Violation of freedom of expression and discrimination of LGBT persons following the unjustified State refusal to hold a picket

Facts

The author, a Russian national, is a member of the LGBT community and a human rights activist for the community in Saint Petersburg. He sought permission from local authorities to hold a picket on the International Transgender Day of Visibility in Saint Petersburg. The author was refused permission to hold the picket at the proposed location, as allegedly another event was scheduled there, and proposed to hold it at the outskirts of the city. The author challenged the decision in court, however, his request was dismissed. The appeal court, inter alia, stated that the location proposed by the author was in the immediate proximity of a children’s theatre and referred to the domestic law prohibiting “gay propaganda among children”. The author claimed to be a victim of a violation of his rights under articles 19 (freedom of expression), 21 (freedom of peaceful assembly) and 26 (non-discrimination) of the Covenant.

Admissibility

The Committee noted that the State party provided statistical information on the effectiveness of the new cassation procedure, which was of a general nature and did not reflect the cases involving claims of violation of the rights to freedom of assembly and of expression, in particular with regard to the LGBT community. Therefore, the Committee found that the new cassation procedure was not to be considered a remedy that the author was required to exhaust in his case. It further concluded that claims under articles 19, 21 and 26 of the Covenant had been sufficiently substantiated for the purpose of admissibility.

Merits

The Committee noted that neither the local authorities nor the domestic courts had provided any justification based on an individualized assessment of the planned public event as to how the author’s event would have violated the rights and freedoms of others. The State party also failed to show that sufficient alternative measures were taken to facilitate the exercise of the author’s rights under article 21. The Committee observed that limiting pickets to certain isolated locations does not meet the standards of necessity and proportionality under article 21 of the Covenant and did not consider separately a possible violation of article 19 of the Covenant. The Committee further noted that it had previously concluded that the laws banning the promotion among minors of non-traditional sexual relations in the State party have exacerbated negative stereotypes of individuals on the grounds of sexual orientation and gender identity and represent a disproportionate restriction of their rights under the Covenant, and it has called for the repeal of such laws. Accordingly, the Committee considered that the State party had failed to establish that the restriction imposed on the author’s right to freedom of peaceful assembly was based on reasonable and objective criteria and in pursuit of a legitimate aim under the Covenant. Therefore, there had been a violation by the State party of articles 21 and 26 of the Covenant.

Recommendations

The State party should:

• (a) provide adequate compensation to the author;
• (b) take all steps necessary to prevent similar violations from occurring in the future, and
• (c) review its legislation 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.

Implementation

Deadline: 19 January 2023

By: Anna Gorodetskaya