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- Year: 2009
- Language: English
- Document Type: International Commission Finding
- Topic: Assembly and Protest,Defending Civil Society
Human Rights Committee
Communication No. 1866/2009
Views adopted by the Committee at its 104th session,
12 to 30 March 2012
Submitted by: Olga Chebotareva (not represented by counsel)
Alleged victim: The author
State party: Russian Federation
Date of communication: 18 October 2008 (initial submission)
Document references: Special Rapporteur’s rule 97 decisio n,
transmitted to the State party on 19 February
2009 (not issued in document form)
Date of adoption of Views : 26 March 201 2
Subject matter: Refusal to issue permission to conduct pickets
Procedural issue: Degree of substantiation of claims
Substantive issues: Right to peaceful assembly and to a court hearing
by a competent, independent and impartial
Articles of the Covenant: 14, paragraph 1 , and 21
Article of the Optional Protocol: 2
United Nations CCPR /C/ 10 4/D/ 1866/2009
International Covenant on
Civil and Political R ights
26 April 20 12
Views of the Human Rights Committee under articl e 5,
paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights ( 10 4th session)
Communication No. 1866/2009 *
Submitted by: Olga Chebotareva (not represented by counsel)
Alleged victim: The author
State pa rty: Russian Federation
Date of communication: 18 October 2008 (initial submission)
The Human Rights Committee , established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 26 March 2012 ,
Having concluded its cons ideration of communication No. 1866/2009, submitted to
the Human Rights Committee by Olga Chebotareva under the Optional Protocol to the
International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author
of the communication and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication is Olga Chebotareva, a national of the Russian
Federation 1 born in 1980. She claims to be a victim of a violation by the Russian Federation
of her rights under articles 14 , paragraph 1 , and 21 of the International Covenant on Civil
and Political Rights. The author is not represented by counsel.
The facts as presented by the author
2.1 On 1 October 2007, the author and one Ms. Kozlovskaya requested the city
administration of Nizhny Novgorod to grant them permission to conduct a public event — a
picket at the city’s Gorky Square — which they were planning for 7 October 2007. The
stated purpose of the event was to mark the anniversary of the murder of Anna
* The following members of the Committee participated in the examination of the present
communication: Mr. Lazhari Bouzid, Ms. Christine Chanet, Mr. Ahmad Amin Fathalla, Mr. Cornelis
Flinterman , Mr. Yuji Iwasawa, Mr. Walter Kälin, Ms. Zonke Zanele Majodina, Ms. Iulia Antoanella
Motoc , Mr. Gerald L. Neuman, Mr. Michael O ’Flaherty, Mr. Rafael Rivas Posada, Sir Nigel Rodley,
Mr. Fabi án Omar Salvioli, Mr. Marat Sarsembayev, Mr. Krister Thelin and Ms. Margo Waterval.
1 The Optional Protocol entered into force for the Russian Federation on 1 January 1992.
Politkovskaya 2 and to protest against political repression in the country. They informed the
city administration that 45 persons would be participating in th e event.
2.2 On 2 Octob er 2007, the city administration informed the author and other organizers
that the city authorities were planning to hold events dedicated to Teachers ’ Day on 7
October 2007 . It stated that th ose events would be held at the same Gorky Square. As an
alterna tive, the city administration suggested conducting the picket ing event in another
2.3 The author submits that the proposed location was far from the city cent re. Because
of the remote location, the purpose of the picket would be thwarted. On t he same day they
receiv ed the city administration’s response, the author and other organizers informed the
city administration by fax that , in their view , the reasons for denying the request for the
picket were unsubstantiated. On 3 October 2007, the author a nd other organizers received
another letter from the city administration, which stated that no agreement had been
reached on the venue of the picket and , therefore, the organizers had no permission to hold
the event .
2.4 Also on 2 October 2007, the author and other organizers submitted a second request
to the city administration of Nizhny Novgorod, for an event in a different location. The
requested venue for this picket, to be held on 7 October 2007, was the intersection of
Bolshaya Pokrovskaya Street and Malaya Pokrovskaya Street. This second picket would
also mark the anniversary of the murder of Anna Politkovskaya. The organizers informed
the city administration that 30 persons would be participating in th e event.
2.5 On 3 October 2007, Mr. Shimovolos, o ne of the picket organizers, submitted
additional information on the second picket, indicating that the intended location for the
event was on the right side of the “Jan Jak” hotel, away from pedestrians and car traffic.
2.6 On 4 October 2007, the city adm inistration responded by again suggesting a
different location for the picket, as, according to it, the location suggested by the organizers
was an area of heavy vehicle and pedestrian traffic. Thus, according to the administration,
the picket at that loca tion would be a hazard to public safety. The city administration also
claimed that they could not locate the “Jan Jak” hotel on the corner of Bolshaya
Pokrovskaya Street and Malaya Pokrovskaya Street. Despite further clarifications provided
by the organize rs, the city administration refused to give permission. Consequently, neither
event was held as planned.
2.7 The author claims that the two events would have been conducted in accordance
with the law and would not have constituted a threat to the public sa fety, order, health or
morals of the population. She also claims that on 7 November 2007, the day of the planned
events, the city’s Gorky Square was empty and there were no other events held , despite the
city administration’s previous statement.
2.8 On an unspecified date, the author and other organizers filed a suit with the
Nizhegorodsky District Court , alleging violations of their right to freedom of assembly. On
18 December 2007, the Nizhegorodsky District Court issued a decision finding that the
action s of the city administration were not unlawful. The author claims that the court that
examined her claim was not a “competent, independent and impartial tribunal”, as it did not
address the claims regarding violations of the right to freedom of assembly. I nstead,
according to the author, the court focused on the lawfulness of the Nizhny Novgorod city
2 Anna Politkovskaya was a Russian journalist, author and human rights activist well known for h er
opposition to the Chechen conflict and then -President Vladimir Putin.
2.9 On 21 December 2007, the author filed an appeal against the decision of the
Nizhegorodsky District Court with the Nizhegorodsky Regional Court which, on 29
January 2008, rejected the appeal and upheld the decision of the lower district court.
2.10 The author submits that she also filed a supervisory review request on 27 May 2008
to the Nizhegorodsky Regional Court. On 3 June 2008, that Court rejected her appeal,
citing violations of procedural rules for filing supervisory review appeals.
2.11 On 16 June 2008, the author submitted a second supervisory review request to the
Nizhegorodsky Regional Court. On 24 July 2008, the court reje cted the second appeal,
finding that the lower court decisions had been authenticated by a notary public and not by
a judge, as required by law. The author claims that the court had had no intention of looking
into the merits of the case and rejected the a ppeal for purely technical reasons.
3.1 The author claims that, by refusing permission to conduct the pickets, the State party
violated her right to freedom of assembly, as guaranteed by article 21 of the Covenant.
3.2 She further claims th at the court hearing during which she challenged the city
administration’s decision was not conducted by a “competent, independent and impartial
tribunal” , thus violating her rights under article 14, paragraph 1 , of the Covenant. The
author submits that in stead of considering the restrictions placed on her right to peaceful
assembly, the court only looked into the lawfulness of the city administration’s actions.
3.3 The author also submits that during the supervisory appeal, the Nizhegorodsky
Regional Court never looked into the merits of her case, and rejected both supervisory
appeals on purely formal and technical grounds.
State party’s observations on admissibility and merits
4.1 By note verbale of 15 May 2009, the State party provided its observations on the
admissibility and merits. It submits that on 1 October 2007, the author requested permission
to conduct a picket at Gorky Square in Nizhny Novgorod. The State party submits that the
city administration was planning to hold other events dedicated to Teachers ’ Day.
Therefore, the organizers were given the option to conduct the picket at another location,
and were provided with several suggestions for alternatives in other parts of the city.
4.2 The State party also points out that , according to Federal Law No. 54 -FZ on
gatherings, meeting s, demonstrations, rallies and picket ing , the organizers of the public
event do not have a right to conduct such an event if the organizers and local authorities
cannot agree on the event’s location.
4.3 The State party further submits that on 2 October 2007, the city administration
received the second request to conduct the picket, this time at the crossroads of Malaya
Pokrovskaya and Bolshaya Pokrovskaya. According to the State party, the organizers did
not specify the exact location of the event. The State party argues that this intersection is
very busy with car and pedestrian traffic, and holding a public event there would jeopardize
public safety. The city administration again suggested alternative locations in othe r districts
of Nizhny Novgorod. The State party cites the same federal law on public events, arguing
that the organizers and the local authorities must agree on the event’s location.
4.4 The State party also argues that the Nizhegorodsky District Court cor rectly rejected
the author’s complaint, and the court came to the conclusion that no rights were violated,
and that the city administration did not impose an unlawful ban on the picket, but rather
suggested changing the location of the event. According to the State party, the author’s
allegations on the unlawful restriction of her right to organize a picket were examined by
the courts, and found to be groundless.
4.5 The State party further submits that both supervisory appeals filed by the author , on
27 Ma y 2008 and 16 June 2008, violated procedural rules for filing supervisory appeals, as
established by the Civil Procedure Code of the Russian Federation (chap. 41) . It contends
that the author had ample opportunity to correct the procedural mistakes and res ubmit the
supervisory appeal request, but that she failed to do so; she also failed to file a cassation
4.6 The State party also submits that due to these circumstances, the author’s
communication should be considered as an abuse of the right of su bmission, and should
also be declared inadmissible under article 5 , paragraph 2 (b), of the Optional Protocol.
Authors’ comments on the State party’s observations
5.1 By letter of 20 October 2009, the author recalls that , contrary to the State party’s
submission, she did in fact file the cassation appeal with the Nizhegorodsky Regional
Court, and that this appeal was rejected on 29 January 2008.
5.2 The author further states that the supervisory appeals were rejected by the
Nizhegorodsky Regional Court on formalistic grounds, such as the fact that the copies of
previous court decision s were authenticated by a notary, and not the court itself, and due to
the expiration of the six -month deadline for supervisory review claims, as introduced by a
new law, foll owing the examination of her case by the first -instance court. The author
contends that she has asked to have the deadline for supervisory appeal extended , without
success. As a result, the case could not be examined under the supervisory review
5.3 The author also claims that there are multiple decisions of the European Court of
Human Rights that indicat e that supervisory appeals cannot be considered as constituting an
“effective” domestic remedy .3
5.4 She also reiterates that the pickets were banned because the organizers were
planning to protest against political repression, and that, according to her, all requirements
of peaceful demonstrations were fulfilled. The author repeats her claims of the violation of
article 21 of the Covenant.
State party’s further observations
6.1 On 13 August 20 10 , the State party reiterate d that it was up to the author to correct
the mistake in her supervisory appeal of 27 May 2008, and that she had to appeal again.
The State party claims that the author did no t properly authenticate the lower court’s
decisions, which constitutes a violation of current legislation of the Russian Federation. The
State party recalls that both of the author’s appeals were therefore rejected without having
the case considered on the merits.
6.2 The State party further submits that the author is a lawyer by profession, and must
have been aware of all the requirements of the Constitution of the Russian Federation,
which requires strict adherence to the Constitution and laws of the Russ ian Federation ( art.
15, para . 2, of the Constitution). The State party submits that the author’s failure to follow
the requirements set out by law was purposeful, and that the author never wanted the courts
to look into merits of her case.
3 In support of her statement, the author provides reports by the Nizhny Novgorod Human Rights
Union, and from Mr. Shimovolos, one of the other organizers of the pickets in this ca se. She adds
that, in any event, the supervisory review is aimed mainly at checking whether serious procedural
violations have occurred in a specific case, and not at considering the merits of the case; furthermore,
equality of arms is not necessarily resp ected.
6.3 The State p arty therefore insists that the author abused her right of submission of an
individual communication, and that her case cannot be considered admissible also in the
light of the requirements of article 5, paragraph 2 (b) , of the Optional Protocol.
Additio nal comments by the author
7.1 On 28 September 2010, the author submitted additional comments. She argues that
court decisions become enforceable after the examination of a cassation appeal. The entry
into force of court decisions cannot be stayed during t he supervisory appeal process. The
author also invokes a ruling of the Constitutional Court of the Russian Federation in which,
according to her, the Court admits that the supervisory appeal cannot be considered as an
effective remedy .4
7.2 The author furt her argues that , based on articles 363 and 364 of the Civil Procedure
Code of the Russian Federation, the grounds for supervisory appeal are very limited. Also,
the author cites a European Court of Human Rights case in which the Court considered the
superv isory appeal as an optional remedy, because it is a discretionary procedure that
depends on authorities and not the complainant .5
7.3 The author admits that article 378 of the Civil Procedure Code requires the courts to
authenticate the copies of the conte sted decisions. Such a requirement is also confirmed by
resolution No. 36 of the Supreme Court of the Russian Federation. The author argues that
such a resolution only regulates the activities of courts and cannot be considered a law. The
author also cites a law on notaries public, which does not prohibit authentication of court
decision s by notaries public.
Issues and proceedings before the Committee
Consideration of admissibility
8.1 Before considering any claims contained in a communication, the Huma n Rights
Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not
it is admissible under the Optional Protocol to the Covenant.
8.2 The Committee notes, as required by article 5, paragraph 2 (a) , of the Optional
Protocol, that the same matter is not being examined under any other procedure of
international investigation or settlement.
8.3 With regard to the requirement laid down in article 5, paragraph 2 (b), of the
Optional Protocol, the Committee takes note of the State party’s argument that the author
failed to follow the procedural rules when filing two separate supervisory appeals. The
Committee notes, however, that the author filed a cassation appeal with the Nizhegorodsky
Regional Court, which upheld the decision of the first instance court .6 The Committee
recalls its previous jurisprudence, according to which supervisory review procedures
against court decisions which have entered into force constitute an extraordinary remedy,
4 It should be noted, however, that in its ruling of 5 February 2007, the Constitutional Court refers to
the supervisory appeal as constituting an “additional measure of protection under law ”, and stops
short of calling it “ineffective”. The Court also refers to the jurisprudence of the European Court of
Human Rights when dealing with the issue of supervisory review (in which the European Court of
Human Rights does call the supervisory appeal process “ineffective ”).
5 The author cites Tumilovich v. Russia , application No. 47033/99, judg ement of the European Court of
Human Rights of 22 June 1999.
6 Copies of the decisions of those courts were submitted by the author to the attention of the
dependent on the discretionary power of a judge or prosecutor ,7 and which, thus, do not
need to be exhausted for purposes of admissibility. In these circumstances, the Committee
considers that, in the present case, it is not precluded, by article 5, paragraph 2 (b) , of the
Optional Protocol, fro m examining the communication.
8.4 The Committee notes the author’s claims that , in violation of the requirements of
article 14 of the Covenant, her case was examined neither by a competent nor an impartial
or independent court. She contends that the first instance court judge also failed to address
in substance the issues she had raised. She further submits that the cassation and
supervisory appeal judges failed to examine her case on the merits. The State party has in
turn replied that all decisions in th e author’s case were lawful and fully grounded, and that
the author’s allegations on the unlawful restriction of her right to organize a picket were
duly examined by the courts, and found to be groundless . The Committee recalls that the
guarantees of artic le 14, paragraph 1 , not only apply to courts and tribunals determining
criminal charges or rights and obligations in a suit at law, but must also be respected where
domestic law entrusts a judicial body with a judicial task .8 The Committee observes that th e
relevant Nizhny Novgorod courts that heard the author ’s cases were composed of full -time
professional judges . It also observes that the author has not sufficiently put forward specific
elements which could call into question the competence, impartiality or independence of
those judges or shown elements that could indicate that the application of domestic law was
clearly arbitrary or amounted to a manifest error or denial of justice or that the court
otherwise violated its obligation of independence or imp artiality .9 In these circumstances,
the Committee considers that the author has failed to substantiate her claim under article 14 ,
paragraph 1, for the purposes of admissibility, and that accordingly, this part of the
communication is inadmissible under ar ticle 2 of the Optional Protocol.
8.5 The Committee considers that the author’s claim under article 21 of the Covenant is
sufficiently substantiated for the purposes of admissibility, and declares it admissible.
Consideration of the merits
9.1 The Human Rights Committee has considered the present communication in the
light of all the information received, in accordance with article 5, paragraph 1, of the
9.2 The Committee notes the author’s allegation that her right to freedom of assem bly
under article 21 was violated, since she was arbitrarily prevented from holding a peaceful
assembly (picket). In this context, the Committee recalls that the right to peaceful assembly
as set forth in article 21 of the Covenant is not absolute but may be subject to limitations in
certain situations. The second sentence of article 21 of the Covenant requires that no
restrictions may be placed on the exercise of the right to peaceful assembly other than those
that are (a) imposed in conformity with the la w and ( b) necessary in a democratic society in
7 See, inter alia, communications No. 836/199 8, Gelazauskas v. Lithuania , Views adopted on 17 March
2003, and No. 1537/2006 , Gerashchenk o v. Belarus , decision o f inadmissibility adopted on 23
8 See general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair
trial (Official Records of the General Assembly, Sixty -second Session, Supplement No. 40 , vol. I
(A/62/40 (Vol. I)), annex VI), pa ra. 7; and communication No. 1015/2001, Perterer v. Austria , Views
adopted on 20 July 2004, para. 9.2.
9 See general comment No. 32, para. 26.
the interests of national security or public safety, public order ( ordre public ), the protection
of public health or morals or the protection of rights and freedoms of others .10
9.3 In the present case, the Co mmittee must consider whether the restrictions imposed
on the author ’s right to freedom of assembly were justified under any of the criteria set out
in article 21. The Committee notes the State party’s assertion that the restrictions were in
accordance wit h the law. However, the State party has not demonstrated to the Committee’s
satisfaction that the impeding of the two pickets in question was necessary for the purpose
of protecting the interests of national security or public safety, public order ( ordre p ublic ),
the protection of public health or morals or the protection of the rights and freedoms of
others . Moreover, the State party never refuted the author’s claim that no event actually
occurred at Gorky Square on 7 October 2007, and that the city admini stration’s claim of a
competing Teachers ’ Day event was in fact a mere pretext given in order to reject the
author’s request. In the se circumstances, the Committee concludes that in the present case
the State party has violated the author’s right under art icle 21 of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the view that the
facts before it disclose a violation of the author ’s right under article 21 of the Covenant.
11. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is
under an obligation to provide the author with an effective remedy, including compensation
and reimbursement of any legal costs paid by the author. The State party is also under an
obligation to take steps to prevent similar violations in the future.
12. Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committe e to determine whether there has been a
violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory or subject to its
jurisdiction the rights recognized in the Covenant and to provide an effective and
enforceable remedy when a violation has been established, the Committee wishes to receive
from the State party, within 180 days, information about the measures taken to give effect
to the Committee ’s Views. T he State party is also requested to publish the present Views
and to have them widely disseminated in the official language of the State party.
[Adopted in English, French and Spanish, the English text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s
annual report to the General Assembly.]
10 See communication No. 1604/2007, Zalesskaya v. Belarus , Views adopted 28 March 2011,