A. Admissibility

10. The Court observes that the Government did not raise the issue of the applicants’ compliance with the six-month rule. It has previously found that the application of that rule should not be set aside solely because the Government have not made a preliminary objection based on it (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006-III, and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I). The Court therefore considers it appropriate to address this issue in the present case.

11. The Court reiterates that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It also protects the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. It marks out the temporal limits of supervision carried out by the Court and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-40, 29 June 2012).

12. In assessing whether an applicant has complied with Article 35 § 1 of the Convention, it is important to bear in mind that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. Thus, where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures complained of. If an applicant first avails himself of a domestic remedy and only subsequently becomes (or should have become) aware of the circumstances which render that remedy ineffective, it might be appropriate to calculate the six-month period from the date on which the applicant became (or ought to have become) aware of those circumstances. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule. It follows that if an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that appeal cannot be taken into account for the calculation of the six-month period (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, ECHR 2016, and the cases cited therein).

13. The Court found in Alekseyev (cited above, § 99) that Russian laws, as in force at the material time, specified time-limits for the organisers to give notice of a public event. By contrast, the authorities were not obliged by any legally binding time frame to give their final decisions before the planned date of the public event. The Court therefore concluded that the judicial remedy available to the organisers of public events, which was of a post-hoc character, could not provide adequate redress in respect of the alleged violations of Article 11 of the Convention. It consequently found a violation of Article 13 owing to the absence of an effective domestic remedy. In the case of Lashmankin and Others v. Russia (nos. 57818/09 and 14 others, §§ 356-60, 7 February 2017) the Court confirmed this approach. It also upheld the additional argument put forward by the applicants challenging the effectiveness of that remedy and found it to be ineffective because the scope of the judicial review was limited to examining the lawfulness of the restriction, and did not include any assessment of its “necessity” and “proportionality”.

14. Turning to the circumstances of the present cases, the Court observes that the applicants complain about the decisions of local authorities to refuse to approve the dates and the venues of various LGBT public events. It furthermore notes that in most cases the applicants challenged these decisions in the domestic courts after the dates of the planned events, as indicated in the Appendix. In their applications, which were lodged in 2012-2015, all the applicants relied extensively on the judgment in Alekseyev and formulated their complaint under Article 11 in identical terms. Hence, their complaints about the discriminatory ban on holding LGBT public events should have been introduced to the Court within six months, calculated from the date of the administrative decision not to approve each respective event.

15. The Court furthermore notes that in the instances when the applicants intended to hold LGBT public events in cities other than Moscow, they sometimes received the local authorities’ decisions refusing to approve those events by post on unidentified dates. However, the applicants had already been aware of those refusals by the time of their lodging their respective complaints to the domestic courts. In those cases their applications should have been introduced to the Court within six months of the receipt of the refusal in question, and in any even no later than the date of the lodging the respective complaint with the court.

16. It follows that the applications, and in some cases parts of the applications (marked with an asterisk in the Appendix), are lodged out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention. By contrast, where the applicants have lodged their respective applications within six months of the date of the administrative refusal to approve an event or the date on which they learned of such a refusal and challenged it in the domestic courts, they have duly complied with the six-month rule. The Court notes that the complaints set out in the latter applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. This part of the case must therefore be declared admissible.

B. Merits

1. The parties’ submissions

17. The Government submitted that the notification procedure established by the Russian law did not encroach upon the essence of the right to freedom of peaceful assembly under Article 11 of the Convention. In their view, local authorities had not banned any public events organised by the applicants but had warned them of the consequences of breaking the law by holding such events. Moreover, in some cases the authorities had suggested changing the venue of the events. In doing so, local authorities had protected the interests of minors, which could have been breached by the “promotion of homosexuality in public places”. The Government essentially repeated their submissions in Bayev and Others v. Russia (nos. 67667/09 and 2 others, § 47, ECHR 2017) in that respect. They therefore considered that the impugned measures had been lawful and proportionate to the legitimate aim of the protection of rights and freedoms of minors, their parents and others, and had not entailed a violation of Article 11 or Article 14 (in conjunction with Article 11). Lastly, the Government's submissions as regards the applicants’ complaint under Article 13 were essentially the same as in Lashmankin and Others (cited above, §§ 335-41).

18. The applicants’ submissions were essentially the same as those in the case of Alekseyev (cited above, §§ 64-67, 94 and 105). However, they agreed that after the entry into force of the Russian federal law outlawing the promotion of homosexual relationships to minors in July 2013, the ban on LGBT public events had become lawful. In any case, the blanket refusals by local authorities on repeated occasions, without considering any alternative venues for the assemblies, had not been proportionate to the legitimate aims invoked by the Government. The applicants further stressed that they had had no effective remedies in respect of their complaints under Article 11 and had suffered discrimination on the basis of their sexual orientation, in breach of Article 14 of the Convention. They relied on the Court's findings in Alekseyev (cited above, §§ 99-100 and 109-10) in that regard.

2. The Court's assessment

19. The Court refers to the principles established in its case-law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, with further references) and the proportionality of interference with it (see Bączkowski and Others v. Poland, no. 1543/06, §§ 61-64, 3 May 2007). It also refers to its case-law concerning discrimination on the grounds of sexual orientation (see Kozak v. Poland, no. 13102/02, 2 March 2010).

20. In the leading case of Alekseyev (cited above), the Court has already found a violation in respect of issues similar to those which the present case concerns.

21. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the ban on holding LGBT public assemblies imposed by the domestic authorities did not correspond to a pressing social need and was thus not necessary in a democratic society. The Court also finds that the applicants suffered unjustified discrimination on the grounds of sexual orientation, that that discrimination was incompatible with the standards of the Convention, and that they were denied an effective domestic remedy in respect of their complaints concerning a breach of their freedom of assembly.

22. There has accordingly been a violation of Article 11, Article 13 (in conjunction with Article 11) and Article 14 (in conjunction with Article 11) of the Convention in respect of each applicant.

A. Damage

24. All applicants claimed between 5,000 and 500,000 euros (EUR) each in respect of non-pecuniary damage. The first applicant (Mr Alekseyev) also claimed 10,000 Russian roubles (RUB – approximately EUR 141) in respect of pecuniary damage on account of the fine payable by him as an administrative penalty. He furthermore claimed RUB 30,664 (approximately EUR 433) in that respect for travel and postal expenses, which will be examined in the costs and expenses part below (see paragraphs 30-32).

25. The Government submitted that the claims for non-pecuniary damage were excessive and unreasonable.

26. As regards the first applicant's claim for compensation for the damage constituted by the administrative fine, the Court observes that no direct causal link has been established between the violation found and the fine the applicant paid following his conviction for the administrative offence (see, by contrast, Novikova and Others v. Russia, nos. 25501/07 and 4 others, § 232, 26 April 2016). The Court therefore dismisses the claim under this head.

27. With regard to the applicants’ claims for compensation for non-pecuniary damage, the Court observes that the violations of the Convention found in the present case are similar to those previously found in the judgment of Alekseyev (cited above). It reiterates that under Article 46 the Contracting Parties have undertaken to abide by the final judgments of the Court in cases to which they are parties, execution being supervised by the Committee of Ministers. At the date of adoption of the present judgment, the Committee of Ministers is continuing its supervision of the pending execution of the judgment in Alekseyev, which it classified as suitable for the enhanced supervision procedure. Most recently, at the 1273rd meeting of the Committee of Ministers (December 2016, DH) a decision was adopted (CM/Del/Dec(2016)1273/H46-23) whereby the Committee urged the Russian authorities to adopt all further necessary measures to ensure that the practice of local authorities and the courts develops so as to ensure the respect of the rights to freedom of assembly and to be protected against discrimination, and invited the Russian authorities to continue action to address effectively the outstanding questions with a view to achieving concrete results. The Court notes that in the years which have passed since the Alekseyev judgment (cited above) no such measures have yet been brought forward by the Government.

28. In this connection, the Court emphasises the obligation on States to perform treaties in good faith, as noted, in particular, in the third paragraph of the preamble and in Article 26 of the 1969 Vienna Convention on the Law of Treaties (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 37, ECHR 2009). Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46, provided that such means are compatible with the conclusions set out in the Court's judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 VIII). In exercising their choice of general and individual measures, the respondent State is required to provide the Committee of Ministers with detailed, up-to-date information on developments in the process of executing the judgment that is binding on them (see Verein gegen Tierfabriken Schweiz (VgT), cited above, §§ 35 and 87, citing Rule 6 of the Committee of Ministers’ Rules for the supervision of the execution of judgments and of the terms of friendly settlements). Given the variety of means to achieve this aim and the nature of the issues involved, the Committee of Ministers is better placed than the Court to assess the specific measures to be taken (see Kudeshkina v. Russia (no. 2) (dec.), no. 28727/11, §§ 74-81, 17 February 2015). For its part, the Court finds it appropriate to emphasise that the nature of the violations found in Alekseyev (cited above) and the extent of the recurring problem at issue require sustained and long-term efforts in the adoption of general measures, in order to address issues under Articles 11 and 14 in particular.

29. While the Court accepts that the manner in which the national authorities treated the applications to hold LGBT public events and the absence of effective domestic remedies may give rise to feelings of frustration, it nonetheless concludes that the finding of a violation, triggering the respondent State's obligation to take the above-mentioned measures under its domestic legal system, may therefore be regarded as constituting the most appropriate means of redress (see Norris v. Ireland, 26 October 1988, § 50, Series A no. 142; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 120, ECHR 2002-VI; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 134, ECHR 2008). The Court consequently rejects the applicants’ claims for compensation for non-pecuniary damage.

B. Costs and expenses

30. Mr Alekseyev submitted the following claims in respect of costs and expenses:

• - RUB 30,664 for travel and postal expenses in Russia, including three train tickets from Moscow to Kostroma and Tambov, and three return airplane tickets from Moscow to Arkhangelsk, plus the adjustment of this amount for inflation;

• - RUB 80,304 (approximately EUR 1,135) and 271 Swiss francs (CHF - approximately EUR 248) for court fees and postal expenses incurred before the domestic courts and the Court, plus the adjustment of this amount for inflation;

• - CHF 719,707 (approximately EUR 660,094) for legal fees incurred in the domestic proceedings and in the proceedings before the Court.

31. As regards the amount of RUB 30,664 claimed for travel and postal expenses, the Government considered that no compensation could be awarded for expenses which would have been incurred irrespective of whether the proceedings in issue had violated the Convention or not. As for the court fees and postal expenses, the Government stated that only compensation for the expenses incurred in respect of mail sent to the Court could be awarded to the applicants. Lastly, the Government submitted that the applicants had failed to provide copies of any contract for legal services or any receipts or payment orders confirming that these expenses had actually been incurred. Moreover, the amount in legal fees claimed did not correspond to the principle of proportionality and adequacy, as the circumstances of all the cases were absolutely identical.

32. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court emphasises that the prevailing situation has given rise and continues to give rise to violations similar to those in the present case and in Alekseyev in respect of every person who is willing to organise an LGBT public event. It has declined to award just satisfaction for non-pecuniary damage in respect of such violations (see § 27 above). The Court therefore considers that there are no exceptional circumstances which would justify making any awards for costs and expenses in follow-up cases of this type (see, mutatis mutandis, Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 120, ECHR 2010 (extracts)). Moreover, the applicant submitted no documentary proof, such as legal-services contracts with his representatives, payment receipts or invoices, that he had a legally enforceable obligation to pay for the lawyers’ services or that he had in fact paid them (see, for example, Novikova and Others, cited above, § 236). Regard being had to these considerations, the Court rejects Mr Alekseyev's claim for costs and expenses.

FOR THESE REASONS, THE COURT

1. Decides, unanimously, to join the applications;

2. Declares, unanimously, the complaints complying with the six-month rule admissible and the remainder of the applications inadmissible;

3. Holds, unanimously, that there has been a violation of Article 11 of the Convention;

4. Holds, unanimously, that there has been a violation of Article 13 in conjunction with Article 11 of the Convention;

5. Holds, unanimously, that there has been a violation of Article 14 in conjunction with Article 11 of the Convention;

6. Holds, by six votes to one, that the finding of violations of Articles 11, 13 and 14 of the Convention constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;

7. Dismisses, by six votes to one, the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 27 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips      Vincent A. De Gaetano

Registrar                President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) concurring opinion of Judge Dedov;

(b) partly dissenting opinion of Judge Keller.

V.D.G.

J.S.P.

CONCURRING OPINION OF JUDGE DEDOV

In the present judgment the Court observed with regret that no measures had been brought forward by the Government to implement the Court's previous judgment in the leading case of Alekseyev v. Russia (nos. 4916/07 and 2 others, 21 October 2010). At the same time the Court found the same package of violations without providing any substantial reasoning (the ban on holding public assemblies did not correspond to a pressing social need and was not necessary in a democratic society; the applicants had suffered unjustified discrimination on the grounds of sexual orientation). It is obvious that all the participants, including the Court, were not flexible enough to find a compromise. The Court emphasised that the nature of the violations and the extent of the recurring problem required sustained and long-term efforts in the adoption of general measures in order to address the issues under Articles 11 and 14 of the Convention (see paragraph 28 of the judgment). However, it is difficult to devise any measures if the problem is not identified. First of all, in the leading case of Alekseyev, cited above, the Court disregarded the security and safety concerns put forward by the Government in connection with Gay Pride parades. Later, as demonstrated in the case of Identoba and Others v. Georgia, no. 73235/12, 12 May 2015, it became clear that those concerns were real and needed to be addressed by the Court. In the case of Bayev and Others v. Russia (nos. 67667/09 and 2 others, 20 June 2017), the Court did not consider the fundamental rights and freedoms of parents and their children affected by the public debate on sexual orientation. Those deficiencies in the case-law created the impression that the promotion of homosexual relationships, especially to minors, could be considered an issue for public debate (see the applicants’ submissions in paragraph 18 of the judgment).

I believe that compromise and social harmony could be found on the basis of mutual respect for human rights and, in particular, for the rights of minorities who do not seek to promote their personal way of life, but rather seek recognition that their civil rights should be equally respected and protected by the State. I am referring to the right to create family relationships that differ from the usual notion of a union between man and woman. The legal recognition of such partnerships could be the starting-point for protecting all the other needs usually arising in relation to any family members. I voted together with the majority in the present case because some of the events organised by the applicants were devoted to the protection of their rights and not to the promotion of sexual relationships.

PARTLY DISSENTING OPINION OF JUDGE KELLER

1. To my regret, I am unable to agree with my colleagues on the matter of the application of Article 41 of the Convention in the present case.

2. In paragraph 29 of the judgment, the Court holds that the finding of violations of Articles 11, 13 and 14 of the Convention constitutes sufficient just satisfaction for the non-pecuniary damage sustained by the applicants on the basis that, following such finding, the respondent State should adopt the appropriate general and/or individual measures to secure the right of freedom of assembly and protect the persons under its jurisdiction against discrimination, as required by Article 46 of the Convention. For the reasons set out below, I disagree with this decision and consider that an award of non-pecuniary damage to the applicants was called for in this case.

A. General measures and just satisfaction

1. Individual assessment of each case – No automatic conclusion

3. Under Article 41 of the Convention, the Court has the possibility to afford just satisfaction to the injured party. The principle with regard to damages is that the applicant should be placed, as far as possible, in the position in which he or she would have been had the violation not taken place, in other words, restitutio in integrum.

4. The application of Article 41 of the Convention is dependent on the Court's discretion and on the particular circumstances of the case. The wording of Article 41, which provides that the Court will only award such satisfaction as is considered to be “just” in the circumstances, and only “if necessary”, makes this clear. Moreover, where the Court finds that a monetary award in respect of non-pecuniary damage is necessary, it makes that assessment on an equitable basis.

5. I thus believe that, when faced with a case arising out of a practice incompatible with the Convention at the national level, the sole fact that the Court considers that general measures are called for does not automatically imply that there is no need to afford just satisfaction to the injured party. The ex aequo et bono character of just satisfaction in my view excludes any automatic conclusion. All awards of just satisfaction have to be based on an assessment of the concrete circumstances of the case. By contrast, the reasoning adopted by the majority under paragraph 29 prematurely restricts the scope for awarding compensation for non-pecuniary damage for systemic breaches of the Convention.

6. In this regard, the Court has repeatedly awarded just satisfaction for non-pecuniary damage in addition to inviting the State to take general measures to address the root causes of the violation. For instance, in Ališić and others [GC] (no 60642/08), the Grand Chamber adopted a pilot-judgment procedure and suggested general measures following violations of Article 13 of the Convention and of Article 1 of Protocol No. 1, while awarding non-pecuniary damages to the applicants. Similarly, in the recent judgment in the case of Voynov v. Russia (no. 39747/10, 3 July 2018), which also concerned a repetitive case arising out of a structural problem – that is to say the placing of prisoners in detention facilities far from their family home – the Court made an award of non-pecuniary damage and costs as well as of expenses.

7. Likewise, in Sargsyan v. Azerbaijan [GC] (no. 40167/06), Maestri v. Italy [GC] (no. 39748/98) Stanev v. Bulgaria [GC] (no. 36760/06), Assanidze v. Georgia [GC] (no. 71503/01), Vella v. Malta (no. 73182/12), Xenides-Arestis v. Turkey (no. 46347/99 (just satisfaction)) and Gerasimov and others v. Russia (no. 29920/05 and 10 others), the Court awarded non-pecuniary damages to the applicant(s), while at the same time urging the State to take general measures to resolve the violation(s) alleged. Moreover, in Sürmeli v. Germany [GC] (no. 75529/01), the respondent State had already taken steps to remedy the violation and the Court thus held that general measures were no longer called for; the applicant was nevertheless awarded non-pecuniary damages.

8. The fact that the possibility to implement general measures does not, as such, preclude the award of just satisfaction by the Court was stipulated by the Grand Chamber in its judgment in the Assanidze v. Georgia case cited above (see paragraph 198), which also concerned recurrent violations:

9. Moreover, I believe that in this case there were sufficient grounds to award just compensation to the applicants. The non-pecuniary damage they sustained is clear: the applicants suffer from nationwide, systematic, and repeated violations of their fundamental rights, arising from the existence of a practice incompatible with the Convention at the national level. In my view, this points in favour of an award for non-pecuniary damage, not against.

10. Additionally, the Court fails to adequately take into account the applicants’ frustration, distress and feelings of injustice caused by the repeated application of the discriminatory practice against them over the years, which feelings were inevitably “exacerbated by their taking upon themselves the trouble and burden of acting – at least to some extent – on behalf of all others in their position” (see Hutten-Czapska v. Poland [GC], no. 35014/97, § 248). The Court, in paragraph 29 of the judgment, does recognise that the applicants may have experienced feelings of frustration, but, to my surprise, rejects the applicants’ claim to non-pecuniary damage. In light of the above, however, I believe that it would have been consistent with the Court's case-law and the individual circumstances of the case to award such just satisfaction.

2. State of execution of the leading judgments

11. The two leading cases concerning the rights of sexual minorities in Russia, and more particularly the banning of LGBT events, Alekseyev v. Russia (no. 4916/07 and 2 others, 1 October 2010) and Bayev and others v. Russia (no. 67667/09 and 2 others, 20 June 2017), are the subject of enhanced supervision procedures before the Council of Ministers. However, the implementation of the general measures called for following those judgments is pending before the Committee of Ministers, and will probably not occur in the near future.

12. As noted by the Court, notwithstanding the concerns raised by the Committee of Ministers, “in the years which have passed since the Alekseyev judgment (cited above), no such measures have yet been brought forward by the Government” (see paragraph 27 of the judgment). Moreover, during the last examination of the execution of the Alekseyev judgment by the Committee of Ministers in December 2016, the situation did not attest to any improvement, as between 1 October 2015 and 30 June 2016 only one of a total of 51 requests submitted to hold public events similar to those at issue was granted (see Decision CM/Del/Dec(2016)1273/H46-23, adopted by the Committee of Ministers at its 1273rd meeting (6-8 December 2016), § 4). Similarly, in June 2013, a ban on the so-called “propaganda of homosexuality” was introduced by Russian legislation and these grounds were used to further refuse permission to hold LGBT public events (which led to the violation of Article 10 of the Convention, as found by this Court in Bayev, cited above).

13. Therefore, in my view, the applicants have no genuine prospect of regaining their freedom of assembly in the near future. Under these circumstances, the Court should not additionally deprive them of just satisfaction.

3. Application of Article 46 of the Convention in the case at hand

14. The Court, in paragraphs 27 and 28 of the judgment, reiterates its established case-law on Article 46 and mentions the state of execution of the above-cited Alekseyev judgment, in relation to its refusal to grant non-pecuniary damages to the applicant.

15. It is clear that the respondent State, following a finding of violation by the Court, is under the obligation to abide by the judgment of the Court and to take, subject to supervision by the Committee of Ministers, the appropriate general and/or individual measures to be adopted in order to put an end to the violation and to redress its effects so far as possible (see Scozzari and Giunta v. Italy [GC], no 39221/98 and 41963/98, § 249). The declaratory nature of the Court's judgments, which leaves States free to choose such means of redress, is well-established.

16. In this regard, in Fabris v. France [GC] (no. 16574/08 (merits), § 75), the Grand Chamber held that:

17. Nor is any doubt cast on the role of the Committee of Ministers in the execution of judgments or the need for its continued involvement in the implementation of the Alekseyev and Bayev judgments in order to put an end to the respondent government's impugned practice in the long-term,.

18. However, in my view, the sole finding of violations, which should, in principle, trigger the implementation of the appropriate domestic measures, does not, in the case at hand, repair the damage caused to the applicant by the violation “in such a way as to restore as far a possible the situation existing before the breach” (see Assanidze v. Georgia [GC], cited above, § 198, and Scozzari and Giunta v. Italy [GC], cited above, § 249). In other words, restitutio in integrum is not achieved.

19. This argument stems from a number of observations. Firstly, after the Court's judgment in Alekseyev eight years ago, the respondent State and the domestic courts were already under an obligation to remedy the violations suffered by the applicants and to swiftly change their practice in order to avoid future violations. They have, however, consistently failed to do so, as evidenced by the subsequent Bayev judgment and the present case. The process of implementation, under the supervision of the Committee of Ministers, is still pending and the Committee has not yet adopted any final resolution concluding that the Russian Government has fulfilled its obligations under Article 46 § 2 of the Convention. Thus the refusal of the Court to award non-pecuniary damages is even more paradoxical given that the impugned practice and legal provisions remain in force, and that the effects of the harm already sustained by the applicants have therefore not been mitigated (see, mutatis mutandis, Bayev and others v. Russia, no. 67667/09 and two others, § 98). Secondly, the Court made no reference to Article 46 of the Convention in Alekseyev and Bayev, nor did it decide in those two cases to apply the so-called “pilot-judgment procedure” concerning repetitive cases stemming from the same uncorrected practice incompatible with the Convention. Thirdly, the applicant has suffered immaterial damages that a change in practice will not appropriately remedy, as explained in paragraphs 9 and 10 of this opinion.

B. Risk of prejudicing applicants in repetitive cases

20. The refusal to grant just satisfaction in cases where a systemic shortcoming is identified within the respondent State's domestic legal system would have the perverse outcome of victimising applicants whose rights have been violated multiple times by penalising their use of the Court.

21. While all the Court's judgments and decisions are made on the basis of the individual circumstances of and allegations made in a particular case, and although the awards made under Article 41 depend on a number of factors, there is a glaring difference between the situation of Mr Alekseyev following the 2010 judgment or of Mr Bayev following the 2017 judgment rendered by this Court, who were awarded EUR 12,000 and EUR 8,000 in respect of non-pecuniary damage, and the situation of the applicants in the present case, who suffered repeated violations of their rights and were awarded no non-pecuniary damage. In my opinion, we cannot justifiably reduce the amount of compensation – or refuse compensation altogether – for the individual violations of the applicants’ rights on the basis that they occurred on multiple occasions. There is no reason why it should be more affordable for States to violate an individual's rights in bulk.

22. In this regard, I would like to point out that the ratio of Rule 42 § 1 of the Rules of Court of 1 August 2018, which permits the joinder of two or more applications at the request of the parties or of the Court's own motion, is not and cannot be to prejudice the applicants’ complaints or minimise the State's responsibility, but to promote a more efficient Court.

23. As a result, in my opinion, there can be no justification for not awarding immaterial damages under Article 41 where repeated violations are at stake and where the respondent State has not substantially changed its practice following a finding of violation, despite a significant lapse of time since the delivery of the judgment. The majority's approach devalues the gravity of the individual violations suffered by the applicants, and seems to negate the seriousness of the fact that the authorities still do not fulfil their obligations under the Convention. The Court ought to beware applicants being punished for the fact that the State has yet to correct its repeated violations of their rights.

C. Functions of reparation

24. Ultimately, I am of the opinion that an award for non-pecuniary damage would have made the redress stronger by giving the Russian Federation a financial incentive to correct the situation as soon as possible, and avoid future violations giving rise to further damages.

25. Indeed, the Convention confers two separate functions on the Court: firstly, to determine whether a violation of a fundamental right has taken place, and secondly, to give just satisfaction should the breach be ascertained. In the proposal at hand, the Court, having addressed the first function, refrains from discharging the second. In doing so, the Court fails to bear in mind that just satisfaction goes beyond mere compensation and also holds a broader function, which is both preventive and instructive. The award of just satisfaction, besides reinstating the victim in his fundamental right, serves as a concrete warning to governments. It is a financial incentive for the State found to be in violation to change its practice and avoid future violations. Given the state of implementation of the two judgments cited above (Alekseyev v. Russia; and Bayev and others v. Russia), such financial incentive could have proven to be beneficial in the case at hand.

D. Conclusion

26. In the light of the foregoing considerations, the Court should have awarded the injured party equitable satisfaction rather than simply stating that the finding of violations constituted sufficient just satisfaction in respect of the non-pecuniary damage suffered.