applicant, might violate the rights of those persons to confidentiality
and respect for private life. It was impossible for a public association
intending to advertise its activities to ensure the confidentiality and
inviolability of private life.
27. On 7 November 2007 the Tsentralnyy District Court of Tyumen
found that the decision of 1 June 2007 to refuse registration had been lawful
and justified. It held that the refusal of registration did not breach the
applicants’ right of association because the second applicant could continue
to function without State registration. The decision of 1 June 2007 had not
declared the second applicant an extremist organisation. It had instead found
that there were indications of extremism in its articles of association and
that it did not therefore comply with the requirements of domestic law.
28. The first applicant appealed.
29. On 17 December 2007 the Tyumen Regional Court upheld the
judgment of 7 November 2007 on appeal, finding that it had been lawful,
well reasoned and justified. It held:
“The first-instance court correctly rejected the plaintiff’s complaint, finding that [the
Tyumen registration authority’s] decision to refuse legal-entity status to [Rainbow
House] had been lawful and had not breached the plaintiff’s rights and legitimate
interests. A legal analysis of that public association’s articles of association submitted
for registration by the plaintiff revealed that its stated aims and objectives were
contrary to the applicable laws, and in particular to the Russian Constitution.
This finding of the court is correct as it is based on the circumstances of the case as
correctly established on the basis of the evidence in the case file, and on the applicable
legal provisions.
In particular, the first-instance court correctly noted in its judgment that the
registration authority had not declared [Rainbow House] an extremist organisation. It
ZHDANOV AND OTHERS v. RUSSIA JUDGMENT 7
only found that some provisions of its articles of association contained indications of
extremism. That finding served as a lawful basis for the refusal of legal-entity status
in accordance with section 23(1)(1) and (2) of the Public Associations Act.
The judgment lists these indications of extremism: propaganda of non-traditional
sexual orientation which might [undermine] the security of the State and of society,
create conditions for inciting social or religious hatred or enmity, or undermine the
foundations of the family and marriage, contrary to Articles 29 and 38 of the
Constitution of the Russian Federation, Articles 1 and 12 of the Family Code and
section 16 of the Public Associations Act.
The arguments in the appeal submissions are based on an incorrect interpretation of
the applicable legal provisions and an incorrect assessment of the relevant
circumstances. They cannot therefore be taken into account.
The plaintiff’s argument that [the registration authority’s] decision had breached his
rights as a member of a public association is unfounded. After correcting the
above-mentioned defects in the articles of association, he may reapply for registration
of legal-entity status.”
30. Further applications for registration were refused in May and
November 2010 for the same reasons as before.
31. The first applicant is the founder and the executive director of the
second applicant, an autonomous non-profit organisation.
32. In November 2009 the first applicant decided to create an
autonomous non-profit organisation called Movement for Marriage Equality
with the aims of defending human rights in the sphere of marriage relations,
combating discrimination on the grounds of sexual orientation and gender
identity and promoting equality for LGBT people, in particular through the
legalisation of same-sex marriage.
33. On 14 December 2009 the first applicant submitted an application to
register the second applicant with the Moscow department of the Federal
Registration Service of the Ministry of Justice (hereafter “the Moscow
registration authority”).
34. On 12 January 2010 the Moscow registration authority refused to
register the second applicant, finding that its articles of association were
incompatible with Russian law. In particular, the second applicant’s aims as
described in paragraph 3.1 of the articles of association were incompatible
with section 2(2) of the Non-profit Organisations Act and Article 12 of the
Family Code (see paragraphs 56 and 69 below). Moreover, the second
applicant’s rights as set out in paragraph 5.1 of its articles of association
were those belonging to public associations. Paragraph 11.1, stating that the
organisation could cease its activities in the event that it was to be
reorganised, was incompatible with the Civil Code, which provided that a
reorganisation did not always result in cessation of activities.
8 ZHDANOV AND OTHERS v. RUSSIA JUDGMENT
Paragraphs 12.1 to 12.3 provided that changes could be made to the second
applicant’s articles of association instead of to its constitutional documents.
Some clauses contained in paragraph 7.1 describing the second applicant’s
sources of income were also incompatible with the law. The application for
registration mentioned only one founder of the second applicant, while its
articles of association mentioned that it had been founded by citizens. There
was also a mistake in the address indicated in the application for
registration.
35. On 5 April 2010 the first applicant challenged the refusal before the
Gagarinskiy District Court of Moscow. He submitted, in particular, that the
refusal to register the second applicant violated his freedom of association
as guaranteed by Article 30 of the Russian Constitution and Article 11 of
the Convention. He argued that the second applicant’s aims were
compatible with section 2(2) of the Non-profit Organisations Act. It pursued
the social aim of promoting equality and combating discrimination, and the
aim of defending human rights, specifically the right to marry for LGBT
people. As regards the alleged incompatibility with Article 12 of the Family
Code, the fact that the second applicant intended to promote an amendment
to that Article to legalise same-sex marriage could not serve as grounds for
refusing its registration. The first applicant also argued that the remaining
grounds for the refusal of registration had not had any basis in law.
Paragraph 5.1 of the articles of association did not mention any activities
that were prohibited by law for non-profit organisations. Paragraph 11.1
only mentioned the possibility of ceasing activities in the event of a
reorganisation in accordance with Russian law; it did not provide for the
automatic cessation of activities. Paragraphs 12.1 to 12.3 provided that
changes could be made to the second applicant’s articles of association,
which was its only constitutional document. Paragraph 7.1 did not mention
any sources of income prohibited by law. Furthermore, although the first
applicant admitted that there had indeed been a discrepancy between the
application for registration, which mentioned one founder, and the articles
of association, mentioned “founders” in the plural, that had been a technical
error that could be easily corrected through a special procedure provided for
by law. Lastly, he argued that the address indicated in the application had
been correct.
36. On 20 July 2010 the Gagarinskiy District Court dismissed the first
applicant’s complaint. It held that section 2(2) of the Non-profit
Organisations Act, enumerating permissible aims for non-profit
organisations, was open-ended. It followed that a non-profit organisation
could pursue any aims except for making profit, provided they were
compatible with public order and morality. The court further held as
follows:
“[The second applicant pursues aims] incompatible with basic morality as it aims to
promote legalisation of same-sex marriage and to increase the number of citizens
ZHDANOV AND OTHERS v. RUSSIA JUDGMENT 9
belonging to sexual minorities, thereby undermining the conceptions of good and evil,
of sin and virtue established in society. If these aims are attained it may trigger a
public reaction and result in a decrease in the birth rate.”
The District Court further held that in accordance with national tradition,
reflected in Article 12 of the Family Code, marriage was the union of a man
and a woman with the aim of giving birth to and raising children. The
second applicant’s aim of promoting legalisation of same-sex marriage was
therefore incompatible with established morality, with the State policy of
protecting the family, motherhood and childhood and with national law. The
District Court noted that that finding did not breach Russia’s international
obligations because, in particular, Article 12 of the Convention provided
that the right to marry was to be exercised in accordance with national laws.
The District Court also found that the other grounds for the refusal of
registration advanced by the Moscow registration authority had been lawful
and justified.
37. On 20 December 2010, following an appeal by the applicants, the
Moscow City Court upheld that judgment.
38. The first, second and third applicants are the founders of the fourth
applicant, a public movement. The first applicant is the president of the
board of directors of the fourth applicant.
39. In October 2011 the first, second and third applicants decided to
create Sochi Pride House with the aims of developing sports activities for
LGBT people, combating homophobia in professional sport, creating
positive attitudes towards LGBT sportspeople, and providing a forum for
the latter during the Sochi Olympic Games.
40. On 19 October 2011 they submitted an application for registration of
the fourth applicant with the Krasnodar department of the Federal
Registration Service of the Ministry of Justice (hereinafter “the Krasnodar
registration authority”).
41. On 16 November 2011 the Krasnodar registration authority refused
to register the fourth applicant, finding that its articles of association were
incompatible with Russian law. In particular, the name of the fourth
applicant contained words that did not exist in the Russian language, in
breach of section 1(6) of the State Language Act (see paragraph 70 below).
The articles of association did not indicate which type of association the
fourth applicant was. Paragraph 4.2 mentioned, in breach of the domestic
law, that legally incapacitated persons could not be members. The
application for registration also contained several mistakes.
42. On 6 December 2011 the applicants challenged the refusal before the
Pervomayskiy District Court of Krasnodar. They argued, firstly, that it was
common practice to give public associations original names containing
10 ZHDANOV AND OTHERS v. RUSSIA JUDGMENT
the creation of an association to defend LGBT rights. They also argued that
sexual orientation was not a matter of choice and that its activities could not
therefore increase the number of LGBT people. In any event, Sochi Pride
House did not intend to resort to any propaganda of homosexuality. The
refusal of registration had therefore amounted to discrimination on grounds
of sexual orientation. Lastly, the applicants submitted that the District Court
had relied on grounds that had not been cited by the Krasnodar registration
authority in its refusal of registration of 16 November 2011. As those new
grounds related to Sochi Pride House’s aims, it was clear that registration
would be refused even if the applicants corrected the purely formal defects
mentioned by the Krasnodar registration authority. The applicants then
repeated the arguments they had advanced in their complaint of 6 December
2011.
49. On 28 March 2012 the Pervomayskiy District Court returned the
short version of the appeal submissions to the applicants, finding that the
appeal had been lodged on 26 March 2012, that is, to say outside the
one-month time-limit established by law. The applicants had not asked for
an extension of the time-limit. Nor had they submitted the stamped
envelope showing the date on which they had received the judgment of
20 February 2012.
50. On 4 April 2012 the Pervomayskiy District Court returned the
complete version of the appeal submissions, finding that it had been
received by the District Court on 3 April 2012, outside the time-limit
established by law. The applicants had not asked for an extension of the
time-limit. Nor had they submitted the stamped envelope showing the date
on which they had received the judgment of 20 February 2012.
51. The applicants appealed against the decisions of 28 March and
4 April 2012. They submitted that under Article 321 § 2 of the Code of
Civil Procedure, the one-month time-limit for lodging an appeal had started
to run on the day when a written copy of the first-instance judgment had
been made available to the parties (see paragraph 72 below). A written copy
of the judgment of 20 February 2012 had been deposited with the court’s
registry on 5 March 2012. Therefore, the time-limit for lodging an appeal
had expired on 5 April 2012. In any event, even if the time-limit had started
to run on the date the judgment had been pronounced, they had still
complied with the time-limit as they had dispatched the appeal submissions
by post on 19 March 2012, that is to say, less than a month after the
pronouncement of the judgment of 20 February 2012. They submitted a
copy of the postal receipt confirming the dispatch date; they also argued that
the date of dispatch could be found on the stamp on the envelope. They also
enclosed a copy of the stamped envelope confirming the date of receipt of
the judgment of 20 February 2012.
52. On 24 July 2012 the Krasnodar Regional Court upheld the decision
of 28 March 2012 on appeal, repeating the reasons set out in that decision
12 ZHDANOV AND OTHERS v. RUSSIA JUDGMENT
and finding that it had been lawful, well reasoned and justified. It did not
reply to the applicants’ argument that they had dispatched the appeal on
19 March 2012.
53. It appears that the appeal against the decision of 4 April 2012 has
never been examined.
61. The Public Associations Act (Federal Law no. 82-FZ of 19 May
1995) provides that a public association may obtain legal-entity status
through State registration or carry on its activities without State registration
and without legal-entity status (section 3(4)).
62. A public association may take one of the following organisational
forms: a public movement, a public foundation, a political party, and so
forth (section 7).
63. The establishment and functioning of public associations whose aims
or activities are extremist is prohibited (section 16(1)).
64. A public association is established at a general conference, during
which its articles of association are adopted and managing bodies are
elected. From that moment on the public association acquires all rights and
obligations under this Act, except the rights of a legal entity which are
acquired at the moment of State registration (section 18(3) and (4)).
65. State registration of a public association may be refused, inter alia,
in the following cases: (a) its articles of association do not comply with the
requirements of Russian law; (b) the documents required for registration are
incomplete or defective; or (c) the association’s name is insulting to the
moral, national or religious feelings of citizens. The refusal of registration
may be appealed against to a higher authority or a court. Such a refusal does
not prevent a new application for registration, provided that the defects
identified have been remedied (section 23).
66. All public associations may disseminate information about their
activities; hold public events; defend their rights and the rights of their
members before the State and municipal authorities; make proposals and put
forward initiatives to the State and municipal authorities concerning issues
relating to their stated aims; and perform other activities allowed by law. In
addition to the above activities, public association with legal-entity status
may participate in the decision-making process of the State and municipal
authorities; found mass-media outlets and carry out publishing activities;
defend any person’s interest before the State and municipal authorities;
14 ZHDANOV AND OTHERS v. RUSSIA JUDGMENT
make proposals and put forward initiatives to the State and municipal
authorities concerning any issues; and participate in elections and referenda
(section 27). Public associations with legal-entity status may also own
property (section 30).
E. Family Code
70. The State Language Act (Federal Law no. 53-FZ of 01 June 2005)
provides that when the Russian language is used as the State language it is
not permissible to use words or expressions which are incompatible with the
modern academic norms of the language, except when it is necessary to use
foreign words that have no adequate equivalent in Russian (section 1(6)).
71. The 2002 Code of Civil Procedure provides that a procedural action
for which a time-limit has been set may be performed before midnight on
the last day of the specified period. The time-limit is complied with if the
complaint, document or money concerned has been dispatched by post
before midnight on the last day of the period in question (Article 108 § 3).
72. An appeal may be lodged within a month of the date when the
first-instance judgment has been delivered in its finalised form (Article 321
§ 2).
73. Ruling no. 13 of the Presidium of the Supreme Court of 19 June
2012 explains that the one-month time-limit for appeal starts to run from the
day after a reasoned first-instance judgment has been delivered. If a
reasoned judgment is not ready on the date of pronouncement, the judge
pronounces the operative part of the judgment and informs the parties of the
date when the reasoned judgment will be made available to them. The
time-limit is complied with if the appellant has dispatched the appeal
submissions by post before midnight on the last day of the period in
question. In that case the date is established by a postmark, a postal receipt
or any other document confirming the dispatch date (paragraph 6).
11. Member states should take appropriate measures to effectively protect defenders
of human rights of lesbian, gay, bisexual and transgender persons against hostility and
aggression to which they may be exposed, including when allegedly committed by
state agents, in order to enable them to freely carry out their activities in accordance
with the Declaration of the Committee of Ministers on Council of Europe action to
improve the protection of human rights defenders and promote their activities.
12. Member states should ensure that non-governmental organisations defending
the human rights of lesbian, gay, bisexual and transgender persons are appropriately
consulted on the adoption and implementation of measures that may have an impact
on the human rights of these persons.”
THE LAW
76. The Government submitted that Mr Alekseyev had abused the right
of individual application by insulting the judges of the Court on his social
networking accounts. The relevant Convention provision reads as follows:
Article 35
“3. The Court shall declare inadmissible any individual application submitted under
Article 34 if it considers that:
(a) the application is ... an abuse of the right of individual application;
...”
77. By letter of 21 January 2019 the Government informed the Court
that after the delivery of the judgment in the case of Alekseyev and Others
v. Russia (nos. 14988/09 and 50 others, 27 November 2018), Mr Alekseyev,
frustrated by the rejection of his claims in respect of non-pecuniary damage,
had published insulting comments about the Court and the judges who had
adopted that judgment on his Instagram and VKontakte social networking
accounts. The Government submitted that those comments had amounted to
an abuse of the right of individual application.
78. In reply, Mr Alekseyev denied having any personal social
networking accounts.
ZHDANOV AND OTHERS v. RUSSIA JUDGMENT 17
A. General principles
79. The Court reiterates that the concept of “abuse” within the meaning
of Article 35 § 3 (a) of the Convention must be understood in its ordinary
sense according to general legal theory – namely, the harmful exercise of a
right for purposes other than those for which it is designed (see Miroļubovs
and Others v. Latvia, no. 798/05, § 62, 15 September 2009; Petrović
v. Serbia (dec.), no. 56551/11 and 10 other applications, 18 October 2011;
and De Luca v. Italy, no. 43870/04, § 35, 24 September 2013).
80. The Court further reiterates that it has applied that provision, in
particular, in two types of situations. Firstly, an application may be rejected
as an abuse of the right of petition within the meaning of Article 35 § 3 (a)
if it was knowingly based on untrue facts (see Gross v. Switzerland [GC],
no. 67810/10, § 28, ECHR 2014, with further references). Secondly, it may
also be rejected in cases where an applicant used particularly vexatious,
contemptuous, threatening or provocative language in his communication
with the Court – whether this was directed against the respondent
Government, their Agent, the authorities of the respondent State, the Court
itself, its judges, its Registry or members thereof. However, it does not
suffice that the applicant’s language was sharp, polemical or sarcastic; to be
considered an abuse, it must exceed the limits of normal, civic and
legitimate criticism. If after a warning by the Court the applicant ceased to
use the expressions in question, expressly withdrew them or, better still,
offered an apology, the application may no longer be rejected as an abuse of
the right of petition (see Miroļubovs and Others, cited above, § 64, with
further references).
81. However, the notion of abuse of the right of application under
Article 35 § 3 (a) of the Convention is not limited to those two instances and
other situations can also be considered as an abuse of that right. In principle
any conduct on the part of an applicant that is manifestly contrary to the
purpose of the right of individual application as provided for in the
Convention and which impedes the proper functioning of the Court or the
proper conduct of the proceedings before it can be considered as an abuse of
the right of application (see Podeschi v. San Marino, no. 66357/14, § 86,
13 April 2017). For example, the Court found that an applicant’s conduct
had been contrary to the purpose of the right of individual petition in cases
where the applicant had lodged a succession of ill-founded and querulous
complaints, creating unnecessary work which was incompatible with the
Court’s real functions, and which hindered it in carrying them out (see
M. v. the United Kingdom, no. 13284/87, Commission decision of
15 October 1987, Decisions and Reports (DR) 54, p. 214; Philis v. Grece,
no. 28970/95, Commission decision of 17 October 1996, Decisions and
Reports (DR) 54, p. 214; and Petrović, cited above); where the applicant
had obtained evidence in support of his case before the Court by force in
18 ZHDANOV AND OTHERS v. RUSSIA JUDGMENT
blatant violation of the rights and the values protected by the Convention
(see Koch v. Poland (dec.), no. 15005/11, 7 March 2017); or where the
applicant had not meticulously abided by all the relevant rules of the
procedure and thereby had failed to show a high level of prudence and
meaningful cooperation with the Court (see, for example, Bekauri
v. Georgia (preliminary objection), no. 14102/02, §§ 22-24, 10 April 2012,
and Eskerkhanov and Others v. Russia, nos. 18496/16 and 2 others,
§§ 23-29, 25 July 2017). It also found, in the context of critical statements
made by the applicant party’s leader to the press, that “vexing
manifestations of irresponsibility and a frivolous attitude towards the
Court”, amounting to contempt, might also lead to the rejection of an
application as abusive (see The Georgian Labour Party v. Georgia (dec.),
no. 9103/04, 22 May 2007).
82. The Court notes at the outset that the Government did not name the
social networking accounts to which they referred, except by mentioning
that they were hosted by Instagram and VKontakte, or indeed cite any of the
allegedly insulting statements. Mr Alekseyev, a well-known LGBT activist,
is, however, a public figure who has given many interviews to the media
and whose social networking accounts have hundreds of followers. These
accounts can easily be found by typing his name and the name of the
relevant social network in an Internet search engine. They contain personal
information about him – for example, that he is an LGBT activist, the head
of the GayRussia.Ru project and the founder of the Moscow Pride
Movement – and personal photographs, as well as information about his
previous and pending cases before the Court, including scanned copies of
the Court’s original letters to him. Moreover, while stating that those were
not his “personal” accounts, Mr Alekseyev did not deny that he had been the
author of the statements concerning the Court published on them.
83. The Court further observes that the statements about the Court and
its judges published on the accounts in question are virulently and
personally offensive and threatening. In particular, Mr Alekseyev published
the judges’ photographs with such captions as “alcoholic”, “drug addict”,
“corrupt”, and “this crone owes me 100,000 euros ... God will punish her”.
He also called the judges, among other terms, “European bastards and
degenerates”, “freaks”, “venal scum” and “idiotic”. He wished that they
would “snuff it as soon as possible like dogs”, threatened to “torture [them]
... with litres of vodka” and announced that “it [was] time to set fire to the
European Court of Human Rights”. He also stated: “We should not have
given wenches the right to vote ... They should be cooking soup”. These
statements clearly exceed the limits of normal, civic and legitimate
criticism.
ZHDANOV AND OTHERS v. RUSSIA JUDGMENT 19
84. The Court takes note of the fact that the above comments were made
in reaction to the Court’s judgment in the case of Alekseyev and Others
(cited above), that is outside the context of the present case. However, it
also takes into account that, by publishing the impugned statements on
social networking accounts accessible to all, Mr Alekseyev sought to ensure
the widest possible circulation of his accusations and insults and thereby
provided evidence of his determination to harm and tarnish the image and
reputation of the institution of the European Court of Human Rights and its
members (see Duringer and Grunge c. France (dec.), nos. 61164/00 and
18589/02, 4 February 2003, and Řehák v. the Czech Republic (dec.),
no. 67208/01, 18 May 2004). The Court therefore sent a letter to
Mr Alekseyev referring to all his pending applications and warning him that
such statements might amount to an abuse of right of petition.
Mr Alekseyev has not however withdrawn his statements which are still
visible on his social networking accounts. Most importantly, he has since
published new offensive statements about the Court, in particular describing
it as “a rubbish heap” and calling its judges “European corrupt scum” and
“homophobic”. These statements published after the warning that explicitly
mentioned the present applications can therefore be considered to be
connected with them.
85. The Court considers that by continuing to publish insults about the
Court and its judges after the warning, the applicant has shown disrespect to
the very institution to which he had applied for the protection of his rights.
Indeed, it is unacceptable to seek the protection of a court in which the
applicant has lost all trust. His conduct constitutes “a vexing manifestation
of irresponsibility and a frivolous attitude towards the Court”, amounting to
contempt (see The Georgian Labour Party, cited above), and is therefore
contrary to the purpose of the right of individual application, as provided for
in Articles 34 and 35 of the Convention. It constitutes an abuse of the right
of application within the meaning of Article 35 § 3 (a) of the Convention.
86. It follows that the complaints lodged by Mr Alekseyev must be
declared inadmissible as an abuse of the right of application, pursuant to
Article 35 §§ 3 (a) and 4 of the Convention. This finding of inadmissibility,
exclusive to Mr Alekseyev, does not prevent the Court from examining the
merits of the case, and in particular of applications nos. 35949/11 and
58282/12 in so far as brought by the other applicants.
A. Admissibility
88. The Court has on several occasions found that Article 6 was
applicable under its civil head to domestic proceedings concerning the rights
to freedom of assembly or association (see, for example, APEH
Üldözötteinek Szövetsége and Others v. Hungary, no. 32367/96, §§ 34-36,
ECHR 2000-X; Kuznetsov and Others v. Russia, no. 184/02, §§ 79-85,
11 January 2007; Sakellaropoulos v. Greece (dec.), no. 38110/08, 6 January
2011; and Lashmankin and Others v. Russia, nos. 57818/09 and 14 others,
§ 494, 7 February 2017). It does not see any reason to depart from that
finding in the present case.
89. The Court notes that this complaint 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.
B. Merits
they had claimed. The postal receipt submitted by them had been
insufficient proof of the date of dispatch because it had not been clear from
it that it concerned the short version of the appeal submissions. Moreover,
they had paid the court fee on 25 March 2012.
92. Lastly, referring to the case of Itslayev v. Russia (no. 34631/02,
9 October 2008), the Government submitted that the requirement to lodge a
judicial claim within a statutory time-limit was not in itself incompatible
with Article 6 § 1 of the Convention. Such a requirement pursued the
legitimate aim of proper administration of justice and of compliance, in
particular, with the principle of legal certainty. Given that the national
courts had refused to examine the applicants’ appeal on the merits because
of their failure to comply with the statutory time-limit for appealing, their
right of access to a court had not been violated.
93. The applicants submitted that the judgment of 20 February 2012 had
been deposited with the District Court’s registry on 5 March 2012. The
one-month time-limit had started to run on that date, as before it the
applicants had not had any opportunity to study the reasons why their claim
had been rejected. The time-limit could not in any event have started to run
on 20 February 2012, as a copy of the judgment had not been sent to them
by the District Court until 27 February 2012. The District Court had
therefore known that they had received the judgment after 27 February
2012. However, even assuming that the one-month time-limit had started to
run on 20 February 2012, the applicants had complied with it as they had
dispatched their appeal submissions by post on 19 March 2012, as
confirmed by a postal receipt.
103. The applicants complained that the refusals to register the three
applicant organisations had violated their freedom of association,
guaranteed by 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
24 ZHDANOV AND OTHERS v. RUSSIA JUDGMENT
exercise of these rights by members of the armed forces, of the police or of the
administration of the State.”
A. Admissibility
113. As regards the Government’s argument that the first applicant had
not contested before the domestic courts some of the grounds for the refusal
of registration of 1 June 2007 concerning the irregularities in the documents
submitted for registration, the Court considers that this argument is so
closely linked to the substance of the applicants’ complaint that it falls to be
examined on the merits under Article 11 of the Convention. It therefore
decides to join this part of the Government’s objection to the merits.
(ii) Application no. 58282/12
114. The Court has already found that the refusal to examine the
applicants’ appeal on the merits amounted to a breach of their right of
access to a court (see paragraphs 98 to 102 above). The Court has in
particular found that the applicants complied with the formal requirements
for lodging appeals as established by domestic law. It therefore dismisses
the Government’s objection as to non-exhaustion of domestic remedies.
(b) Standing to apply to the Court and victim status
115. The Court notes that under Russian law, public associations, such
as Rainbow House and Sochi Pride House, can exist without registration,
whereas non-profit organisations, such as Movement for Marriage Equality,
are considered to exist from the moment of State registration only.
However, the Court’s case-law does not make any distinction between
applicant organisations on the basis of whether they legally exist under the
national law at the moment their application is lodged with the Court. The
Court has frequently recognised the standing of unregistered or dissolved
organisations to submit an application without enquiring into whether the
organisation is considered to legally exist in some form under the national
law after its dissolution or refusal of registration (see, among many other
authorities, Refah Partisi (the Welfare Party) and Others v. Turkey [GC],
nos. 41340/98 and 3 others, §§ 49-50, ECHR 2003-II; Republican Party of
Russia v. Russia, no. 12976/07, §§ 91 and 100, 1 April 2011; Sindicatul
“Păstorul cel Bun” v. Romania [GC], no. 2330/09, §§ 81 and 149, ECHR
2013 (extracts); Association of Victims of Romanian Judges and Others
v. Romania, no. 47732/06, §§ 11 and 20, 14 January 2014; and Islam-Ittihad
Association and Others v. Azerbaijan, no. 5548/05, §§ 31 and 41,
13 November 2014). It follows that all three applicant organisations have
the standing to lodge an application with the Court about the refusal of their
registration.
116. The Court further notes that decisions by the authorities to refuse to
register, or to dissolve, a group have been found to affect directly both the
group itself and also its presidents, founders or individual members (see
Jehovah’s Witnesses of Moscow and Others v. Russia, no. 302/02, § 101,
10 June 2010, with further references; see also Islam-Ittihad Association
ZHDANOV AND OTHERS v. RUSSIA JUDGMENT 27
and Others, cited above, § 58). It follows that all the applicants may claim
to be victims of the alleged violations of Article 11.
(c) Conclusion
117. The Court notes that this complaint 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.
B. Merits
rights. There had also been other irregularities in the documents submitted
for registration.
121. As regards application no. 58282/12, the Government submitted
that the articles of association of Sochi Pride House had also been
incompatible with Russian law. Firstly, its name contained words in a
foreign language. Such names were only allowed for commercial
organisations and could not be used for non-commercial ones. The
applicants’ argument that foreign words were often used in the names of
non-commercial organisations had been misconceived because those
organisations had been registered before 2006, when registration had been
performed by the tax authorities, which had no competence to verify
whether an organisation’s name was compatible with Russian law. There
had also been other irregularities in the documents submitted for
registration. The domestic courts had confirmed that the refusal of
registration had been lawful. They had found, in particular, that the aims of
Sochi Pride House had been incompatible with basic morality and State
family policy and that its activities would amount to propaganda of
non-traditional sexual orientation. Such activities might undermine Russian
national security, sovereignty and territorial integrity and incite social and
religious hatred and enmity; they were therefore extremist in nature. In the
Government’s opinion, there was no need to submit any proof for the
finding that LGBT advocacy might lead to a decrease in population. Given
the nature of childbearing, it was absurd to deny it. The Government also
submitted that propaganda of non-traditional sexual relations aimed at
minors was an administrative offence. The Constitutional Court had found
that punishment of such propaganda was compatible with the Russian
Constitution as it was aimed at protecting family values, as well as the
health, morals and intellectual development of children.
122. Lastly, the Government submitted that the applicants in all three
applications had never reapplied for registration, although they could have
done so after correcting the irregularities identified by the registration
authority.
(b) The applicants
123. The applicants submitted that the ability to establish a legal entity
in order to act collectively in a field of mutual interest was one of the most
important aspects of freedom of association, without which that right would
be deprived of any meaning (they referred to Church of Scientology
Moscow v. Russia, no. 18147/02, 5 April 2007). They argued that the
refusals of registration had therefore amounted to an interference with the
freedom of association. That interference had been unlawful, had not
pursued any legitimate aim and had, moreover, been disproportionate.
124. The applicants submitted, firstly, that under the Russian
Constitution, only those public associations could be prohibited which
ZHDANOV AND OTHERS v. RUSSIA JUDGMENT 29
find that in such a case the interference did not pursue any legitimate aim,
instead of examining the case from the point of view of the proportionality
of the interference. By refraining from censuring an aim or an underlying
motivation which was itself incompatible with the Convention or with the
values of a democratic society and by concentrating its assessment on the
proportionality of the interference instead, the Court would be sending a
wrong signal that such a blatantly illegitimate aim was to be accorded
weight in the balancing exercise and would therefore confer a certain
legitimacy on it. Instead the Court should send a clear message that if an
aim was illegitimate under the Convention, it could not justify any
restriction of the Convention rights.
134. The Human Rights Centre of Ghent University therefore urged the
Court to attentively examine whether the interferences in the present case
had pursued any legitimate aims.
(ii) The EHRAC, ILGA-Europe and the ICJ
135. The EHRAC, ILGA-Europe and the ICJ submitted, jointly, that it
was impossible to protect individual rights if citizens were unable to create
associations to defend common needs and interests. The right to freedom of
association was therefore a unique human right, respect for which served as
a barometer of the general standard of human rights protection and the level
of democracy in the country concerned. Any restrictions of that right
therefore required a strong justification and, in particular, the scope of
permissible legitimate aims should be interpreted narrowly.
136. As regards the aim of protecting morals, the interveners submitted
that there had been only a few occasions where it had been successfully
invoked to justify a restriction on the right to freedom of association. In the
cases of Lavisse v. France (no. 14223/88, Commission decision of 5 June
1991, Decisions and Reports no. 70, p. 229) and Larmela v. Finland
(no. 26712/95, Commission decision of 28 May 1997), the Commission had
accepted that, given that the associations had advocated practices that were
illegal under national law – namely surrogate motherhood and consumption
of cannabis – the refusal to register them had been justified by the aim of
protecting public decency and morals. The Court had, however, since
changed that approach, finding that an association could be established to
pursue a change in the law, including the legalisation of conduct that was
illegal, so long as the means to be used and the outcome to be achieved were
compatible with fundamental democratic principles, including in particular
non-discrimination, pluralism and respect for human rights (the interveners
cited United Communist Party of Turkey and Others v. Turkey, 30 January
1998, Reports 1998-I, and Refah Partisi (the Welfare Party) and Others,
cited above).
137. Relying on the United Nations Human Rights Committee’s opinion
in Fedotova v. Russia (Communication no. 1932/2010,
32 ZHDANOV AND OTHERS v. RUSSIA JUDGMENT
and only convincing and compelling reasons can justify restrictions on that
freedom. Any interference must correspond to a “pressing social need”;
thus, the notion of “necessary” does not have the flexibility of such
expressions as “useful” or “desirable” (see Gorzelik and Others, cited
above, §§ 94-95, with further references). In determining whether a
necessity within the meaning of paragraph 2 of this Convention provision
exists, the States have only a limited margin of appreciation, which goes
hand in hand with rigorous European supervision embracing both the law
and the decisions applying it, including those given by independent courts
(see Sidiropoulos and Others, cited above, § 40).
141. When the Court carries out its scrutiny, its task is not to substitute
its own view for that of the relevant national authorities but rather to review
the decisions they delivered in the exercise of their discretion. This does not
mean that it has to confine itself to ascertaining whether the respondent
State exercised its discretion reasonably, carefully and in good faith; it must
look at the interference complained of in the light of the case as a whole and
determine whether it was “proportionate to the legitimate aim pursued” and
whether the reasons adduced by the national authorities to justify it are
“relevant and sufficient”. In so doing, the Court has to satisfy itself that the
national authorities applied standards which were in conformity with the
principles embodied in the Convention and, moreover, that they based their
decisions on an acceptable assessment of the relevant facts (see United
Communist Party of Turkey and Others, cited above, § 47, and Gorzelik and
Others, cited above, § 96).
(b) Application to the present case
parties, even when they annoy or give offence to persons opposed to the
lawful ideas or claims that they are seeking to promote. Their members
must be able to hold meetings without having to fear that they will be
subjected to physical violence by their opponents. Such a fear would be
liable to deter other associations or political parties from openly expressing
their opinions on highly controversial issues affecting the community. In a
democracy the right to counter-demonstrate cannot extend to inhibiting the
exercise of the right of association (see Ouranio Toxo and Others v. Greece,
no. 74989/01, § 37, ECHR 2005-X (extracts), with further references).
163. The positive obligation to secure the effective enjoyment of the
right to freedom of association and assembly is of particular importance for
persons holding unpopular views or belonging to minorities, because they
are more vulnerable to victimisation (see Bączkowski and Others, cited
above, § 64). The Court considers that reference to the consciousness of
belonging to a minority, the preservation and development of a minority’s
culture or the defence of a minority’s rights cannot be said to constitute a
threat to “democratic society”, even though it may provoke tensions. The
emergence of tensions is one of the unavoidable consequences of pluralism,
that is to say the free discussion of all political ideas. Accordingly, the role
of the authorities in such circumstances is not to remove the cause of
tension by eliminating pluralism, but to ensure that the competing groups
tolerate each other (see, mutatis mutandis, Ouranio Toxo and Others, cited
above, § 40; see also Serif v. Greece, no. 38178/97, § 53, ECHR 1999-IX,
and Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005-XI).
164. It follows that it was the duty of the Russian authorities to take
reasonable and appropriate measures to enable the applicant organisations to
carry out their activities without having to fear that they would be subjected
to physical violence by their opponents. The Court observes that the
domestic authorities had a wide discretion in the choice of means which
would have enabled the applicant organisations to function without
disturbance, such as for instance making public statements to advocate,
without any ambiguity, a tolerant, conciliatory stance, as well as to warn
potential aggressors of possible sanctions (see, for similar reasoning,
Identoba and Others v. Georgia, no. 73235/12, § 99, 12 May 2015). There
is no evidence that the Russian authorities considered taking any such
measures. Instead, they decided to remove the cause of tension and avert a
risk of disorder by restricting the applicant’s freedom of association. In such
circumstances the Court cannot accept that the refusal to register the
applicant organisations was “necessary in a democratic society”.
165. There has therefore been a violation of Article 11 of the
Convention in respect of all the applicants.
40 ZHDANOV AND OTHERS v. RUSSIA JUDGMENT
166. The applicants complained that the refusals to register the applicant
organisations amounted to discrimination on grounds of sexual orientation.
They relied on Article 14 of the Convention, taken in conjunction with
Article 11. Article 14 reads as follows:
“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
1. Applicability of Article 14
167. As the Court has consistently held, Article 14 complements the
other substantive provisions of the Convention and its Protocols. It has no
independent existence since it has effect solely in relation to “the enjoyment
of the rights and freedoms” safeguarded thereby. Although the application
of Article 14 does not presuppose a breach of those provisions – and to this
extent it is autonomous – there can be no room for its application unless the
facts at issue fall within the ambit of one or more of them. The prohibition
of discrimination enshrined in Article 14 thus extends beyond the
enjoyment of the rights and freedoms which the Convention and the
Protocols thereto require each State to guarantee. It applies also to those
additional rights, falling within the general scope of any Convention Article,
for which the State has voluntarily decided to provide. This principle is well
entrenched in the Court’s case-law (see, among many other authorities,
E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008).
168. It has not been disputed between the parties that the case falls
within the ambit of Article 11 of the Convention. Indeed, the Court has
found that the contested decisions amounted to an interference with the
applicants’ right to respect for their freedom of association (see paragraph
144 above). It follows that Article 14 of the Convention, taken in
conjunction with Article 11, is applicable in the present case.
2. Victim status
169. The Government submitted that Rainbow House (application
no. 12200/08) could not claim to be a victim of discrimination on grounds
of sexual orientation.
170. The Court notes that it has previously found that a
non-governmental organisation could claim to be a victim of a violation of
Article 14 on account of such a personal characteristic as religion. For
example, a religious association could exercise on behalf of its adherents the
ZHDANOV AND OTHERS v. RUSSIA JUDGMENT 41
3. Conclusion on admissibility
173. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
rights (see paragraphs 145 and 146 above). It is immaterial that the domestic
authorities also referred to other grounds relating to various irregularities in
the registration documents. The Court reiterates in this connection that in
discrimination cases where more than one ground forms part of an overall
assessment of the applicant’s situation, grounds should not be considered
alternatively, but cumulatively. Consequently, the illegitimacy of one of the
grounds has the effect of contaminating the entire decision (see
E.B. v. France, cited above, § 80).
181. Given that the applicant organisations’ aim of promoting LGBT
rights was a decisive factor leading to the decision to refuse them
registration, they suffered a difference in treatment on grounds of sexual
orientation (see, for similar reasoning, E.B. v. France, cited above, §§ 89
and 90).
182. The Court has already found above that the refusals to register the
applicant organisations on the ground that they promoted LGBT rights
cannot be said to be reasonably or objectively justified.
183. The foregoing findings also give rise to a violation of Article 14 of
the Convention taken in conjunction with Article 11.
184. Lastly, the Court has examined the other complaints submitted by
the applicants in application no. 12200/08 and, having regard to all the
material in its possession and in so far as the complaints fall within the
Court’s competence, it finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
A. Damage
C. Default interest
193. 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.
G.A.S.
F.A.
ZHDANOV AND OTHERS v. RUSSIA JUDGMENT – SEPARATE OPINION 47
9. The judgments and decisions of this Court are always weighty, and
often controversial. The Court is to a certain degree accountable to the
public; discussion – negative or positive – about its work is inevitable and
necessary in a democratic society. We believe therefore that the Court
should be extremely careful not to set a precedent that could have a chilling
effect on the active engagement of the public with the Court.
10. Indeed, it is difficult to understand what purpose rejecting
Mr Alekseyev’s application serves. On the contrary, we are disturbed by the
risk of appearing to retaliate against the applicant’s offensive remarks about
the formation that heard the case. After all, “not only must Justice be done;
it must also be seen to be done”1. To put it differently, the public should not
be given the impression that the Court is engaging in revenge instead of
delivering justice.
11. In particular, we are concerned that the majority characterised
Mr Alekseyev’s use of social networking accounts as an effort “to ensure
the widest possible circulation of his accusations and insults”, which in their
view is “evidence of his determination to harm and tarnish the image and
reputation of the institution of the European Court of Human Rights and its
members” (see paragraph 84 of the judgment).
12. In today’s digital age, with its vastly different and complex
challenges to freedom of expression, we are hesitant to declare – so simply
and with no limitations – that Mr Alekseyev’s Instagram account belongs to
the public domain. How far does this public domain reach? If an applicant’s
Instagram account has twenty followers, is that still public space? Will the
Court take into account what the applicant wrote on his personal blog, on
his NGO websites, or even in his emails? Even if the applicant deletes the
posts at issue, they will remain accessible for years on the Internet; how far
back in time is the Court going to scrutinise the posts on an applicant’s
social networking account? Now that the Court does not require a nexus
between the offensive statements and the actual case at hand, would future
applications from Mr Alekseyev all be inadmissible because of these posts?
13. Furthermore, the majority do not tell us exactly which statements
have cost Mr Alekseyev the right to seek recourse before the Court. Some of
his statements constituted mere expressions of frustration, while others
amounted to serious defamation. An indiscriminate, general condemnation
of all critical statements about this Court sends a worrisome message to the
domestic courts and future applicants.
14. The decision today comes dangerously, unacceptably close to
scrutinising an applicant’s online presence and conduct outside the Court.
Moreover, we fear that this decision could be an invitation to Governments
APPENDIX