Failure of domestic authorities to prevent hate crimes against the LGBTQI+ community

Facts

The author, a national of the Russian Federation, took an active role in cause advocacy and events related to the LGBTQI+ community. The author was assaulted when returning from an authorized pride parade and was severely injured. The author filed a complaint with the police requesting to investigate the assault. The police refused to initiate the investigation, despite acknowledging the existence of animosity towards the LGBTQI+ community. Subsequent complaints by the author to the police were dismissed as premature. The District Court declared the actions of the police as illegal and instructed the authorities to rectify the mistakes. However, the author has not been informed of any progress in the investigation.

The author was again a victim of violence, and criminal proceedings were initiated. The author addressed a number of petitions to the police officials, which were dismissed. An appeal to the District Court was dismissed, and an appeal to the City Court was also rejected. The author believed that filing a cassation appeal was not an effective remedy, as it is a supervisory procedure and need not be exhausted for the purposes of admissibility. The author claims a violation of his right not to be subject to cruel, inhuman or degrading treatment, unlawful attacks on his honour, reputation, and privacy, and non-discrimination under articles 2, 7, 17 and 26 of the Covenant.

Admissibility

Contrary to the State party’s argument that the author failed to exhaust domestic remedies, because he did not appeal under the cassation review, the Committee held that the State party failed to show that there was a chance of success where a motion for prosecution for violent crimes had not been granted. The Committee concluded that the cassation review contains elements of an extraordinary remedy. Lacking clarification from the State party on the effectiveness of the cassation review, the Committee held that it was not precluded by article 5 (2) (b) of the Optional Protocol from examining the Communication. The Committee further held that the claim of the author under article 2 could be considered under article 2 (3) read with claims under article 7, and the author’s claims under articles 7, 17, and 26 had been sufficiently substantiated for the purposes of admissibility.

Merits

The Committee noted that though the obligations under the Covenant cannot be viewed as a substitute for domestic law, the State party had a positive obligation to prevent a violation of article 7 that went beyond adopting necessary criminal law provisions, and that obligation can be expected to apply in cases of reasonably foreseeable threats. The Committee noted that instead of protecting the participants of the pride parade where the author was assaulted from known risks, the measures taken by the State party further exposed the participants to violence. The Committee held that the State violated article 7 of the Covenant by not preventing a foreseeable attack on the author. The Committee noted that although the Covenant does not provide a right for individuals to require the State party to criminally prosecute persons, the State party is under an obligation to carry out prompt and impartial investigation, and cannot resort to the excuse that domestic courts have dealt with such matters, when it is evident that judicial remedies would be ineffective.

The Committee concluded that the investigation conducted by the State party has not been effective and has been going on for an unduly long time, which is a violation of article 7 read with article 2 (3) of the Covenant. The Committee also observed that ‘discrimination’ as used in the Covenant covers discrimination on the basis of sexual orientation, and that the principle of equality requires States parties to take actions to mitigate conditions that perpetuate discrimination. The Committee observed that the State party was under an obligation to provide effective protection to the author, a member of a targeted social group, and failure to do so led to a violation of article 26. The Committee decided that as it found violations of articles 7 and 26, there was no need to separately examine claims under article 17.

Recommendations

The State party is obliged, inter alia:

a) Provide the author with adequate compensation, including reimbursement of court fees and legal expenses incurred;

b) To provide the author with psychological rehabilitation if needed; c) Take all necessary steps to prevent such violations from occurring in the future and bring domestic laws in line with practices concerning the protection of LGBTQI+ in line with the Covenant.

Implementation

Deadline for implementation: 11 September 2023