Tuesday, 13 December 2016

Alekseyev v Russia - further consideration by the Committee of Ministers

At the 1273rd Human Rights meeting of the Ministers' Deputies, held between 6-8 December 2016, the Committee of Ministers of the Council of Europe once again considered the state of the execution of the judgment of the European Court of Human Rights in Alekseyev v Russia. The judgment, it will be recalled, concerned the repeated refusal of domestic authorities to permit "gay pride" events - a refusal which the Court held to amount to, inter alia, a violation of Article 11 and Article 14 taken in conjunction with Article 11 of the European Convention on Human Rights. 

Over six years have passed since the Court's judgment and the Committee of Ministers have considered the Russian authorities' response to it on several occasions. During this time, Russia has enacted federal law prohibiting the so-called propaganda of non-traditional sexual relations among minors - a complaint against which is outstanding before the Court. 

The Russian authorities maintain - as they have many times before - that they have taken positive action to ensure that LGBT groups may exercise their right to freedom of assembly in public and hold "gay pride" events. They state, in their latest Action Plan, that
individual and general measures that have been previously communicated and described in this Action plan will help to provide the balanced approach to consideration of requests on holding public events of the category under consideration, uniformity and improvement of law enforcement practice, including the judicial one, as well as create additional assurance of compliance with provisions of the Convention on Human Rights and Fundamental Freedoms. 
However, submissions form NGO's - Coming Out and ILGA-Europe, and Gay Russia and Moscow Pride - suggest that the situation in Russia is not improving and is, in fact, worsening. Coming Out and ILGA-Europe state:
The execution of judgments process in this case has now been proceeding for 5 1⁄2 years. Regrettably, not only has there been no serious attempt to implement the judgment, but similar violations continue unabated. The Russian government’s latest Communication reveals that of 48 notifications for public events between 1 October 2015 and 30 June 2016, 47 were blocked by the authorities. Almost all the refusals were challenged in the courts, 41 to appeal court level, and two to the Supreme Court. No challenge was successful. 
Gay Russia and Moscow Pride state:
We would like to attract the attention of the Committee of Ministers to the fact that in 2016 the situation with the respect of the right of LGBT individuals to freedom of assembly in Russia continued to sharply deteriorate. At the time of the current submission, in 2016 alone municipal or regional authorities banned Gay Parade marches and all public assemblies in support of the rights of sexual and gender minorities and condemning homophobia and transphobia in [...] 56 Russian cities located in 55 out of 85 constitutional regions...
The Committee of Ministers reached the following decision (with my emphasis added):
The Deputies
1.         noted with interest the additional measures presented in the updated action plan, notably the actions of the Supreme Court intended to harmonise judicial practice in line with the requirements of the Constitution, the European Court’s judgments and the Committee of Ministers’ decisions, the creation within the judiciary of a database of relevant international materials and continued training and other awareness-raising activities for local authorities and judges;
2.         noted also the authorities’ declaration that Russian law affords the LGBT community the opportunity fully to exercise the rights guaranteed by the Constitution and the Convention, including by using the “mass event format”;
3.         noted with satisfaction that the courts appear now to be deciding on the lawfulness of refusals to allow public events of the kind here at issue before the date planned for the events in question;
4.         expressed, however, serious concern that, notwithstanding the measures presented, the situation does not attest to any improvement, as the number of public events allowed continues to be very limited: only one of all the requests to hold an assembly, deposited during the last period examined by the Committee (from 1 October 2015 to 30 June 2016), was allowed;
5.         noted with concern that the courts regularly uphold the refusal decisions of the local authorities and that the emerging signs of improvement in judicial practice, including compliance with the Convention requirements in some cases and an award in 2013 of non-pecuniary damages to compensate for an unlawful refusal to allow an event, do not appear to have been followed;
6.         urged the 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, including by ensuring that the law on “propaganda of non-traditional sexual relations” among minors does not pose any undue obstacle to the effective exercise of these rights;
7.         in view of the above, invited the authorities to continue action to address effectively the outstanding questions with a view to achieving concrete results;
8.         noted that, among the measures which could be considered, figure reinforced training of all the authorities involved, elaboration of a code of conduct for local authorities in charge of handling notifications for public events and for the police when handling assemblies and the possibility of further guidance by the highest courts to prevent violations of the kind at issue in the present case, as well as further measures to address continued widespread negative attitudes towards LGBT persons;
9.         invited also the authorities, in accordance with the existing practice, to continue providing statistical information on developments, this time for the period from 1 July 2016 to 31 March 2017. 
The Committee of Ministers' Decision can be seen as a clear statement that the Deputies do not accept the Russian authorities' claims that improvements have been made and, moreover, that significant reform is needed in Russia to ensure that LGBT people are able to effectively exercise their right to freedom of expression and peaceful association.

It seems certain that the European Court of Human Rights will find further violations in similar cases against Russia before any progress is made in respect of the execution of the Alekseyev judgment. 

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