Tuesday, 25 October 2016

New communicated case against Russia concerning "homosexual propaganda" law

The European Court of Human Rights has communicated the case of Sozayev and Others v Russia. The case concerns the treatment of five applicants who were involved in peaceful public protests against the introduction of a regional law banning “homosexual propaganda directed at minors”.

The facts

In 2012 the Novosibirsk Regional Legislative Assembly introduced a federal bill banning “propaganda for non-traditional sexual relationships directed at minors” to the State Duma (the lower chamber of the Russian Parliament). The bill was supported by Ms Yelena Mizulina from the Fair Russia party; it became known as “the Mizulina bill” after her.

On several occasions in December 2012 and January 2013 opponents of the bill gathered in front of the State Duma building in Moscow to protest against its adoption by kissing each other. They were arrested and charged with minor disorderly acts under the Code of Administrative Offences of Russia.

In the evening of 6 June 2013 the mass media announced that the second and the third readings of the Mizulina bill were to take place on 11 June 2013 in the State Duma. On 8 June 2013 Ms Yelena Kostyuchenko, a journalist, called on opponents of the bill to come to the State Duma building and take part in a peaceful protest against it on the day of the second and third readings. Information about the protest was published on social media.

On 11 June 2013 at around noon about thirty opponents of the bill came to the entrance of the State Duma building facing Georgiyevskiy Lane in Moscow. Journalists were present there, as well as a group of about 100 conservative Orthodox Christian activists who were supporting the bill. Riot officers from the Moscow Police Department were also present in Georgiyevskiy Lane; they stood between the opponents of the bill and the Christian activists. The opponents of the bill lined up against the wall of the State Duma building and kissed their partners. Christian activists chanted “Moscow is not Sodom!”; the bill opponents tried to shout them down by chanting “Down with fascism”, “Moscow is not Iran” and “Fascism shall not pass”. At some point Christian activists started throwing eggs and nettles at the opponents of the bill.

At around 12.15 p.m. the police officers surrounded the anti-bill protesters and pushed them into police buses. About thirty of them were apprehended in this way and taken to police stations. 

None of the Christian activists were apprehended in this way.

Complaints to the European Court of Human Rights

All the applicants complain under Articles 10 and 11 of the Convention about the allegedly unlawful and disproportionate measures taken against them as peaceful protesters. 

Furthermore, they claim that the dispersal of the gathering which called for equality for LGBT people constituted discrimination on the grounds of their sexual orientation and political views, in violation of Article 14 of the Convention.

The applicants complain that their apprehension by the police officers during the gathering was arbitrary. One applicant complains under Article 5 § 1 of the Convention that his detention at the police station after being arrested at the gathering was unlawful.

All the applicants complain under Article 6 § 1 of the Convention that the proceedings in which they were convicted of administrative offences fell short of the guarantees of a fair hearing. They point out, in particular, lack of impartiality on the part of the domestic courts owing to the absence of any prosecuting authority; that role was allegedly performed by the judges.

Four applicants complain under Article 6 § 3 (d) of the Convention that the courts refused to call prosecution witnesses, namely the police officers who had arrested them at the gathering.

Questions to the Parties

Common questions
1. As regards each applicant, has there been an interference with his or her freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? 
2. If so, was that interference prescribed by law and necessary in terms of Article 11 § 2 of the Convention, in respect of each applicant? In particular, given the spontaneous character of the assembly and that it was impossible to give notice within the time-limit prescribed by law, was the interference proportionate in the circumstances of the present case (see Bukta and Others v. Hungary, no. 25691/04, §§ 35-37, ECHR 2007‑III, and Eva Molnar v. Hungary, no. 10346/05, §§ 36-38, 7 January 2009)? 
3. Have the applicants suffered discrimination in the enjoyment of freedom of assembly contrary to Article 14 of the Convention read in conjunction with Article 11 of the Convention? 
4. Was each applicant’s arrest on 11 June 2013 compatible with the requirements of Article 5 § 1 of the Convention? In particular:(a) What were the legal grounds for the applicant’s arrest during the gathering on 11 June 2013?(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention? 
5. As regards the applicants’ trials, did they have fair hearings by independent and impartial tribunals in the administrative proceedings against them, in accordance with Article 6 § 1 of the Convention, given the absence of any prosecuting authority, whose role was allegedly performed by the judge?
Case-specific questions
Mr Babitskiy, Ms Mishina, Ms Samoshkina (no. 67685/14) and Mr Samburov (no. 35199/15) 
1. As regards each applicant, were they able to examine witnesses against them, in particular the police officers who had arrested them at the gathering, as required by Article 6 § 3 (d) of the Convention? 
Mr Samburov (no. 35199/15) 
2. Was the applicant’s deprivation of liberty lasting four hours compatible with the requirements of Article 5 § 1 of the Convention? In particular:(a) What were the legal grounds for the applicant’s detention?(b) Did the detention pursue any aim enumerated in Article 5 § 1 of the Convention?

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