Case Summary and Outcome

The European Court of Human Rights held that the arrest of a Russian LGBTI activist after attending a peaceful protest violated the activist’s right to freedom of assembly. The activist had been arrested after she had attempted to attend a meeting to commemorate an annual LGBTI awareness day. Before the meeting could begin, counter-protestors surrounded the activists, and the activist and twelve others were later arrested and charged with disorderly conduct. The activist’s case was dismissed by the domestic courts for lack of evidence but she filed a civil case, arguing that the police had failed to protect the activists from the counter-protesters and so failed to ensure the personal safety of the activists and that her arrest had violated her right to freedom of assembly. The domestic courts dismissed the case, and the activist approached the European Court of Human Rights. The Court emphasized the importance of States adopting positive measures to ensure the rights of minorities are protected, and held that the police had failed to facilitate the activists’ enjoyment of the right to freedom of assembly and that their conduct had exposed the activists to homophobic attacks.

Facts

On September 27, 2013, a group of Russian LGBTI rights activists planned to hold a meeting on October 12 – an annual LGBTI awareness day titled “Coming Out Day” – in a square in St Petersburg, Russia. They informed the city authorities of their intention and indicated that the meeting would take place between 14h00 and 15h30 and that 150 participants were expected to attend. On September 30, the authorities “reminded the organisers of the meeting that they would be held liable under domestic law for inciting hatred and enmity on account of ethnicity, language, origin and religious beliefs or for promoting “non-traditional” sexual relationships to minors” [para. 5]. The authorities also notified the police about the planned meeting, and the police planned to deploy “around 540 police officers, including officers from special-purpose unites, to ensure public order during the meeting” [para. 7].

On October 12, 2013, the police arrived at the square at 11h30 and at 13h00, Yelena Vladimirovna Berkman, a Russian citizen, arrived to participate in the meeting. Berkman, and the other twenty or thirty participants were blocked by “more than 100 aggressive counter-demonstrators”, who insulted and “pushed and punched” the participants [para. 9]. The police did not respond when Berkman and other participants requested assistance, but did arrest “several counter-demonstrators” when the counter-demonstrators insulted the police [para. 9]. The counter-demonstrators were taken to a police van at the square before being immediately released and the harassment of the participants continued. Just before 14h00, Berkman was one of a group of twelve participants who were surrounded by police and told that they had “breached public order by using foul language in a public place” [para. 10].

Berkman was arrested under Article 27.3 of the Code of Administrative Offences (CAO), and detained for four hours. She was charged with “disorderly conduct” under Article 20.1 of the CAO. Her case was transferred to a District Court which, on November 8, 2013, dismissed it for lack of evidence.

On February 12, 2014, Berkman filed a civil claim against various state authorities. She argued that her arrest and detention were unlawful and that “the authorities had failed to ensure the personal safety” of the Coming Out Day participants [para. 17]. The case was dismissed by the Vasileostrovskoiy District Court on procedural grounds and on the merits. The District Court found that as Berkman had been one of the participants her arrest was lawful because police “interfered with the public gathering because of the conflict between the demonstrators and counter-demonstrators” [para. 19]. It dismissed witness testimony that Berkman had not personally breached public order because “the witnesses belonged to the same group of demonstrators” as Berkman [para. 19]. The District Court also found that Berkman’s detention was lawful because it did not exceed the CAO’s limit of 48 hours. Stating that there had been 550 police officers and that Berkman had not been harmed, the District Court dismissed the claim that the demonstrators’ personal safety had not been ensured.

On December 31, 2014, Berkman appealed to the St Petersburg City Court, arguing that her arrest had “not pursued a legitimate aim and had been arbitrary” and that the authorities had not complied with their European Convention on Human Rights obligations [para. 20]. She submitted that the right to freedom of expression had been infringed and that the participants had experienced discrimination because no counter-protestors were arrested. On March 11, 2015, the City Court dismissed Berkman’s appeal.

On September 2, 2015, the St Petersburg City Court dismissed the cassation appeal Berkman had filed against the District and City Court decisions. Berkman then approached the Supreme Court of Russia which, on February 20, 2016, “declined to entertain” her cassation appeal, and, on May 21, 2019, informed Berkman that “her case file had been destroyed owing to the expiration of the statutory period for its storage” [para. 23].

Berkman then approached the European Court of Human Rights. She argued that her right to freedom of assembly had been infringed. Article 11 of the European Convention on Human Rights states: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

Decision Overview

President of the Third Section, Judge Paul Lemmons, signed the unanimous judgment. The central issue for the Court’s determination was whether Berkman’s arrest was a violation of her right to peaceful assembly.

Berkman argued that the authorities “had failed to enable the public meeting marking Coming Out Day to proceed peacefully” as they had not taken action against the counter-demonstrators and had arrested her and other participants before the meeting was due to begin [para. 39]. She maintained that her arrest “had been arbitrary and unjustified” [para. 43]. Berkman maintained that it was only the participants – and not the counter-demonstrators – who had been taken to police stations and that she and the other participants had been discriminated against “on the grounds of their opinions and perceived sexual orientation” [para. 43],

The Russian Government argued that the authorities “had taken all necessary measures to ensure peaceful conduct of the event”, including the deployment of 540 police officers and arresting 93 people who had breached public order. The Government submitted that they had treated all individuals at the gathering equally and “had not distinguished demonstrators from counter-demonstrators” [para. 44]. It stated that “[t]he police intervention had saved both sets of parties to the conflict from physical injuries that they could have inflicted on each other” [para. 44].

The Court referred to Committee of Ministers of the Council of Europe Recommendation CM/Rec(2010)5 on “measures to combat discrimination on grounds of sexual orientation or gender identity” [para. 25]. This recommendation – and the 2019 Guidelines on Freedom of Peaceful Assembly from the Organization for Security and Co-operation in Europe and the European Commission for Democracy through Law obliges states to take positive measures to ensure the right to freedom of peaceful assembly and to protect against discrimination – including sexual orientation and gender identity. These international law treaties also require a “human-rights based approach” to the policing of assemblies and require that mass arrests be avoided as far as possible. The 2019 Guidelines stress the “duty to protect and facilitate controversial but peaceful assemblies”, the “duty to take special measures to adequately facilitate assemblies associated with individuals or groups most at risk”, the “duty to distinguish between peaceful and non-peaceful participants”, and the “duty to de-escalate tensions” [para. 26].

The Court also referred to a 2014 Human Rights Watch report, “License to Harm: Violence and Harassment against LGBT People and Activists in Russia” which had identified that counter-protestors “attacked virtually every LGBT equality event of which Human Rights Watch were aware”; and that LGBT activists were harassed and exposed to homophobic slurs and threatened with physical violence [para. 27]. The report noted the lack of police action to protect LGBT events.

The Court emphasized that “pluralism and democracy are built on genuine recognition of, and respect for, diversity” [para. 45]. It stressed that this pluralism and tolerance must be guaranteed by the State and stated that “[g]enuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 of the Convention” [para. 46]. The Court noted that this obligation to take positive steps to ensure the enjoyment of the right “is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation” [para. 46]. The Court identified that a “peaceful demonstration may annoy or give offence to persons opposed to the ideas or claims that it seeks to promote” but that participants of these assemblies should not “fear that they will be subjected to physical violence by their opponents” as that may deter others from participating in controversial events [para. 47].

In noting the importance of the rights to freedom of assembly and expression, the Court stated that States may not impose “unreasonable indirect restrictions” on the enjoyment of the right and that there must be “convincing and compelling reasons to justify an interference with this right” [para. 48]. It also identified that the right not to be discriminated against also obliges States to “make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different” and referred to Identoba v. Georgia where the Court had held that the State had “violated its obligations under the principle of non-discrimination due to the failure to protect demonstrators from homophobic violence and to launch an effective investigation” [para. 49].

The Court distinguished the present case from the case of Alekzeyev v. Russia, noting that the authorities had not banned the Coming Out Day public meeting and had deployed a significant number of police officers. However, it noted that the police officers took no action against the counter-demonstrators and that this inaction meant that the Coming Out Day participants were not able to find space to demonstrate. It identified this as the police failing to de-escalate the tension between the demonstrators and counter-demonstrators and characterized the police approach as “concerned only with the protection of public order during the event”, noting that the police had not deemed it necessary to take positive steps to “facilitate the meeting” [para. 53].

In stressing that demonstrations may “annoy or give offence to persons opposed to the ideas of claims it is seeking to promote” the Court described itself as “unsatisfied” with the authorities’ approach to the Coming Out Day meeting [para. 54]. The Court noted the particular vulnerability of the participants as they constitute a minority and that, therefore, the State’s positive obligations to ensure the enjoyment of the right were “of paramount importance” [para. 55]. It examined the context of the demonstration and that the Coming Out Day participants “held views that were unpopular in Russia and therefore were vulnerable to victimisation” [para. 55]. The Court noted that the authorities had been aware of the insulting and “homophobic connotation” of the counter-demonstrators’ actions but had not addressed this.

Accordingly, the Court held that the Russian authorities had “failed to duly facilitate the conduct of the planned event by restraining homophobic verbal attacks and physical pressure” which resulted in the Coming Out Day participants became “victims of homophobic attacks which the authorities did not prevent or adequately manage” [para. 57]. The Court rejected the Government’s argument that Berkman’s arrest was necessary, and highlighted the peaceful nature of Berkman’s conduct.

The Court held that the right to freedom of assembly under Article 11 had been infringed, and that the Russian State had not given effect to its positive and negative obligations under that article. It found that it was not obvious that the authorities arrested only those participants attending the Coming Out Day event and so there was no infringement of the right to equality under Article 14. The Court ordered the Government to pay Berkman 10 000 Euros in damages.