Court says convictions for public demonstrations against homophobic laws in Russia violate ECHR
The five applicants are Valeriy Valeryevich Sozayev, Ivan Fedorovich Babitskiy, Svetlana Yuryevna Mishina, Yevgeniya Dmitriyevna Samoshkina, and Pavel Vyacheslavovich Samburov.
At around 12.15 p.m. the police officers surrounded the anti-bill protesters and pushed them into police buses. According to the applicants, none of the activists supporting the bill were apprehended in this way. According to the Government, during the assembly the police also apprehended several supporters of the bill.
Relying on the administrative records and reports and explanations of the police officers, the domestic courts found the applicants liable for violating the established procedure for the conduct of a public assembly on account of their participation in the unauthorised gathering. In particular, the courts considered unlawful that some of the applicants shouted slogans and/or failed to verify whether the gathering was legitimate.
Complaints under Article 11
the applicants were arrested, transferred to the police station and charged with administrative offences for the sole reason that the gathering had not been authorised.
In this respect, the Court referred to the
"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 admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the measures applied to the applicants as peaceful participants in the public assembly did not correspond to a pressing social need and were thus not necessary in a democratic society" (§ 22).
Complaints under Articles 5 and/or 6
Having examined all the material before it, the Court concluded that these complaints disclosed violations of Articles 5 and 6 of the Convention.
Complaints under Article 14 taken in conjunction with Article 11
LGBT people amounted to discrimination on grounds of their sexual orientation and political views.
The Government submitted that the dispersal of the gathering was not due to the sexual orientation of its participants but due to their failure to comply with the official notification procedure.
The Court noted that it had found a violation of Article 11 of the Convention on account of the fact that the applicants had been arrested and charged with administrative offences for the sole reason that they had not duly notified the authorities of their gathering. Having regard to this conclusion and in the light of the material submitted to it by the parties, the Court did not consider that the complaint under Article 14 called for a separate examination.
This is a welcome judgment which addresses restrictions on the right to freedom of peaceful assembly generally, and the right to peacefully assemble to object to homophobic and transphobic laws. I would, however, question the Court's decision to not examine the complaints made by the applicants under Article 14 taken in conjunction with Article 11 of the Convention.
The applicants "highlighted that the administrative offence records in their cases quoted their slogans in support of the rights of LGBT people and that the courts’ decisions referred to the applicants’ chanting of ‘relevant slogans’ as a part of the behaviour for which they were persecuted" (§ 32).
Given that the applicants explicitly claimed that their treatment was motivated by discrimination based on sexual orientation, the Court should, in my view, have considered this under Article 14. To not do so runs counter to the Court's case law on sexual orientation discrimination and, in particular, the established principle that
not due to sexual orientation but, rather, their failure to comply with the official notification procedure required for public assembly. That may or may not be true but it certainly, in my opinion, merited proper consideration under Article 14 of the Convention.