Violation of the right to peaceful assembly on discriminatory grounds (SOGI)

Facts

The author is a Russian national whose request to organize peaceful assemblies on lesbian, gay, bisexual and transgender rights (gay pride parade) in Moscow were denied for nine consecutive years. He claims that the authorities interfered with his right to peaceful assembly by refusing permission to hold the parade, amounting to a violation of his rights under article 21 of the Covenant. He also claims a violation of article 26 in conjunction with article 21, owing to the discriminatory grounds for the interference.

Admissibility

The Committee found the communication admissible on the following grounds: (i) the Committee was not precluded under article 5 (2) (b) of the Optional Protocol from being seized of the complaint, because the cassation procedure under the Russian Civil Procedure Code did not constitute a remedy that the author was required to exhaust; and (ii) the author had sufficiently substantiated his claim under articles 21 and 26 of the Covenant.

Merits

The Committee held that the State Party had violated under article 21 and 26 of the Covenant because it failed to show that the restriction imposed on the author’s rights were necessary in a democratic society, and because it failed to demonstrate that this infringement, which drew a distinction on the basis of sexual orientation and gender identity, was based on reasonable and objective criteria in pursuance of a legitimate aim under the Covenant.

Recommendations

The State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated, including adequate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future e.g. review its legislation and practice with a view to ensuring that the rights under article 21 of the Covenant, including organizing and conducting peaceful assemblies, and article 26 may be fully enjoyed in the State party.

Separate Opinions

Committee member Zyberi concurred with the Committee’s findings, but further added a recommendation that the Committee, when dealing with individual complaints arising from Crimea, should provide, under “considerations of admissibility”, a short explanation stating that the case arises in respect of “the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine, temporarily occupied by the Russian Federation”.

Implementation

September 18, 2021