Failure to protect LGBT people at "Coming Out Day" event in Russia violates the ECHR
The Third Section of the European Court of Human Rights has issued its judgment in Berkman v Russia. The case concerns the failure of police officers to ensure that an LGBTI event disrupted by counter-demonstrators proceeded peacefully, and the unlawful arrest of the applicant, Ms Berkman, at the event.
About 150 people were expected to attend the event.
The police deployed around 540 police officers, including officers from special-purpose units, to ensure public order during the meeting. It appears that the enhanced security was ordered in the light of anticipated clashes with counter-demonstrators.
Ms Berkman was detained at the police station from 2.30 p.m. to around 6.30 p.m.
The Court that subsequently dealt with Ms Berkman case -
claimed that her administrative arrest and subsequent detention at the police station had been arbitrary and unlawful.
She further complained, relying on Article 11 taken alone and in conjunction with Article 14 of the Convention, that the domestic authorities had failed to enable the public meeting marking Coming Out Day to proceed peacefully.
The Court concluded that the authorities failed to duly facilitate the conduct of the planned event by restraining homophobic verbal attacks and physical pressure by counter-demonstrators.
The Court stated: "As a result of the passive attitude of the police authorities, the participants of the event fighting against discrimination on the grounds of sexual orientation became themselves the victims of homophobic attacks which the authorities did not prevent or adequately manage" (§ 57).
This judgment is a further reiteration of the Court's now established principle that domestic authorities are under a positive obligation to ensure that LGBT+ people can exercise their right to freedom of peaceful assembly in circumstances free from homophobic hatred.
Police officers must not be "passive" in the face of conflict between LGBT+ people and homophobic protestors, but must actively facilitate the freedom of peaceful assembly of LGBT+ people.
As the Court said, police passivity results in those people who are fighting against discrimination on the grounds of sexual orientation themselves becoming the victims of homophobic attacks.
In the context of Russia, the judgment further highlights the risks to LGBT+ people, the failure of the state to protect them, and the ongoing relevance of the Convention system for redress. Of course, the ongoing failure of the Russian government to execute the Court's LGBT-related judgments is a significant problem. For the Convention system to work, political pressure is needed by the bodies of the Council of Europe to ensure that Russia takes action to be compliant with the Convention.
One intriguing aspect of this judgment is that the Court was prepared to find a violation of Article 14 (prohibition on discrimination) in respect of the failure of the police to facilitate the event, but not in respect of Ms Berkman's arrest. Clearly, in respect of the public event, the Court was satisfied that Ms Berkman was made the victim of homophobic attacks because of a failure of the police and, therefore, the violation of positive obligations under Article 11 had a discriminatory element. But the Court was not satisfied that Ms Berkman had been arrested for discriminatory reasons - that is, on grounds of sexual orientation. The key issue for the Court was that it could not find any evidence that the police officers had only arrested the participants of the LGBTI event or disregarded the breaches of public order by their opponents. On this basis, the Court would not find a discriminatory element to the negative violation of Article 11. It does appear that the Court assessed video and other materials to reach this conclusion.
Generally, this is a very positive judgment that strengthens the Court's jurisprudence on the freedom of peaceful assembly of LGBT+ people.