Abstract
Given the increasing restrictions and rigorous approval procedures for the exercise of freedom of assembly in various parts of the globe, one-person pickets often remain the only available form of voicing one’s opinion. This is the case of Russia, where citizens use solo protests as an opportunity to join together: they can take turns or stand at a distance from one another, forming a ‘group one-person picket’. These realities pose an interesting question: are such group solo protests characterised as freedom of expression or assembly? Through examining the legal nature of solo protests in the practice of international human rights bodies, this article aims to reveal a deeper understanding of the two freedoms involved and the interplay between them.
1. Introduction
Throughout the summer of 2019, in Moscow and other Russian cities, one could often spot a lone figure silently holding a poster outside State executive offices and key public places. That figure would often not stand unsupported. Indeed, sometimes, there would be another protestor at a distance holding a poster with similar demands, or there would be another participant, ready to take the place of the protester. To illustrate, on 7 June 2019, several hundreds of Muscovites formed a long line waiting for their turn to participate in a solo picket in support of Ivan Golunov, a political prisoner. 1 People waited near the police headquarters to express their civic position individually, and not as a group, in order to avoid the existing legal requirements for public gatherings. Even though some of the participants were arrested, they were promptly released without charge. 2 A few days later, on 19 June, a similar instance of one-man protests occurred in relation to the Khachaturyan case: participants lined up and waited for their turn to hold a sign demanding a review of the case of three sisters accused of patricide. 3
This ‘strange form of assembly’ 4 has become a preferred way of protest among Russians: under the current legislation, it is the only kind of demonstration that does not require prior approval from the State. Such ‘gatherings’ of citizens who share an idea and seek to convey it to the authorities are not regarded as an assembly because formally, participants are displaying their opinion individually and remain at a distance from one another.
This phenomenon of Russian ‘group’ solo protests poses an interesting question: are such gatherings classified within the framework of freedom of expression or freedom of assembly, and how can this legal classification be explained? In the context of peaceful protest, the two freedoms often arise simultaneously and are closely linked. While scholars have noted this inherent inter-connection, they have not yet addressed it through the lens of solo protests. 5 However, such an examination can reveal a deeper understanding of these rights and their scope, which is important for ensuring their effective protection.
To explore the two freedoms in the context of one-man, or solo protest, this article first outlines the nature of the freedoms in question. Next, while highlighting the link between them in the context of political protest and participation, it separates assembly from expression by discerning the key elements of an assembly. Thereafter, it discusses the case of Russia, where members of the public often resort to solo pickets as a form of protest that is still legally allowed without prior approval. In order to gain an understanding of legal classification of solo protests, the article turns then to the practice of the United Nations Human Rights Committee (UN HRC) and the European Court of Human Rights (ECtHR). While their commentaries suggest that the framework of freedom of speech provides a high and broad level of protection for protesters, it is argued here that the essence of assembly, as an amplifier of opinion capable of affecting the systematic political changes, should not be neglected.
This article focuses on one particular context which faces restrictions on freedom of assembly, yet, similar regulatory procedures can be observed in regions across the globe. As governments are stifling expression and peaceful assembly, this increasing censorship has become a focal point of concern for human rights bodies in recent years. States’ responses to the COVID-19 pandemic that limit mass gatherings put further potential threats to assembly rights. Given this context, this research presents a timely step for an examination of the key civic freedoms in question.
2. Defining the scope of expression and assembly
2.1 Protection in international law and the nature of the two freedoms
In international law, the freedoms of expression and of peaceful assembly are granted wide recognition. Just like other rights related to political participation, they are instrumental to securing and protecting other human rights. As key elements of personal liberty, they bear an important role in individuals’ defence against State arbitrariness 6 and are essential to the functioning of a pluralistic society. 7 In this sense, they are true indicators of a democratic system.
In particular, the freedom of expression can be found in the main international and regional treaties, 8 which recognise the importance of the free flow of information as a fundamental right. Given the deeply social character of this freedom, the UN HRC described it as an ‘indispensable [condition] for the full development of the person’. 9 It protects individuals’ liberty to communicate with others, receive and impart information openly and without State interference. As Wortman notes, without an opportunity to reflect and communicate our sentiments upon every topic, it is impossible to achieve progress in knowledge. 10
While freedom of speech focuses on the very expression of opinion, peaceful assembly arises in the context of public gatherings. It is a right which ensures protection of group interests, and at the same time, it is possessed by each member of society. 11 Peaceful assemblies may take many forms including demonstrations, meetings, vigils, strikes, rallies and sit-ins. 12 Due to the possible disruptive effect of mass gatherings and given the need to maintain public order and preserve other citizens’ safety, international law only recognises assemblies of peaceful character.
Despite their inherent value, freedom of assembly and expression also form the basis for the exercise and defence of other rights. Due to their function of enabling individuals to exchange ideas and voice their grievances or aspirations, together with the freedom of association, they are often characterized as forming the ‘right to protest’. 13
2.2. Key elements distinguishing assembly from expression
Especially within the context of peaceful protest and political participation, there is a close link between freedom of assembly and expression. It has been observed that applications to the ECtHR claiming an interference with the right to protest, often invoke both rights. 14 The very restriction on assemblies can be, at least in part, ascribed to the authorities’ reaction to the content of the message voiced by the participants, as has been noted in the Stankov case. 15 Moreover, the ECtHR has viewed assembly as a form of expression and explained that ‘the protection of personal opinions, secured by Article 10, is one of the objectives of the freedom of assembly and association as enshrined in Article 11’. 16 Yet, the existing definitions of ‘assembly’ allow us to discern its key distinguishing elements.
First, an assembly has been described as a physical presence of a group aligned by the same or a common agenda, as opposed to being mere bystanders. 17 In this respect, the OSCE Guidelines on Freedom of Peaceful Assembly characterise an assembly as ‘the intentional gathering of a number of individuals in a publicly accessible place for a common expressive purpose’. 18 Similarly, the HRC defines it as ‘intentional, temporary gatherings of several persons for a specific purpose’. 19 As Salat explains, it implies ‘that the persons have some link with each other beyond the mere coincidence of being at the same place at the same time’. 20 The requirement of an intention to gather for a specific purpose has been highlighted by the ECtHR in Tatár and Fáber v Hungary. In this case, the two applicants organised a brief political performance near the Hungarian Parliament. As the activists were approached by several journalists for an interview, the authorities classified their act as unauthorised assembly. 21 The Court, however, classified their actions as expression guaranteed by Article 10 and specified that an event only qualifies as assembly if the participants gather with an intention to use collective public presence as a means of expression. 22
This principle can also been seen in the HRC Communication of Kvienmaa v Finland, 23 albeit the outcome faced an opposition in a dissenting opinion. In this case the applicant, together with twenty-five members of her organisation, initiated a distribution of leaflets and raised protest banners amid a crowd that gathered at a square on the occasion of a Foreign Head of State visit. 24 The HRC highlighted the importance of a common agenda but did not find this element in the actions of Kvienmaa and her group. 25 In his dissent, Kurt Herndl pointed out a contradictory logic in the Committee’s reasoning, stating that the Committee had overlooked the intent requirement. 26 He questioned that that if denouncing policies of a Head of State ‘does not constitute a demonstration, indeed a public gathering within the scope of Article 21 of the ICCPR, what else would constitute a ‘peaceful assembly’ in that sense?’ 27
Second, an assembly has been characterised by the participants’ physical presence at a particular location. While the expression of views is protected by freedom of speech and can even be performed even online, it is the bodily presence ‘which creates a public sphere’. 28 Jarman and Hamilton explain that an act of physically gathering is the most accessible form of public expression, which indicates that the message is addressed to the public at large or the government. 29 In this respect, physical presence in itself serves as a means of expression. 30
Third, an assembly implies a number of participants. The Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has repeatedly pointed out that individuals enjoy freedom of assembly collectively. 31 Also the HRC has supported the numeral approach to assembly in its Draft General Comment No.37 on Article 21 (the right to peaceful assembly). 32 Only a gathering of persons intending to express themselves collectively falls within the scope of this freedom, while a single protester enjoys comparable protection under Article 19 of the ICCPR. 33 This collective aspect indicates the shared commitment to the cause. 34
Having outlined the nature of the two freedoms, this section has provided a set of key elements that distinguish one right from another. While scholars note the close link between the two rights, especially in the context of peaceful protest, they have not yet addressed the relationships between these rights through examining solo protests. The following overview describes the realities of such protests in Russia, where the boundary between assembly and expression rights becomes blurred and where a scholarly enquiry is warranted.
3. The case of Russian solo protests: ‘a strange form of assembly’
3.1. Freedom of assembly under the Russian laws: the stringent notification rule
The tendency of Russians to join together through one-person pickets has emerged as a response to a restrictive regime for holding public meetings and rallies. In spite of firm constitutional guarantees for peaceful assembly, 35 over the past decade, Russian legislation has undergone numerous amendments that have significantly eroded individuals’ civil rights. The government’s stranglehold on free speech that followed the post-electoral 2011-2012 mass protests were part of a broader campaign directed against civil society. 36 Since then, the assembly legislation has become increasingly more punitive. Today, unsanctioned protests are often followed by harsh consequences ranging from administrative responsibility to criminal charges.
Public gatherings in Russia are regulated by the Federal Law No. 54-FZ on Assemblies, Meetings, Demonstrations, Rallies and Pickets (‘The Law on Assembly’). 37 Under Article 7(3) of this law, an organiser of a public event has to comply with the notification rule by providing the executive organs with information about the place and time of event, its purpose and form, an approximate number of participants, and the means of ensuring the safety of an event. Yet, this notification rule is not limited to simply informing the authorities. Under Article 12(1)(2), an executive body evaluates the planned place and time of event and, if found incompatible with the legislative requirements, proposes changes. Most importantly, the Law on Assembly lists several conditions for executives to explicitly disapprove an event. 38
In 2009, the Russian Constitutional Court examined the notification rule and found no flaws in it, since Article 5(5) of the Law on Assembly requires the authorities to provide for ‘motivated suggestions’ to the changes of time and place of event. 39 Yet, according to Russian NGO OVD-info, the notification requirement essentially works as an approval regime for a public event. 40 As OVD-info further explains in its report, the vagueness of the requirements set out in Article 7(3) allows the executive bodies to ban the event: any mistake in the notification form amounts to non-compliance with the requirements, permitting the authorities to cease further examination. Since the legislation lacks further clarifications, the local authorities may present any justification for establishing non-compliance with the Law on Assemblies. Thus, the Federal Law on Assemblies grants the authorities the power to either approve the protests or pronounce them ‘unauthorised’, effectively creating an avenue for censorship.
As the Council of Europe Commissioner for Human Right noted, the current trend in the Russian Federation shows intolerance toward any kind of public expression, be it an unauthorised assembly or a single-person protest. 41 The authorities do not wish to approve public events, while persons participating in unauthorised assembly are being arrested even while acting lawfully. 42 For instance, the anti-corruption protests sweeping through Russia on 26 March and 12 June 2017 and the Voters’ Boycott marches of 28 January 2018 were classified as unsanctioned, resulting in hundreds being detained. 43
3.2 One-person pickets: allowed, but brought closer to the notion of ‘assembly’
Unlike mass public events, one-person pickets, which can be described as static and silent holding up of posters in a public place, do not require prior notification and can take place spontaneously. 44 Yet, since 2012, even this form of protest has been subjected to an array of provisions that imposed limitations on it. In particular, the Federal Law No. 65-FZ 45 introduced a minimum distance of 50 meters between solo picketers, while allowing regional authorities to enlarge this distance. Importantly, Article7.1(1) empowered the courts to decide whether the picketing action united by a common theme, but carried out by several solitary participants can be deemed as a mass public event. 46
Following the 2012 amendments, detentions of single picketers, subsequent fines, and sometimes arrests have become a common practice in Russia. The Federal Law No. 65-FZ significantly broadened the scope of responsibility of the organisers and participants of unauthorised public events. Since 2012, under Article 20.2 of the Administrative Offences Code, an organiser may be found liable not only for non-compliance with the rules on organisation of public events, but also for violating rules of notification and involving minors in assemblies. These acts may lead to a fine or even detention for up to 15 days. Since 2014, under Article 212.1 of the Criminal Code, repeated violation of the Law on Assembly may lead to a criminal charge and imprisonment up to 5 years. A court may decide to reclassify simultaneous single person pickets as a single unauthorised mass gathering and, as a result, the participants may be charged under administrative or criminal law.
Thus, even a single-person picket can be characterised as an unauthorised mass gathering. The current law intentionally blurs the border between a mass public event and several simultaneous one-person pickets, while the authorities prefer to classify events as the former. Not only are there restrictions to traditional forms of assembly, but the law also effectively stifles attempts to share a common opinion through one-person pickets. It establishes mechanisms to prevent any attempt to show the general public that the view expressed by a solo protestor is shared by many. In other words, even in the realm of one-person pickets the law additionally prevents any visibility of those united by shared opinions.
3.3 Single-person pickets in practice: are elements of an assembly present?
The emergence of single-person pickets into the realm of public assemblies is a two-way process: not only do the legislators increasingly characterise them as mass gatherings, but members of the public themselves use pickets as an opportunity to gather. As Lankina and Savrasov note, such cases demonstrate how a picket ‘can be reported as involving only one participant, but in fact be part of a broader campaign with a larger number of activists’. 47
Dewaegenaere distinguishes three formats in which single-person pickets occur in practice. The first type is performed by one participant standing alone – except, perhaps, for some unintended spectators. In the second case picketers are standing 50 meters apart from one another. Thirdly, the participants can take turns replacing each other, or line up waiting for their turn, thus creating a one-person picket united by a common theme. 48 It has to be noted, that such lines could reach several hundreds of people and such a ‘collective’ picket can take place for hours. The latter type of collective picketing occurred, for instance, in Moscow in September 2019 to oppose the jailing of an actor, Pavel Ustinov, on false charges of assault. 49 Another instance involved the abovementioned pickets in support of Ivan Golunov and Khachaturyan sisters.
All of these examples required an immediate public response. United by a shared perception of injustice, members of society sought to express their collective opinion in the most accessible form – mass solo protests. Such ways of expressive conduct seem perfectly in line with a definition of an ‘assembly’: a physical presence of a group aligned by the same agenda. 50 This form of collective expression is particularly powerful as it allows for representation of the opinion shared by many, not one. 51
Russian group solo protests can be described as lines, almost crowds, of those waiting to hold up a poster following a person in front of them, after he or she finishes holding a sign expressing the same view. The difference from an assembly is that expressive conduct is not simultaneous, and people waiting in line are prohibited from raising signs or chanting protest slogans. They are allowed to express their view once they replace a participant in front of them. Nevertheless, the queue of people waiting to participate in a solitary picket fits the requirements of an assembly as participants are physically present at one location. In a recent mass solo protest that took place on 14 February 2020, around 150 persons lined up waiting for their turn to hold a sign. 52 They were later joined by 400 more participants. Every solo protestor was photographed, and each photo was published online to demonstrate the scale of the event. 53
Simultaneous solo pickets where participants stand at a distance from one another also have elements of collective expression. People may be separated by a considerable distance, yet to the eye of an onlooker, they are still participants of a single event. Interestingly, as part of a so-called Metro-pickets campaign in Moscow and St. Petersburg, organisers filled the distance gap between the picketers by taking photos of the protestors and sharing them online to demonstrate the collective nature of the protest. 54
Persons joining together are united by the same concern and seek to amplify their opinion by voicing it in ‘unison’. They may not be holding actual signs while waiting, yet the intent is still evident to the broader public. What matters, is that the presence of people who intend to express the same opinion on issues of public importance is in itself expressive conduct. 55
4. Legal characterisation of ‘mass’ solo pickets by international bodies
While the practice of international bodies does not involve many cases on group solo pickets, a number of relevant cases exist. The overview of this practice will allow us to understand how the Russian situations can be classified and gain an understanding of how international bodies view the rights in question.
4.1. The Position of the un HRC
As most UN HRC cases demonstrate, the Committee views restrictions on one-person pickets within the framework of freedom of expression covered by Article 19 ICCPR. For instance, in Coleman v Australia, the author of the Communication was charged for violation of the local law on the use of public spaces after he held up a flag and gave a public address at a pedestrian mall. The Committee deemed Mr Coleman’s claim under Article 21 inadmissible, since he was acting alone and had not provided evidence of elements of a public assembly. 56 Similarly, in Sviridov v Kazakhstan, the Committee explained that assembly regime is inconvenient for a single-person protest as ‘the act of a single individual peacefully conveying a message […] should not be subject to the same restrictions as those applying to an assembly’. 57
While this legal characterisation is perfectly logical and supported by the Committee’s practice, 58 still in a few other cases, single-person pickets have been classified under Article 21. For instance, in M.T. v Uzbekistan, 59 the author claimed violations of both Articles 19 and 21, and since no admissibility challenges had been raised by the State, the claim was upheld under Article 21. 60 Similarly, in Poplavny v Belarus, the Committee expressly linked a one-person protest to freedom of assembly, stating that ‘requesting the organiser of a one-person picket to contract additional services in order to hold a picket imposes a disproportionate burden on the right of peaceful assembly and the right to freedom of expression’. 61
Yet again, in an almost identical case of Stambrovsky v Belarus, the HRC did not find a violation of Article 21. 62 It is obvious that the Committee itself does not invoke assembly rights, unless the author had not done so. 63 This lack of consistency was addressed by Ms Sarah Cleveland in her concurring opinion, where she noted that unlike in Stambrovsky, ‘[i]n approximately 20 cases, the Committee has found that application of the Law on Mass Events of Belarus violated the rights of individuals under articles 19, 21 and/or 22 to the freedoms of expression, assembly and association’. 64 Notably, in all the Communications, national authorities qualified any act of public expression as an assembly, thus extending the restrictions on acts which are not normally seen as an assembly in a traditional sense.
While inconsistency can be observed already in the Committee’s reasoning on ‘classic’ one-person protest, when it comes to a protest action involving three persons, the UN HRC has not sufficiently elaborated its position. In particular, in Zalesskaya v Belarus, the author together with two other participants were distributing newspapers on the street, when they were arrested and their actions were regarded as an unauthorized march. The author, inter alia, asserted that the Belarus Law is ambiguous and does not define precisely the term ‘mass event’, nor does it specify ‘the lower limit of the number of participants in order for an event to be qualified as “mass” event’. 65 The Committee did not address this claim stating that it is not its task to decide on the question of qualification of an event as an assembly as it was called upon to decide whether there was an unjustified interference with the freedom of expression. 66
The UN HRC practice demonstrates a certain level of inconsistency in cases involving one-person pickets. In its reasoning, the Committee does not dwell on the nature of assembly, nor its principles elaborated in Kvienmaa (see section 2.2). Rather, it tends to focus on the authors’ claims and establishes arbitrary restriction of a mentioned right. Given this approach, the UN HRC is likely to classify mass solo protests, such as those taking place in Russia, under Article 19 of the ICCPR.
4.2 The Position of the ECtHR
Similar to the UN HRC, the ECtHR tends to view single-person protests as involving freedom of expression, while the practice on group solo protests is inconsistent.
One of the key cases is Novikova and Others v Russia. It includes five separate, but similar cases of solo protestors, who claimed to be distanced from others around them, but whose pickets were classified by the authorities as mass events and hence interrupted. This is despite the fact that these protests had taken place before 2012, when the law was amended to bring some solo pickets under realm of public events. One of the applicants, Ms Novikova, spoke out against conditions in psychiatry institutions and was fined as she had not made sure to keep a distance from other people gathered nearby. Another applicant, Mr Romakhin, was found to have violated a fifty meters distance with another protestor. The ECtHR, in Novikova and Others, found a violation of expression rights. 67 Yet, it did bring up the general principles of assembly in response to the formal approach taken by the Russian Government to delineate between an ‘assembly’ and a series of simultaneous solo demonstrations. 68 In particular, the Court appealed to the interference with the freedom of assembly and brought up the ‘degree of tolerance’ test, which is measured against the level of disturbance of everyday life caused by an assembly. Since the events were not large in scale, they posed a minor risk, and the authorities should have expressed ‘tolerance’ toward it. 69 Thus, by invoking Article 11, the Court sought to demonstrate that notwithstanding the State’s legal qualification of the event, the interference was still unjustified both under Articles 10 and 11, 70 especially given that the Russian legislation allows post facto qualification of an event as assembly. 71
The case law specifically on group solo protests remains quite limited. In some cases, such as Taranenko v Russia 72 and Açık and Others v. Turkey 73 , the Court invoked Article 10 (in light of the principles of Article 11), holding that ‘the arrest and detention of protesters may constitute an interference with the right to freedom of expression’. 74
Yet, in Zakharkin v Russia the Court, on the contrary, invoked assembly rights. 75 Zakharkin was a trade union leader who urged his colleagues to hold a simultaneous solo picket by standing on the street at a distance from one another, when he was arrested and fined for organising an unauthorised public event. Since the crux of the matter was arbitrary application of the public event approval rules, the ECtHR examined the case under Article 11 interpreted together with Article 10 76 . In accessing the facts of the case, the Court referred to Novikova and Others v. Russia, and reiterated that the existing notification rules and the regime of reclassification of solo pickets into public events does not, in practice, seek to ensure public safety, security or any other risk that would justify such restrictions on freedom of assembly and freedom of expression. 77
In a joint application of Lashmankin and Others v Russia, one of the co-applicants, Mr Tarasov, participated in a solo picket regarding the law prohibiting U.S. citizens to adopt Russian orphans. The co-applicant knew of the mass simultaneous solo pickets that were planned for that day near the State Duma, and decided to participate as a solo picketer himself. 78 Tarasov was promptly arrested and charged with participation in an unauthorised public event of fifty people. Commenting on the circumstances of this application, the ECtHR noted that the above-mentioned mass solo pickets were a spontaneous assembly caused by an objective inability to comply with the approval rules (a three-day prior notice, while the law on orphans was adopted just two days before the protest) 79 . The Russian laws, by requiring a 3-day notification, effectively prevent any immediate collective response on the issues of public importance. 80
In sum, the ECtHR case law demonstrates that the guarantees of Article 10 and Article 11 are complementary and are often applied in light of one another. When it comes to group solo pickets, the Court sometimes invokes expression rights, and at other times assembly rights. This inconsistency is understandable, given the unclear nature of a ‘picket’ in the Russian realities, where solo pickets are brought closer to ‘assembly’, both in practice and in law. The Court, on the one hand, warns against legal classification of simultaneous pickets as ‘assembly’ and finds it excessive and not serving the goal of ensuring public safety. On the other hand, it seeks to harmonise the application of Article 10 and Article 11 by applying standards from each freedom. 81 Its jurisprudence also highlights that freedom of speech is viewed as the highest value, while its ‘degree of tolerance’ test is stricter than that of assembly. Given the high threshold for limitations on freedom of expression in the context of protest, the Court through focusing on Article 10 seeks to provide maximum protection to the applicants and safeguard the space for political speech.
5. How to classify russian ‘mass’ solo protests? the importance of togetherness
As the practice both of the HRC and the ECtHR demonstrates, guarantees of freedom of assembly and expression are closely linked, complement each other and are often cited in conjunction. Case-law on solo protests often primarily draws upon expression rights, which are seen as lex generalis. This allows us to speculate that if cases involving even larger groups of solo protestors came under the ECtHR’s attention in the future, they would be also classified under Article 10 in light of Article 11 (or, perhaps, under both articles). This approach and the application of Article 10 as a lex generalis allows the Court to maintain uniformity, while applying a high threshold of protection of political speech.
However, it seems important for the Court to specifically acknowledge assembly rights in cases of group solo protests. As the Russian realities demonstrate, it is often the purpose of the authorities to ‘disjoin’ and weaken collective voices, while the members of society, on the contrary, seek to come together. This desire of the public has a strong reason: collective actions are more likely to get the government’s attention. As the German Constitutional Court noted in Brokdorf, 82 while large associations, donors, or mass media can wield considerable influence, the individual person often feels powerless; that is why the right to free assembly is so important for activists who lack access to the media and the power to bring incremental change. 83 The Brockdorf case concerned a blanket prohibition of any unregistered assembly at the nuclear plant construction site. The German Court highlighted that freedom of assembly protects the physical presence as a manifestation of personal support of particular ideas 84 and thus serves as a tool for visibility and representation. 85 Assembly transforms a personal point of view into an idea shared by many.
Similarly, in Tatár and Fáberv v Hungary, the ECtHR stressed the value of an assembly for conveying a message: the gathering of people in the public place serves as an amplifier of an idea, and their physical presence in itself becomes a means of expression. 86 As noted by the US Supreme Court in The United States v Cruikshank, assembly is an essential tool to voice the complaints of the members of society without resorting to petition. 87 The freedom enables individuals to gather independently and influence public policies. 88 The way in which freedom of assembly is regulated at the national level often indicates whether the government is open to criticism and is prepared to ‘hear the voice’ of those affected by the policies. By its nature, assembly is anonymous, yet it represents the power of people. 89
Nonetheless, the usual way of solo picketing in Russia is not effective in drawing attention: a protestor has to stand still and silent with his or her poster. The State’s pressure on the official media and the resulting self-censorship makes news coverage of protests limited. 90 As the overview of Russian legislation has demonstrated, the authorities seek to reduce the visibility of the protest and gradually create a regime, where any form of assembly can be effectively stripped of its expressive value. The ‘place requirement’ clearly illustrates this. By providing a broad list of locations, where holding an assembly is prohibited, such legislation reduces the visibility aspect of assembly to a bare minimum. By urging organisers to choose places remote from the general public or the government the regime goes against the positive obligation of the State to ensure facilitation of peaceful assembly. 91
In contrast, when solo protestors form a ‘mass solitary picket’ in public places and near key governmental offices, this communicative process can become a more powerful expression of an idea and bring greater visibility and representation, including media coverage. For instance, although the cause and effect of activists’ success is difficult to prove, the case of Ivan Golunov demonstrates how several ‘mass solitary pickets’ that have been covered by the media can help focus national attention on the cause and achieve a positive outcome. 92 In that sense, the case of Russian solo protests demonstrates that assembly ‘dramatises’ 93 expression and gives an added force to such an exchange of opinions. As Timothy Zick notes, a peaceful assembly is more preferable to express a social disagreement, while individual disagreement is covered by freedom of expression. 94
Accordingly, it seems crucial that in these circumstances, human rights bodies acknowledge the importance of visibility and the communicative process that activists seek to achieve through joining together. They can recognise the violation of both rights, while expressly mentioning the potential of freedom of assembly to amplify an idea and increase visibility of a cause. Such recognition can serve as a safeguard against further ‘disjoining' of collective voices and seems important in political terms, especially in contexts where civil society building is a long and unsteady process. When people assemble around common values, it provides them with a collective sense and contributes to the process of civil society formation. Their collective experiences and interactions should be protected within the specific and unique right to freedom of assembly.
6. Conclusion
This article examined the interplay between the freedom of assembly and expression. It focused on the case of Russia, where individuals use solo pickets to join together in collective action and form ‘group’ solo pickets, for instance, by forming a line to participate in a picket or remain at a distance from one another. The analysis of practice of the UN HRC and the ECtHR demonstrates that the human rights bodies do not make specific remarks as to the individuals’ intention to be part of the group in expressing their views and do not highlight that it can amplify expression. Yet, in the current conditions in Russia, given the powerlessness of a lone activist and lack resources or access to media, freedom of assembly is especially important for individuals as a chance to exert influence. This self-standing value of assembly may deserve special recognition in the cases that follow. Importantly, as countries learn to live with the implications of the COVID-19 pandemic such as restrictions of public gatherings and social distancing rules, the idea of expressing a common message without mass physical presence becomes all the more relevant and should be further explored.
Footnotes
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
