ECtHR found violation of the right to freedom of assembly and SOGI-based discrimination

The European Court of Human Rights (ECtHR) found violation of several articles of the European Convention on Human Rights in relation to Elena Berkman, one of the participants of the Coming Out Day in St. Petersburg in 2013. These include Article 5 (the right to liberty and security of person), Article 11 (the right to freedom of assembly) and with discrimination (Article 14). The rally in support of the LGBTI+ community was authorized, but the police did not protect its participants from aggressive behavior of homophobes. On the contrary, the activists, including Elena Berkman, were taken to the police station and charged with hooliganism (they allegedly had been swearing, police officers said).

Subsequently, Russian courts dismissed the legal cases of administrative violations against all participants of the Coming Out Day, considering their guilt unproven. After the St. Petersburg courts dismissed Elena Berkman’s complaint about her illegal detention, she then appealed to the ECtHR.

The European Court considered Mrs. Berkman’s arrest and further detention at the police station arbitrary, unlawful and in violation of Article 5 of the European Convention. Earlier, the Court has already noted, for example, in the case “Navalny and Yashin v. Russia”, that if police officers suspected an administrative offense, they must draw up a protocol about the matter on the spot, and only if this could not be done, they could resort to bringing the offender to the police station (Article 27.2 of the Administrative Code of the Russian Federation).

When reviewing the observance of the right to freedom of assembly, the Court referred to the Venice Commission’s and OSCE/ODIHR Guiding Principles on Freedom of Peaceful Assembly, which stipulate a positive obligation on the state to “promote and protect the exercise of the right to freedom of peaceful assembly” without discrimination. Given that the state has a duty to act as the supreme guarantor of the principles of pluralism, tolerance and broadmindedness, genuine and effective freedom of peaceful assembly cannot be reduced to a simple duty of the authorities not to interfere. Such an approach, according to ECtHR, is incompatible with the object and purpose of Article 11 of the ECHR, where some cases require the adoption of positive measures, including those concerning interactions between citizens.

The positive obligation, as the Court has noted, is of particular importance for people in more vulnerable situations: those holding unpopular views or belonging to minorities. In such cases, the state should help implement the right to peaceful manifestation by ensuring that participants are not physically abused by opponents. Otherwise, some groups of people will be forced to refuse to openly express their opinions on controversial, but socially important issues.

The Court pointed out that Article 14 applied not only to protection against discrimination, but also provided for the right not to be discriminated against in the enjoyment of the rights guaranteed by the European Convention. Thus, the state, not taking into account the considerably varied situations of different people, also violated Article 14.

ECtHR considered that the passive behavior of the police officers at the initial stage of the rally, the apparent absence of any preliminary measures (such as official public statements promoting tolerance, monitoring the activities of homophobic groups or communicating with the organizers of the event) and the subsequent arrests in relation to the alleged administrative offenses demonstrated solely the police’s concern with the maintenance of public order, but not with the need to facilitate the rally.

According to the ECtHR, Russian national courts took a narrow view of the state’s positive obligations under the European Convention: although there was an obvious homophobic motive behind the counter-demonstrators’ behavior, the authorities did not help to facilitate the planned public event. As a result, those protesting against discrimination became victims of homophobic attacks themselves, which the authorities failed to prevent.

The court found that the Russian authorities had failed to fulfill their positive obligations under Article 11 of the Convention, both taken separately and in conjunction with Article 14. Moreover, the unlawful detention of the applicant and other participants of the Coming Out Day led to the latter’s inability to participate in the planned public event. Thus, there was an interference with the rights protected under Article 11 of the Convention.