View Adopted: 2020.11.05
The author submits that he is an activist for the LGBT Rights in Russia and the president of the Russian LGBT Human Rights Project. Since May 2006, he alongside others have attempted to hold peaceful protests in Moscow – which have all been banned by the local authorities.
On the 26 September 2014, him and other activists submitted a notification to the Mayor of Moscow stating that they intended to hold a gay parade in support of tolerance – this notification provided the time, date and place of the event. On 1 October 2014, the Moscow regional security and anti-corruption department informed the author that the parade would not be allowed as it would promote, amongst minors, non-traditional sexual relations, cause moral damage, outrage religious and the moral sensibilities of others and would negatively interfere with society and traffic.
Due to this, the organizers cancelled the parade and filed a complaint with the District Court in Kostroma, arguing that the laws and regulations did not allow them to ban parades, as long as they conducted it in a way that conformed with legislation. In addition to this, that the authorities could take the necessary steps to allow for a peaceful protest and to protect the participants and that the itinerary could be changed in order to better adjust to the moral expectations. Besides this argumentation, the court rejected the application and stated that there had been no violation of the law.
On 25 October 2014, the author complained to the regional court, which only confirmed the previous Court’s decision in December 2014. The authors cassation appeal to the President of the Regional Court was unsuccessful and rejected in February 2016. Finally, the author complained to the Supreme Court of the Russian Federation, which was rejected in April 2015.
Due to this, the author claims that the State party is denying him and other activists an opportunity to hold LGBT parades – which violate his rights under articles 21 and 26 of the Covenant. He has also submitted that due to this sexual orientation, he is being discriminated against.
The author claims that the State party violated his right to hold a peaceful assembly according to article 21, as it imposed a blanket prohibition on the intended parade, even though according to national laws, the parade should be allowed as the legitimate aim of the parade was lawful. The State party also did not provide how the restrictions imposed on the parade would be aligned with the legitimate aims as mentioned in article 21. The author believes that the State party indicated that they were aiming to protect the morals of society but instead they are attempting to silence the LGBT community and their concerns.
The Committee recalls that according to article 5(2) of the Optional Protocol, the complaint may not be examined under another procedure of international investigation or settlement. The State party argues that the author has filed three similar complaints to the European Court of Human Rights and that two of these complaints are still pending before the Court. But the Committee ascertains that even though the subject matter of the complaints might be similar, that the complaints before the European Court of Human Rights concerns the right to picketing from 2006 to 2015, whereas the current complaint is about the organization of a parade in Moscow in 2014. Due to this fact, the meaning of the “same matter” is not concerned here, and the Committee will not use this to preclude the communication from being admissible.
According to the complaints being made under articles 21 and 26, the Committee finds that the author properly substantiated them and declared this communication as admissible.
The Committee notes the authors complaints of his violation of his rights under articles 21 and 26 – and the Committee notes that the right to hold a peaceful assembly constitutes the foundation to participatory governance based on democracy and human rights. That this right should be enjoyed by all, and one should not be limited of this right on the basis of gender identity or sexual orientation.
The Committee recalls that article 21 protects peaceful assemblies where they take place, be it indoors or outdoors, and that no restriction is permissible unless it is (a) imposed in conformity with the law and (b) necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protections of the rights and freedoms of others. The onus is on the State party to not limit this right in a disproportionate way, and that when this right is limited to be able to prove that the limitation was not paid to discriminate, discourage participation or impair the essence of the right – if this onus cannot be proven, then the State party would have violated article 21.
The Committee does understand that in terms of peaceful assemblies, that at times – this right may be limited for practical purposes. Therefore, it is up to the State to comply with all their positive obligations to facilitate the peaceful assemblies and to make it possible for the participants to achieve their objectives – meaning that road closures or extra security may be necessarily provided by the State for this objective.
The Committee observes that both the State party and the author agree that the failure to authorise the pride parade in Moscow on the 11th of October 2014 was an interference with the author’s right of assembly – but the parties disagree as to whether the restriction to this right is permissible or not.
The Committee notes that the restrictions on peaceful assembly due to the moral freedoms of society should only be imposed in the exceptional circumstances – as this restrictive ground should not be used to protect an exclusive group of people but rather should be understood in the universality of human rights, pluralism and the principle of non-discrimination. This restriction may not be imposed on the basis of sexual orientation or gender identity.
Furtherly, the Committee notes the fears of the State party that by allowing the peaceful demonstration, that this might encourage others that do not share the same sentiment to carry out illegal acts – but to this, the State party has the duty to do everything reasonable possible to protect the participants from the violence of others, as this type of violence would be included as a discriminatory attack.
Additionally, the Committee notes that the State Party may not use the excuse of disturbing traffic in order to impose restrictions on the peaceful assembly, this cannot be seen as a ground of prohibition, especially since the organizers stated that they would be willing to relocate the assembly to a better location if necessary.
Finally, the Committee notes the authors complaint that this discrimination was made on the basis of his sexual orientation, which is a violation of article 26. According to the general comment No.18 – it states that article 26 entitles all persons should be equal before the law and have equal protection under it. The Committee observes that the reasons behind the restrictions to the peaceful assembly were mostly made on the basis of the homosexual content of the parade and that the State party failed to prove how the restrictions made were on the basis of objective criteria.
Therefore, the Committee finds that the State party has failed to prove that the restrictions imposed on the authors rights to a peaceful assembly were based on reasonable and objective criteria and in pursuit of a legitimate aim. Additionally, that the reasons behind the restrictions were not made on the basis of discriminatory grounds, due to the sexual orientation of the author and the homosexual agenda of the parade. Therefore, this would be a violation of the author’s rights under articles 21 and 26 of the Covenant.
The State party should provide the author with an effective remedy and should:
Deadline for follow-up and implementation : 180 Days : 5 June 2021.
Joint opinion of Committee members Vasilka Sancin and Yuval Shany (dissenting)
The two Committee members agree on almost all of the analysis of the admissibility and the merits offered by the majority of the Committee – they disagree with the approach of the Committee to question the abuse of the right to submit a communication and therefore, dissent to the admissibility of this communication.
The Committee notes that according to the Optional Protocol, the Committee should find communications that were submitted in a way that would abuse the rights of the State party to exercise their own rights under the Optional Protocol, as inadmissible communications as listed in article 3 of the Optional Protocol. This communication should be considered under the same umbrella – as even though the author argues that the claims submitted to the European Court of Human Rights are different to that submitted before this Committee – the State party disagrees. The claims submitted at the European Court and the Committee both speak of the same issues, and even though they cover different dates or different parade, the claims at the European Court cover the date of this Moscow parade.
Due to this, the authors considered that the Committee did not apply article 5(2) of the Optional Protocol in a stricto sensu manner – as the two cases pending at the European Court of Human Rights are parallel to that being discussed in this communication. That these two matters have identical facts, legal issues and parties to the suit and that they involve events that occurred at the same time. Even though the refusal to hold the pride parade in 2014 could be considered somewhat different to the restrictions imposed to the pride parades mentioned at the European Court of Human Rights – the author failed to justifiable distinguish the difference between the two matters but merely stated that this communication discussed this specific parade.
The Committee should realise the negative implications that could occur if double litigation would be allowed, and this is why article 5(2) of the Optional Protocol is essential. This mechanism is used so that the same human rights matter is not dealt with at various quasi-judicial forums, that the State party does not need to expose themselves at multiple forums and that there could not be conflicting jurisprudence for the same matters.
The author has failed to justify or give an adequate reason for him initiating parallel legal proceedings at various institutions, but it seems as if he has deliberately launched multiple litigations over essentially the same legal and factual matters and has failed to provide justification for launching this at multiple international forums. This practice would be an abuse of the right to submission and should have been declared inadmissible under article 3 of the Optional Protocol.