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FIRST SECTION
CASE OF ALEKSEYEV v. RUSSIA
(Applications nos. 4916/07, 25924/08 and 14599/09)
JUDGMENT
STRASBOURG
21 October 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Alekseyev v.
Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Christos Rozakis,
President,
Nina Vajić,
Anatoly
Kovler,
Elisabeth Steiner,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
judges,
and André
Wampach, Deputy
Section Registrar,
Having deliberated in private on 30 September 2010
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in three applications (nos.
4916/07, 25924/08 and 14599/09) against the Russian Federation lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Russian national, Mr Nikolay Aleksandrovich Alekseyev (“the
applicant”), on 29 January 2007, 14 February 2008 and 10 March
2009.
- The applicant was represented by Mr D.G. Bartenev, a
lawyer practising in St Petersburg. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- The applicant alleged a violation of his right to
peaceful assembly on account of the repeated ban on public events he
had organised in 2006, 2007 and 2008. He also complained that he had
not had an effective remedy against the alleged violation of his
freedom of assembly and that the Moscow authorities’ treatment
of his applications to hold the events had been discriminatory.
- On 17 September 2009 the Court decided to give notice
of the applications to the Government. It was also decided to join
the applications and to rule on the admissibility and merits of the
applications at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1977 and lives in Moscow. He
is a gay rights activist.
A. Pride March and picketing on 27 May 2006
- In 2006 the applicant, together with other individuals,
organised a march to draw public attention to discrimination against
the gay and lesbian minority in Russia, to promote respect for human
rights and freedoms and to call for tolerance on the part of the
Russian authorities and the public at large towards this minority.
The march was entitled “Pride March” that year, and “Gay
Pride” in subsequent years, to replicate similar events held by
homosexual communities in big cities worldwide. The date chosen for
the march, 27 May 2006, was also meant to celebrate the anniversary
of the abolition of criminal liability in Russia for homosexual acts.
- On 16 February 2006 the Interfax news agency published
a statement by Mr Tsoy, the press secretary of the mayor of Moscow,
to the effect that “the government of Moscow [would] not even
consider allowing the gay parade to be held”. Interfax further
quoted Mr Tsoy as saying: “The mayor of Moscow, Mr Luzhkov, has
firmly declared: the government of the capital city will not allow a
gay parade to be held in any form, whether openly or disguised [as a
human rights demonstration], and any attempt to hold any unauthorised
action will be severely repressed”.
- On 22 February 2006 Interfax quoted the mayor of Moscow
as having said, on a different occasion, that if he received a
request to hold a gay parade in Moscow he would impose a ban on it
because he did not want “to stir up society, which is
ill-disposed to such occurrences of life” and continuing that
he himself considered homosexuality “unnatural”, though
he “tried to treat everything that happens in human society
with tolerance”.
- On 17 March 2006 the first deputy to the mayor of
Moscow wrote to the mayor about the imminent campaign to hold a gay
parade in Moscow in May that year. She considered that allowing the
event would be contrary to health and morals, as well as against the
will of numerous petitioners who had protested against the idea of
promoting homosexuality. Having noted that the Federal Law on
Assemblies, Meetings, Demonstrations, Marches and Picketing (“the
Assemblies Act”) did not provide for the possibility of banning
the event, she stated that the authorities could suggest changing the
venue or time or that, if the event turned out to be a real public
threat, it could be interrupted. She requested the mayor’s
agreement on developing an effective action plan for the prevention
of any actions – public or otherwise – aimed at promoting
or holding a gay parade or festival.
- On 24 March 2006 the mayor of Moscow instructed his
first deputy, five other officials of his office and all prefects of
Moscow “to take effective measures for the prevention and
deterrence of any gay-oriented public or mass actions in the capital
city”. He called for action proposals based on the legislative
and regulatory framework and demanded an “active mass-media
campaign and social commercials with the use of petitions brought by
individuals and religious organisations”.
- On 15 May 2006 the organisers submitted a notice to
the mayor of Moscow stating the date, time and route of the intended
march. It was to take place between 3 p.m. and 5 p.m. on 27 May 2006,
with an estimated number of about 2,000 participants, who would march
from the Moscow Post Office along Myasnitskaya Street to Lubyanskaya
Square. The organisers undertook to cooperate with the
law-enforcement authorities in ensuring safety and respect for public
order by the participants and to comply with regulations on
restriction of noise levels when using loudspeakers and sound
equipment.
- On 18 May 2006 the Department for Liaison with
Security Authorities of the Moscow Government informed the applicant
of the mayor’s decision to refuse permission to hold the march
on grounds of public order, for the prevention of riots and the
protection of health, morals and the rights and freedoms of others.
It stated, in particular, that numerous petitions had been brought
against the march by representatives of legislative and executive
State bodies, religious denominations, Cossack elders and other
individuals; the march was therefore likely to cause a negative
reaction and protests against the participants, which could turn into
civil disorder and mass riots.
- Having received the above reply, the organisers
submitted a notice with a view to holding another event on the same
date and time as the march for which permission had been refused.
They informed the prefect of their intention to hold a picket in the
park at Lubyanskaya Square.
- On 19 May 2006 the applicant challenged before a court
the mayor’s decision of 18 May 2006 refusing permission to hold
the march.
- On 23 May 2006 the deputy prefect of the Moscow
Central Administrative Circuit refused permission to hold the picket
on the same grounds as those given for the refusal to hold the march.
- On 26 May 2006 Interfax quoted the mayor of Moscow as
saying in an interview to the radio station Russian Radio that no gay
parade would be allowed in Moscow under any circumstances, “as
long as he was the city mayor”. He stated that all three
“major” religious faiths – “the Church, the
Mosque and the Synagogue” – were against it and that it
was absolutely unacceptable in Moscow and in Russia, unlike “in
some Western country more progressive in that sphere”. He went
on to say: “That’s the way morals work. If somebody
deviates from the normal principles [in accordance with which] sexual
and gender life is organised, this should not be demonstrated in
public and anyone potentially unstable should not be invited.”
He stated that 99.9% of the population of Moscow supported the ban.
- On the same day the Tverskoy District Court of Moscow
dismissed the applicant’s complaint. It referred to provisions
of the Assemblies Act concerning the authorities responsible for
ensuring the safety of events (sections 12 and 14), who were entitled
to suggest changing the time or venue, or both, of a proposed event
on safety grounds (section 12). It also noted that a public event
could be held at any suitable venue unless it threatened to cause the
collapse of buildings or constructions or entailed safety risks for
its participants (section 8). It then noted the organisers’
right to hold the event at the venue and time indicated in the notice
to the authorities, or at the venue and time agreed with the
authorities if they had suggested a change, and stated that it was
prohibited to hold the event if the notice had not been submitted on
time or if the organisers had failed to agree to a change of venue or
time proposed by the authorities (section 5). Finally, the court
noted that the organisers, officials or other individuals were
prohibited from interfering with the expression of opinion by the
participants in the public event unless they breached public order or
contravened the format of the event (section 18). It concluded on the
basis of these provisions that the authorities could ban a public
event on safety grounds and that it was for the organisers to submit
a notice suggesting a change of venue and time for consideration by
the authorities. It considered that the refusal to hold the event in
the present case had legitimate grounds and that the applicant’s
right to hold assemblies and other public events had not been
breached.
- The applicant lodged an appeal, relying on section 12
of the Assemblies Act, which imposed an obligation on the
authorities, and not the organisers, to make a reasoned proposal to
change the venue or the time of the event as indicated in the notice.
He also challenged the finding that the ban was justified on safety
grounds, claiming that concerns for safety could have been addressed
by providing protection to those taking part in the event.
- On 27 May 2006 the applicant and several other persons
participated in a conference celebrating the International Day
Against Homophobia, at which they announced their intention to gather
in the Aleksandrovskiy Garden to lay flowers at the war memorial, the
Tomb of the Unknown Soldier, allegedly to commemorate the victims of
fascism, including gay and lesbian victims, and to hold a
fifteen-minute picket at the Moscow mayor’s office to protest
against the ban on the march and the picketing.
- Later that day the applicant and about fifteen other
persons arrived at the Aleksandrovskiy Garden to find the gates
closed, with police patrolling the access. According to the
applicant, there were about 150 policemen from the special riot squad
(OMON), and also about a hundred individuals protesting against the
flower-laying event planned by the applicant and his fellow
participants.
- The applicant was arrested and taken to the police
station to be charged with the administrative offence of breaching
the conditions for holding a demonstration.
- In the meantime, other participants in the
flower-laying event proceeded towards the Moscow mayor’s
office, with protesters pursuing and attacking them. Several persons
reportedly sustained slight injuries. According to the applicant, the
OMON arrested about one hundred persons involved in attacking those
taking part in the event.
- The applicant submitted two reports by NGOs on the
events of 27 May 2006, one prepared by the International Lesbian
and Gay Association and another one by Human Rights Watch. These
reports corroborated the applicant’s account of events.
- On 31 May 2006 Interfax quoted the mayor of Moscow as
saying in a television interview: “Those gays trying to lay
flowers at the Tomb of the Unknown Soldier ... it is a provocation.
It was a desecration of a holy place” and reiterating the
condemnation of the action on behalf of the public at large.
- On 16 June 2006 the applicant challenged before a
court the prefect’s decision of 23 May 2006 refusing to allow
the picketing. On 22 August 2006 the Taganskiy Disctrict Court
of Moscow dismissed the complaint, finding that the ban had been
justified on safety grounds. The applicant appealed.
- On 19 September 2006 the Moscow City Court examined
the appeal against the judgment of 26 May 2006. It upheld the
first-instance judgment as lawful and justified in the circumstances.
- On 28 November 2006 the Moscow City Court examined the
appeal against the judgment of 22 August 2006 and dismissed it on
essentially the same grounds.
B. Pride March and picketing on 27 May 2007
- In 2007 the applicant, together with other
individuals, decided to organise a march similar to the one attempted
in 2006.
- On 15 May 2007 the organisers submitted a notice to
the mayor of Moscow, stating the date, time and route of the intended
march and its purpose, all of which were identical to the march
proposed the previous year, except that the estimated number of
participants was 5,100.
- On 16 May 2007 the Department for Liaison with
Security Authorities of the Moscow Government informed the applicant
that permission to hold the march had been refused on the grounds of
potential breaches of public order and violence against the
participants, with reference to the events of the previous year. The
organisers were warned that holding the event without permission
would render them liable.
- Having received the above reply, the organisers
submitted a notice with a view to holding other events on the same
date and time as the march for which permission had been refused.
They informed the prefect of the Moscow Central Administrative
Circuit of their intention to hold a picket in front of the Moscow
mayor’s office at Tverskaya Square and another one in
Novopushkinskiy Park.
- On 23 May 2007 the organisers were informed that the
prefect had refused permission to hold the picket at both venues on
the grounds of public order, prevention of riots and protection of
health, morals and the rights and freedoms of others. They were
warned that they would be held liable for holding any unauthorised
picketing.
- On 26 May 2007 the applicant and several other persons
announced at the annual “LGBT Rights are Human Rights”
conference that they would meet the following day in front of the
Moscow mayor’s office to file a petition together in protest
against the ban on the march and the picketing.
- On 27 May 2007 the applicant and about twenty other
individuals were stopped by the police as they attempted to approach
the mayor’s office. The applicant and two other men were
detained at the police station for twenty-four hours on charges of
having committed the administrative offence of disobeying a lawful
order from the police. On 9 June 2007 the applicant was found guilty
of the administrative offence and had to pay a fine of 1,000 roubles.
That decision was upheld by the Tverskoy District Court on 21 August
2007.
- On 30 May 2007 the applicant challenged before a court
the decision of 16 May 2007 by the mayor of Moscow refusing
permission to hold the march. In particular, he alleged that under
the Assemblies Act, the authorities were not entitled to ban public
events, but could only propose changing their time and location,
which in the present case they had not. He also argued that official
disapproval of the purpose of a public event was not by itself a
sufficient ground, in a democratic society, for a ban.
- On 26 June 2007 the applicant challenged before a
court the prefect’s decision of 23 May 2007 refusing permission
for the picketing.
- On 24 August 2007 the Taganskiy District Court of
Moscow dismissed the complaint concerning the ban on the picketing,
finding that the ban had been justified on safety grounds. That
judgment was upheld on 8 November 2007 by the Moscow City Court.
- On 4 September 2007 the Tverskoy District Court
dismissed the applicant’s claim, upholding the grounds for the
ban on the march and confirming the lawfulness of the authorities’
acts. That judgment was upheld on 6 December 2007 by the Moscow City
Court.
C. Pride Marches in May 2008 and picketing in May and
June 2008
- In 2008 the applicant, together with other
individuals, decided to organise several marches similar to the ones
attempted the two previous years.
- On 18 April 2008 the organisers submitted a notice to
the mayor of Moscow stating the date, time and route of ten intended
marches to be held on 1 and 2 May 2008 in central Moscow.
- On 24 April 2008 the Department for Liaison with
Security Authorities of the Moscow Government informed the applicant
that permission to hold all the marches had been refused on the
grounds of potential breaches of public order and violence against
the participants.
- Having received the above reply, on 22 April 2008 the
organisers submitted a notice with a view to holding a further
fifteen marches from 3 to 5 May 2008.
- On 28 April 2008 the Department for Liaison with
Security Authorities of the Moscow Government informed the applicant
that permission to hold the fifteen marches had also been refused on
the same grounds.
- The applicant submitted a number of alternative
proposals for holding marches on different dates in May 2008 and in
various locations. These proposals were refused, on the same grounds,
as follows:
(i) applications of 25 and 28 April 2008 (30 marches in
total), refused on 5 May 2008;
(ii) application of 30 April 2008 (20 marches), refused on
7 May 2008;
(iii) application of 5 May 2008 (20 marches), refused on 8
May 2008;
(iv) application of 8 May 2008 (15 marches), refused on 13
May 2008;
(v) application of 12 May 2008 (15 marches), refused on 16
May 2008;
(vi) application of 15 May 2008 (15 marches), refused on
21 May 2008;
(vii) application of 19 May 2008 (15 marches), refused on
23 May 2008.
- On 16 May 2008 the applicant gave notice to the
President of Russia of his intention to hold a march in the
Aleksandrovskiy Garden on 31 May 2008. He received no reply to the
notice.
- From 28 April 2008 to 17 June 2008 the applicant
brought several court actions challenging the decisions by the mayor
of Moscow refusing permission to hold the marches. The Tverskoy
District Court joined these applications and on 17 September 2008 it
dismissed the applicant’s claim, upholding the grounds for the
bans on the marches and confirming the lawfulness of the authorities’
acts. That judgment was upheld on 2 December 2008 by the Moscow
City Court.
- In the meantime, the applicant also attempted to
organise picketing to call for criminal charges to be brought against
the mayor of Moscow for hindering the holding of public events. The
picket intended to be held on 17 May 2008 was prohibited on 13
May 2008 on the same grounds as those given for the previous events.
This decision was reviewed and upheld by the Taganskiy District Court
on 22 July 2008 and, on appeal, by the Moscow City Court on 14
October 2008.
- On 1 June 2008 the applicant, in a group of twenty
individuals, held a picket on Bolshaya Nikitskaya Street for about
ten minutes.
II. RELEVANT DOMESTIC LAW
- Article 30 of the Constitution of the Russian
Federation provides that everyone has the right to freedom of
association. Article 55 § 3 provides that rights and freedoms
may be restricted by federal laws for the protection of
constitutional principles, public morals, health and the rights and
lawful interests of others, and to ensure the defence and security of
the State.
- The Federal Law on Assemblies, Meetings,
Demonstrations, Marches and Picketing (no. 54-FZ of 18 August 2004 –
“the Assemblies Act”) provides in so far as relevant as
follows:
Section 5: Organisation of a public event
“...
3. The organiser of a public event shall have
the right:
(i) to hold meetings, demonstrations, marches
and pickets at the venues and time specified in the notice
on holding the public event or as altered by agreement with the
executive authority of the subject of the Russian Federation or the
municipal body; to hold assemblies at a venue that has been specially
allocated or adapted to ensure the safety of citizens while such
assemblies are held;
...
(v) in holding assemblies, meetings,
demonstrations
and marches,
to use sound-amplifying technical devices (audio, video and other
equipment) with a level of sound corresponding to the standards and
norms established in the Russian Federation.
4. The organiser of the public event must:
(i) submit to the executive authority of the
subject of the Russian Federation or the municipal body a notice on
holding the public event in accordance with the procedure prescribed
by section 7 of this Federal Law;
(ii) no later than three days prior to the
holding of the public event (except in the case of an assembly
or picket held by a single participant), notify in writing the
executive authority of the subject of the Russian Federation or the
municipal body of the acceptance (or non-acceptance) of its proposal
to alter the venue and/or time of the public event as specified in
the notice
of the event;
(iii) ensure compliance with the conditions
for holding the public event as specified in the notice of the event
or with any conditions that have been altered as a result of an
agreement reached with the executive authority of the subject of the
Russian Federation or the municipal body;
(iv) require the participants in the public
event to observe public order and comply with the conditions for
holding the public event. Persons who fail to comply with the lawful
requirements of the organiser of the public event may be expelled
from the venue of the public event;
(v) ensure, within their competence, public
order and the safety of citizens when holding the public
event and, in instances specified by this Federal Law, perform
this obligation jointly with the authorised representative of the
executive authority of the subject of the Russian Federation or the
municipal body and the authorised representative of the Ministry of
the Interior and comply with all their lawful requirements;
...
5. The organiser of the public event shall
have no right to hold it if the notice
on holding the public event has not been submitted in due time or no
agreement has been reached with the executive authority of the
subject of the Russian Federation or the municipal body on their
reasoned proposal as to the alteration of the venue and/or time of
the public event.”
Section 8: Venue for holding a public
event
“A public event may be held at any venue suitable
for holding the event if its conduct does not create a threat of the
collapse of buildings or structures or other threats to the safety of
the participants in the public event. Conditions
governing bans or restrictions on holding a public event at
particular venues may be specified by federal laws.
...”
Section 12: Obligations of the executive
authority of the subject of the Russian Federation and the municipal
body
“1. The executive authority of the
subject of the Russian Federation or the municipal body, upon
receiving notice of the public event, must:
...
(ii) inform the organiser of the public
event, within three days of receipt of the notice on holding the
event (or, if a notice on holding a picket by a group of individuals
is submitted within less than five days before its intended date, on
the day of its receipt), of a reasoned proposal to alter the venue
and/or time of the public event, as well as of any proposal for the
organiser of the event to bring the aims, form or other conditions
for holding the event as indicated in the notice into line with the
requirements of this Federal Law;
(iii) designate, depending on the form of the
public event and the number of participants, an authorised
representative to assist the event organisers in conducting the event
in accordance with this Federal Law. The authorised representative
shall be formally appointed by a written order which must be
forwarded to the organiser of the public event in advance [of the
event];
...
(v) ensure, within its competence and jointly
with the organiser of the public event and the authorised
representative of the Ministry of the Interior, public order and
safety of citizens while holding the event and, if necessary, provide
them with urgent medical aid;
...”
Section 14: Rights and obligations of the
authorised representative of the Ministry of the Interior
“...
3. The authorised representative of the
Ministry of the Interior must:
(i) facilitate the conduct of the public
event;
(ii) ensure, jointly with the organiser of
the public event and the executive authority of the subject of the
Russian Federation or the municipal body, public order and safety of
citizens and compliance with the law while holding the public event.”
Section 18: Securing the conditions for
holding a public event
“1. The organiser of the public event,
officials or other individuals may not prevent the participants in
the event from expressing their opinion in a manner that does not
breach public order or the conditions for holding the public event.
...”
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
- The following are extracts from Recommendation
CM/Rec(2010)5 of the Committee of Ministers of the Council of Europe
to member States on measures to combat discrimination on grounds of
sexual orientation or gender identity:
“...
III. Freedom of expression and peaceful assembly
13. Member states should take appropriate measures to
ensure, in accordance with Article 10 of the Convention, that the
right to freedom of expression can be effectively enjoyed, without
discrimination on grounds of sexual orientation or gender identity,
including with respect to the freedom to receive and impart
information on subjects dealing with sexual orientation or gender
identity.
14. Member states should take appropriate
measures at national, regional and local levels to ensure that the
right to freedom of peaceful assembly, as enshrined in Article 11
of the Convention, can be effectively enjoyed, without discrimination
on grounds of sexual orientation or gender identity.
15. Member states should ensure that law
enforcement authorities take appropriate measures to protect
participants in peaceful demonstrations in favour of the human rights
of lesbian, gay, bisexual and transgender persons from any attempts
to unlawfully disrupt or inhibit the effective enjoyment of their
right to freedom of expression and peaceful assembly.
16. Member states should take appropriate
measures to prevent restrictions on the effective enjoyment of the
rights to freedom of expression and peaceful assembly resulting from
the abuse of legal or administrative provisions, for example on
grounds of public health, public morality and public order ...”
- On 6 June 2006 the Council of Europe Commissioner for
Human Rights issued the following press release:
“In a statement given in St Petersburg yesterday,
Commissioner Hammarberg stressed that the rights to freedom of
expression and peaceful assembly belong to all people and that the
authorities have a duty to protect peaceful demonstrators. The
Commissioner regrets that his statement has been misrepresented by
the news agency RIA Novosti (Report by RIA Novosti dated 5 June 2006
at 13:33).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The applicant complained of a violation of his right
to peaceful assembly. He claimed that the ban repeatedly imposed by
the Moscow authorities on holding the Pride March and the picketing
had not been in accordance with the law, had not pursued any
legitimate aim and had not been necessary in a democratic society. He
relied on Article 11 of the Convention, which reads as follows:
“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.”
- The Government contested that argument. They submitted
that the authorities had acted lawfully and within their margin of
appreciation when deciding to prohibit the events at issue.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
- The Government contended that the ban on the events
organised by the applicant had been imposed in accordance with the
law, had pursued a legitimate aim and had been necessary in a
democratic society.
- They first pointed out that Article 55 § 3 of the
Constitution and section 8(1) of the Assemblies Act should be
construed as providing for restrictions on public events on safety
grounds and for the protection of public order. In the present case,
the events which the applicant had sought to hold had carried an
obvious risk of confrontation between the participants and their
opponents. They claimed to have received numerous public petitions
from various political, religious, governmental and non-governmental
organisations calling for the ban, some of which included threats of
violence should the events go ahead. They were therefore concerned
about the safety of the participants and the difficulties in
maintaining public order during the events.
- The Government further claimed that Article 11 §
2 should be interpreted as providing for a wide margin of
appreciation within which the authorities should be able to choose
measures appropriate for maintaining public order. They referred to
the cases of Barankevich v. Russia (no.10519/03, 26 July 2007)
and Plattform “Ärzte für das Leben”
v. Austria (21 June 1988, Series A no. 139) for principles
governing the authorities’ conduct at public events marked by a
high probability of violence. In the present case, the Government
asserted that they could not have avoided banning the event, because
no other measure could have adequately addressed the security risks.
They further claimed that if the Court were to give an assessment
different from that of the domestic authorities it would put itself
in the position of a “court of fourth instance”.
- In addition to that, the Government submitted that the
event in question had had to be banned for the protection of morals.
They emphasised that any promotion of homosexuality was incompatible
with the “religious doctrines for the majority of the
population”, as had been made clear in the statements by the
religious organisations calling for the ban. They contended that
allowing the gay parades would be perceived by believers as an
intentional insult to their religious feelings and a “terrible
debasement of their human dignity”.
- The Government relied on the International Covenant on
Economic, Social and Cultural Rights and the International Covenant
on Civil and Political Rights, which guaranteed individuals respect
for and protection of their religious and moral beliefs and the right
to bring up their children in accordance with them. They claimed that
authorising gay parades would breach the rights of those people whose
religious and moral beliefs included a negative attitude towards
homosexuality. They further noted that in the case of
Otto-Preminger-Institut v. Austria (20 September 1994, §§
52 and 56, Series A no. 295 A) the Court had recognised the
great role of religion in people’s everyday life, which should
be taken into account in order to prevent religious beliefs from
becoming the subject of unreasonable and insulting accusations. They
concluded on that basis that the State must take into account the
requirements of the major religious associations and that “the
democratic State must protect society from destructive influence on
its moral fundamentals, and protect the human dignity of all
citizens, including believers”. In the present case, the ideas
of the event organisers were not neutral to the rest of society, but
had actually encroached on the rights, lawful interests and human
dignity of believers.
- The Government also alleged that there was no
consensus between the Council of Europe member States as to the
extent to which homosexuality was accepted in each country. According
to them, “[s]uch relations are allowed in some countries, in
other countries they are considerably restricted”. For this
reason they claimed that the domestic authorities were better
informed as to what might insult believers in the respective
communities. To illustrate this point they referred to the case of
Dudgeon v. the United Kingdom (22 October 1981, §§
56-58, Series A no. 45), in which the Court had discussed the
diversity of moral and cultural values in the context of criminal
liability for homosexual conduct, which had existed at the material
time in Northern Ireland, while stressing that they did not adhere to
the conclusion arrived at by the Court in that case. They also cited
at length the case of Müller and Others v. Switzerland
(24 May 1988, Series A no. 133), where the Court had upheld
measures by the authorities restricting general access to an
exhibition of paintings depicting “crude sexual relations,
particularly between people and animals”. They suggested that
gay parades should be viewed from the same standpoint, taking into
account the interests of involuntary spectators, especially children.
In their opinion, any form of celebration of homosexual behaviour
should take place in private or in designated meeting places with
restricted access. They added that such clubs, bars and entertainment
facilities existed aplenty in Moscow (listing twenty-four examples of
such places) and were well frequented, their operation not being
hindered by the authorities.
- In the Government’s view, in Moscow the public
was not yet ready to accept the holding of gay parades in the city,
unlike in Western countries, where such celebrations were regular
occurrences. It was thus the authorities’ duty to demonstrate
sensitivity to the existing public resentment of any overt
manifestation of homosexuality. To that end they quoted a Russian
celebrity performer, whose stage image capitalised on exaggeration of
homosexual stereotypes, as saying that gay parades should not be
conducted. They also referred to a statement apparently made by an
organisation called “The Union of Orthodox Citizens”,
which promised to conduct a mass protest “should the
homosexuals try to hold the march in Moscow”. Likewise, the
Orthodox Church was quoted as objecting to the gay parade as
propaganda promoting sin, as had the Supreme Mufti for Russia, who
had threatened mass protests by Muslims of Russia “as well as
by all normal people” should the parade go ahead. They also
quoted, although referring to his statement as extreme, the head
Muslim authority of Nizhniy Novgorod, who had said that “as a
matter of necessity, homosexuals must be stoned to death”.
- Finally, the Government claimed that the prohibition
of the gay parades in Moscow had been supported by the Council of
Europe Commissioner for Human Rights. They relied on the statement
reported in the news, although they did not mention that this
statement had been denied by the Commissioner (see paragraph 52
above).
(b) The applicant
- The applicant contested the Government’s
submissions on every point. First, he disagreed that the ban on the
public events he had sought to hold had been imposed in accordance
with the law. He pointed out that neither the Assemblies Act nor any
other legislative instrument provided for a ban on public events. The
restrictions set out in section 8(1) of the Act on holding events in
venues which were unsuitable for safety reasons required the
authorities to suggest another venue, as set out in section 12 of the
Act, and not to ban the event. In any case, even if the Court were to
accept that the alleged impossibility of avoiding public disorder at
any venue could provide a justification for the ban under domestic
law, the applicant maintained that the ban did not comply with two
other requirements of Article 8 § 2 of the Convention, in that
it had failed to pursue a legitimate aim and had not been necessary
in a democratic society.
- As regards the three legitimate aims referred to by
the Government, namely the protection of public safety and the
prevention of disorder, the protection of morals and the protection
of the rights and freedoms of others, the applicant considered all of
them inapplicable. He argued that the reference to the protection of
morals was not justified because the Government’s definition of
“morals” included only attitudes that were dominant in
public opinion and did not encompass the notions of diversity and
pluralism. Moreover, the events at issue could not by their nature
affect morals because they had been intended as a demonstration in
favour of human rights and civil liberties for the protection and
equality of sexual minorities. No intention to demonstrate nudity or
sexually explicit or provocative behaviour or material had ever been
expressed by the organisers in their applications or public
statements. The Government had not shown that any harm would have
been caused to society or third persons by the proposed events. On
the contrary, the applicant argued, the events would have been of
benefit to Russian society by advocating the ideas of tolerance and
respect for the rights of the lesbian and gay population.
- He further contested the aims of protection of public
safety and prevention of disorder because the planned marches and
picketing had been intended to be strictly peaceful and orderly
events by themselves. As regards the potential riots to be caused by
the counter-demonstrators, the Government had not at any stage
assessed the scale of possible clashes with the events’
opponents and therefore their argument of inability to provide
sufficient protection to the gay parades was unsubstantiated. In the
three reference years the applicant had submitted numerous
applications suggesting different formats and venues for the events,
and the authorities had never given reasons as to why it was not
possible to make security arrangements for any of them.
- Finally, the applicant contended that the ban imposed
on the events throughout the reference period had not been necessary
in a democratic society. He referred to the Court’s established
case-law, stating that the mere possibility of confusing and even
shocking part of society could not be regarded as a sufficient ground
for such a sweeping measure as a total ban on the events in question
(he referred to Bączkowski and Others v. Poland, no.
1543/06, § 64, ECHR 2007 VI). He submitted that the measure
repeatedly taken in the present case was gravely disproportionate to
the aims allegedly pursued by the authorities and was incompatible
with the notion of a democratic society which was “pluralistic,
tolerant and broadminded” (ibid., § 63). He argued that
the authorities had failed even to attempt to comply with their
obligation under Article 11 to take reasonable and appropriate
measures to enable lawful demonstrations to proceed peacefully. They
had banned the events, which in their view were likely to be
attacked, instead of protecting them. Moreover, they had endorsed the
disapproval expressed by the events’ opponents, claiming that
they were immoral and thus depriving the minority of a lawful right
to hold a peaceful demonstration, a right that was inherent in a
society striving to be democratic.
2. The Court’s assessment
- The Court observes that the Moscow authorities imposed
a ban on the Pride March and picketing in 2006, 2007 and 2008 and
enforced the ban by dispersing events held without authorisation and
by finding the applicant and other participants who had breached the
ban guilty of an administrative offence. There is accordingly no
doubt that there has been an interference with the exercise of the
applicant’s freedom of peaceful assembly guaranteed by Article
11 § 1 of the Convention. In fact, the existence of the
interference in the present case is not in dispute between the
parties.
- The Court further notes that the parties disagreed as
to whether the Moscow authorities’ acts were prescribed by law.
They also disagreed as to whether the interference served a
legitimate aim. However, the Court may dispense with ruling on these
points because, irrespective of the aim and the domestic lawfulness
of the ban, it fell short of being necessary in a democratic society,
for the reasons set out below. To the extent that these issues are
relevant to the assessment of the proportionality of the interference
they will be addressed in paragraphs 78-79 below (see Christian
Democratic People’s Party v. Moldova, no. 28793/02, §
53, ECHR 2006 II).
- In so far as the proportionality of the interference
is concerned, the Court observes that the relevant principles were
set out in its judgment in Bączkowski and Others (cited
above):
“61. As has been stated many times in the Court’s
judgments, not only is democracy a fundamental feature of the
European public order but the Convention was designed to promote and
maintain the ideals and values of a democratic society. Democracy,
the Court has stressed, is the only political model contemplated in
the Convention and the only one compatible with it. By virtue of the
wording of the second paragraph of Article 11, and likewise of
Articles 8, 9 and 10 of the Convention, the only necessity capable of
justifying an interference with any of the rights enshrined in those
Articles is one that may claim to spring from a ‘democratic
society’ (see Refah Partisi (the Welfare Party) and Others
v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98,
§§ 86-89, ECHR 2003-II, and Christian Democratic
People’s Party, [cited above]).
62. While in the context of Article 11 the
Court has often referred to the essential role played by political
parties in ensuring pluralism and democracy, associations formed for
other purposes are also important to the proper functioning of
democracy. For pluralism is also built on genuine recognition of, and
respect for, diversity and the dynamics of cultural traditions,
ethnic and cultural identities, religious beliefs and artistic,
literary and socio-economic ideas and concepts. The harmonious
interaction of persons and groups with varied identities is essential
for achieving social cohesion. It is only natural that, where a civil
society functions in a healthy manner, the participation of citizens
in the democratic process is to a large extent achieved through
belonging to associations in which they may integrate with each other
and pursue common objectives collectively (see Gorzelik and Others
v. Poland [GC], no. 44158/98, § 92, ECHR 2004-I).
63. Referring to the hallmarks of a
‘democratic society’, the Court has attached particular
importance to pluralism, tolerance and broadmindedness. In that
context, it has held that although individual interests must on
occasion be subordinated to those of a group, democracy does not
simply mean that the views of the majority must always prevail: a
balance must be achieved which ensures the fair and proper treatment
of minorities and avoids any abuse of a dominant position (see Young,
James and Webster v. the United Kingdom, 13 August 1981, Series A
no. 44, § 63, and Chassagnou and Others v. France [GC],
nos. 25088/95 and 28443/95, § 112, ECHR 1999-III).
64. In Informationsverein Lentia and
Others v. Austria (24 November 1993, § 38, Series
A no. 276) the Court described the State as the ultimate
guarantor of the principle of pluralism. Genuine and effective
respect for freedom of association and assembly cannot 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 purpose of
Article 11 nor with that of the Convention in general. There may thus
be positive obligations to secure the effective enjoyment of these
freedoms (see Wilson and the National Union of Journalists and
Others v. the United Kingdom, nos. 30668/96, 30671/96
and 30678/96, § 41, ECHR 2002-V, and Ouranio Toxo v
Greece, no. 74989/01, § 37, ECHR 2005-X). This obligation is
of particular importance for persons holding unpopular views or
belonging to minorities, because they are more vulnerable to
victimisation.”
- Turning to the circumstances of the present case, the
Court observes that the Government put forward two reasons for
imposing the ban on the events organised by the applicant.
- Their first argument, which also formed the ground on
which the events were banned by the domestic authorities, related to
concerns for the participants’ safety and to the prevention of
disorder. They alleged that the Moscow authorities, having received
numerous protest petitions, had realised that any such event would
cause a large-scale controversy with various groups who objected to
any demonstrations supporting or promoting the interests of lesbians,
gays or other sexual minorities. The petitions cited by the
Government (paragraph 62 above), however, were not all of identical
gist. Some petitioners, such as the Orthodox Church, simply expressed
their objection to the events and to the general idea of people being
homosexual and identifying themselves as such. Others, such as the
Supreme Mufti, informed the authorities of their intention to hold a
protest against the events, whereas the senior Muslim authority in
Nizhniy Novgorod threatened violence.
- The Court has previously stressed in this connection
that freedom of assembly as enshrined in Article 11 of the Convention
protects a demonstration that may annoy or cause offence to persons
opposed to the ideas or claims that it is seeking to promote (see
Stankov and the United Macedonian Organisation Ilinden v.
Bulgaria, nos. 29221/95 and 29225/95, § 90, ECHR
2001-IX). The participants must be able to hold the demonstration
without having to fear that they will be subjected to physical
violence by their opponents. It is thus the duty of Contracting
States to take reasonable and appropriate measures to enable lawful
demonstrations to proceed peacefully (see Plattform “Ärzte
für das Leben”, cited above, §§ 32
and 34).
- The Court cannot accept the Government’s
argument that these petitions should be viewed as a general
indication that the Pride March and the picketing had the potential
to cause public disorder. The first group of petitions, calling for
the events to be prohibited because the petitioners considered them
immoral, without a threat of immediate counteraction at the site of
the events, were irrelevant to safety considerations. They could only
be taken into account for the purpose of restrictions to be imposed
for the protection of morals, an issue that will be specifically
addressed below.
- The next group of petitions, indicating the authors’
intention to engage in protest actions at the site of the events
because they found them objectionable, should, on the contrary, have
been carefully assessed from the standpoint of security arrangements.
As a general rule, where a serious threat of a violent
counter-demonstration exists, the Court has allowed the domestic
authorities a wide discretion in the choice of means to enable
assemblies to take place without disturbance (see Plattform “Ärzte
für das Leben”, loc. cit.). However, the mere
existence of a risk is insufficient for banning the event: in making
their assessment the authorities must produce concrete estimates of
the potential scale of disturbance in order to evaluate the resources
necessary for neutralising the threat of violent clashes (see
Barankevich, cited above, § 33). In the present case, no
preliminary assessment of the risks posed by counter-demonstrations
had been carried out. The subsequent events revealed that there was a
potential total of about a hundred counter-protesters, a figure that
is significant but by no means overwhelming on the scale of a city
such as Moscow. The Court observes, moreover, that only a few of the
petitions cited by the Government expressed determination on the part
of the counter-protesters to proceed by unlawful means. The
Government did not make any submissions as to whether any of the
petitioners had attempted to give notice of their
counter-demonstration. Had they done so, the authorities could have
made arrangements to ensure that both events proceeded peacefully and
lawfully, allowing both sides to achieve the goal of expressing their
views without clashing with each other. It was for the Moscow
authorities to address potential counter-protesters – whether
by making a public statement or by replying to their petitions
individually – in order to remind them to remain within the
boundaries of the law when carrying out any protest actions.
- As regards any statements calling for violence and
inciting offences against the participants in a public event, such as
those by a Muslim cleric from Nizhniy Novgorod, who reportedly said
that homosexuals must be stoned to death (see paragraph 62 above), as
well as any isolated incidents of threats of violence being put into
practice, they could have adequately been dealt with through the
prosecution of those responsible. However, it does not appear that
the authorities in the present case reacted to the cleric’s
call for violence in any other way than banning the event he
condemned. By relying on such blatantly unlawful calls as grounds for
the ban, the authorities effectively endorsed the intentions of
persons and organisations that clearly and deliberately intended to
disrupt a peaceful demonstration in breach of the law and public
order.
- In the light of the above findings, the Court
concludes that the Government failed to carry out an adequate
assessment of the risk to the safety of the participants in the
events and to public order. It reiterates that if every probability
of tension and heated exchange between opposing groups during a
demonstration were to warrant its prohibition, society would be faced
with being deprived of the opportunity of hearing differing views on
any question which offends the sensitivity of the majority opinion
(see Stankov and the United Macedonian Organisation Ilinden,
cited above, § 107). In the present case, the Court cannot
accept the Government’s assertion that the threat was so great
as to require such a drastic measure as banning the event altogether,
let alone doing so repeatedly over a period of three years.
Furthermore, it appears from the public statements made by the mayor
of Moscow, as well as from the Government’s observations, that
if security risks played any role in the authorities’ decision
to impose the ban, they were in any event secondary to considerations
of public morals.
- The Court observes that the mayor of Moscow on many
occasions expressed his determination to prevent gay parades and
similar events from taking place, apparently because he considered
them inappropriate (see paragraphs 7, 8, 10, 16 and 24 above). The
Government in their observations also pointed out that such events
should be banned as a matter of principle, because propaganda
promoting homosexuality was incompatible with religious doctrines and
the moral values of the majority, and could be harmful if seen by
children or vulnerable adults.
- The Court observes, however, that these reasons do not
constitute grounds under domestic law for banning or otherwise
restricting a public event. Accordingly, no such arguments were put
forward in the domestic proceedings, which remained focused on
security issues. The Court is not convinced that the Government may
at this stage substitute one Convention-protected legitimate aim for
another one which never formed part of the domestic balancing
exercise. Moreover, it considers that in any event the ban was
disproportionate to either of the two alleged aims.
- The Court reiterates that the guarantees of Article 11
of the Convention apply to all assemblies except those where the
organisers and participants have violent intentions or otherwise deny
the foundations of a “democratic society” (see G. v.
Germany, no. 13079/87, Commission decision of 6 March 1989,
Decisions and Reports (DR) 60, p. 256, and Christians against
Racism and Fascism v. the United Kingdom, Commission decision of
16 July 1980, DR 21, p. 138). As the Court stated in Sergey
Kuznetsov v. Russia (no. 10877/04, § 45, 23 October 2008):
“any measures interfering with the freedom of assembly and
expression other than in cases of incitement to violence or rejection
of democratic principles – however shocking and unacceptable
certain views or words used may appear to the authorities – do
a disservice to democracy and often even endanger it.”
- The Court further reiterates that it would be
incompatible with the underlying values of the Convention if the
exercise of Convention rights by a minority group were made
conditional on its being accepted by the majority. Were this so, a
minority group’s rights to freedom of religion, expression and
assembly would become merely theoretical rather than practical and
effective as required by the Convention (see Artico v. Italy,
13 May 1980, § 33, Series A no. 37, and Barankevich,
cited above, § 31).
- In the present case, having carefully studied all the
material before it, the Court does not find that the events organised
by the applicant would have caused the level of controversy claimed
by the Government. The purpose of the marches and picketing, as
declared in the notices of the events, was to promote respect for
human rights and freedoms and to call for tolerance towards sexual
minorities. The events were to take the form of a march and
picketing, with participants holding banners and making announcements
through loudspeakers. At no stage was it suggested that the event
would involve any graphic demonstration of obscenity of a type
comparable to the exhibition in the case of Müller and Others
(cited above) referred to by the Government. The applicant submitted,
and it was not contested by the Government, that the participants had
not intended to exhibit nudity, engage in sexually provocative
behaviour or criticise public morals or religious views. Moreover, it
transpires from the mayor’s comments (see, in particular,
paragraphs 16 and 24 above) and the Government’s observations
(see paragraph 61 above) that it was not the behaviour or the attire
of the participants that the authorities found objectionable but the
very fact that they wished to openly identify themselves as gay men
or lesbians, individually and as a group. The Government admitted, in
particular, that the authorities would reach their limit of tolerance
towards homosexual behaviour when it spilt over from the strictly
private domain into the sphere shared by the general public (ibid.,
in fine).
- To justify this approach the Government claimed a wide
margin of appreciation in granting civil rights to people who
identify themselves as gay men or lesbians, citing the alleged lack
of European consensus on issues relating to the treatment of sexual
minorities. The Court cannot agree with that interpretation. There is
ample case-law reflecting a long-standing European consensus on such
matters as abolition of criminal liability for homosexual relations
between adults (see Dudgeon, cited above; Norris
v. Ireland, 26 October 1988, Series A no. 142; and Modinos
v. Cyprus, 22 April 1993, Series A no. 259), homosexuals’
access to service in the armed forces (see Smith and Grady v. the
United Kingdom, nos. 33985/96 and 33986/96, ECHR 1999-VI), the
granting of parental rights (see Salgueiro da Silva Mouta v.
Portugal, no. 33290/96, ECHR 1999-IX), equality in tax matters
and the right to succeed to the deceased partner’s tenancy (see
Karner v. Austria, no. 40016/98, ECHR 2003-IX); more
recent examples include equal ages of consent under criminal law for
heterosexual and homosexual acts (see L. and V. v. Austria,
nos. 39392/98 and 39829/98, ECHR 2003-I). At the same time, there
remain issues where no European consensus has been reached, such as
granting permission to same-sex couples to adopt a child (see Fretté
v. France, no. 36515/97, ECHR 2002-I, and E.B. v. France
[GC], no. 43546/02, ECHR 2008 ...) and the right to marry, and
the Court has confirmed the domestic authorities’ wide margin
of appreciation in respect of those issues. This, however, does not
dispense the Court from the requirement to verify whether in each
individual case the authorities did not overstep their margin of
appreciation by acting arbitrarily or otherwise. Indeed, the Court
has consistently held that the State’s margin of appreciation
goes hand in hand with European supervision (see Handyside v. the
United Kingdom, 7 December 1976, § 49, Series A no. 24).
The Government’s reference to the concept of a “court of
fourth instance” (see § 58 above) cannot prevent the Court
from exercising its duties in that regard in accordance with the
Convention and established case-law.
- In any event, the absence of a European consensus on
these questions is of no relevance to the present case because
conferring substantive rights on homosexual persons is fundamentally
different from recognising their right to campaign for such rights.
There is no ambiguity about the other member States’
recognition of the right of individuals to openly identify themselves
as gay, lesbian or any other sexual minority, and to promote their
rights and freedoms, in particular by exercising their freedom of
peaceful assembly. As the Government rightly pointed out,
demonstrations similar to the ones banned in the present case are
commonplace in most European countries. It is also worth noting that
in the case of Bączkowski and Others it was the domestic
authorities which first acknowledged the illegal nature of the ban
initially imposed on similar marches, when the ban was quashed by the
appeal court (cited above, § 22).
- The Court is therefore unable to accept the
Government’s claim to a wide margin of appreciation in the
present case. It reiterates that any decision restricting the
exercise of freedom of assembly must be based on an acceptable
assessment of the relevant facts (see, among other authorities,
Christian Democratic People’s Party, cited above, §
70). The only factor taken into account by the Moscow authorities was
the public opposition to the event, and the officials’ own
views on morals.
- The mayor of Moscow, whose statements were essentially
reiterated in the Government’s observations, considered it
necessary to confine every mention of homosexuality to the private
sphere and to force gay men and lesbians out of the public eye,
implying that homosexuality was a result of a conscious, and
antisocial, choice. However, they were unable to provide
justification for such exclusion. There is no scientific evidence or
sociological data at the Court’s disposal suggesting that the
mere mention of homosexuality, or open public debate about sexual
minorities’ social status, would adversely affect children or
“vulnerable adults”. On the contrary, it is only through
fair and public debate that society may address such complex issues
as the one raised in the present case. Such debate, backed up by
academic research, would benefit social cohesion by ensuring that
representatives of all views are heard, including the individuals
concerned. It would also clarify some common points of confusion,
such as whether a person may be educated or enticed into or out of
homosexuality, or opt into or out of it voluntarily. This was exactly
the kind of debate that the applicant in the present case attempted
to launch, and it could not be replaced by the officials
spontaneously expressing uninformed views which they considered
popular. In the circumstances of the present case the Court cannot
but conclude that the authorities’ decisions to ban the events
in question were not based on an acceptable assessment of the
relevant facts.
- The foregoing considerations are sufficient to enable
the Court to conclude that the ban on the events organised by the
applicant did not correspond to a pressing social need and was thus
not necessary in a democratic society.
- There has accordingly been a violation of Article 11
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant complained under Article 13 of the
Convention in conjunction with Article 11 of the Convention that he
did not have an effective remedy against the alleged violation of his
freedom of assembly. He alleged in particular that he had not had at
his disposal any procedure which would have allowed him to obtain a
final decision prior to the date of the planned demonstrations.
Article 13 of the Convention reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The Government contested this allegation, claiming
that the applicant had had the possibility of bringing judicial
proceedings and had availed himself of it.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
- The Government first indicated that the authorisation
procedure was different for marches and picketing and submitted that
the applicant had challenged the refusal of permission in respect of
both types of events in separate sets of proceedings. His claims had
been examined by the courts and rejected in reasoned decisions. All
judicial hearings had proceeded expeditiously and in any event within
the time-limits set by law.
- The Government also pointed out that the applicant had
not always taken procedural steps as soon as he could have done. In
particular, it had taken him one month and fifteen days to appeal
against the judgment of 26 May 2006, following an extension
granted to him by the court after the expiry of the statutory
time-limit of ten days. Likewise, his appeal against the judgment of
22 August 2006 had been lodged two months and ten days after the
judgment, again after the extension of the time-limit.
(b) The applicant
- The applicant contended that the judicial proceedings
of which he had availed himself to challenge the ban were not an
effective remedy because the general time-limits provided for by law
did not allow a final decision to be taken before the date of the
disputed event. He referred to the time-limits for giving notice of a
proposed event as set out in section 7(1) of the Assemblies Act, that
is, no earlier than fifteen days and no later than ten days before
the date of the event. Under Article 257 § 1 of the Code of
Civil Procedure and the provisions of the Code concerning the entry
of judgments into force, he argued that any decision in the case –
be it the first-instance judgment or the appeal decision – was
bound to become final only after the planned date of the event.
Therefore, the judicial reversal of the authorities’ refusal of
permission to hold the events would in any case have been
retrospective and therefore futile.
- He also contested the Government’s allegation
that he had unduly delayed appealing against the first-instance
judgment. He asserted that the appeals had been lodged as soon as the
full text of the judgment had been made available to him. Moreover,
he contended that the appeal proceedings had in any event been bound
to take place after the intended date of the event. Thus, the event
intended to be held on 27 May 2006 had been banned by the
first-instance court on 26 May 2006, only one day before the event.
There had been no possibility of having the appeal against the
first-instance judgment examined on the same day so that the event
could have taken place had the final decision been favourable to the
applicant. The notices he had submitted for the picketing had
suffered a similar fate. The 2007 and 2008 applications had likewise
been refused at final instance long after the intended dates of the
events. The applicant further contended that there would have been no
possibility of obtaining a final decision before the event in
question even if the first-instance judgment had allowed the
demonstration. A first-instance judgment, if not appealed against,
entered into force ten days after the date of its adoption. This
time-frame made it impossible for the organisers of an event, even
with their best efforts and forward planning, to obtain a final
decision before the scheduled date of the event, because neither the
administrative authorities nor the courts were required to complete
the proceedings before that date.
- The applicant reiterated that the date for the events
in issue had been chosen intentionally, on account of its symbolic
meaning as the anniversary of the abolition of criminal liability in
Russia for homosexual acts. Therefore, it was essential for the
demonstration, if allowed, to be held on that day.
2. The Court’s assessment
- The Court reiterates that the effect of Article 13 is
to require the provision of a domestic remedy allowing the competent
national authority both to deal with the substance of the relevant
Convention complaint and to grant appropriate relief, although
Contracting States are afforded some discretion as to the manner in
which they comply with their obligations under this provision (see,
among many other authorities, Chahal v. the United
Kingdom, 15 November 1996, § 145, Reports of Judgments
and Decisions 1996 V). In the present case the Court has
found that the applicant’s rights under Article 11 were
infringed (see paragraph 88 above). Therefore, he had an arguable
claim within the meaning of the Court’s case law and was
thus entitled to a remedy satisfying the requirements of Article 13.
- The Court reiterates that, bearing in mind that the
timing of public events is crucial for the organisers and
participants, and provided that the organisers have given timely
notice to the competent authorities, the notion of an effective
remedy implies the possibility of obtaining a ruling concerning the
authorisation of the event before the time at which it is intended to
take place (see Bączkowski and Others, cited above, §
81). It is therefore important for the effective enjoyment of freedom
of assembly that the applicable laws provide for reasonable
time-limits within which the State authorities, when giving relevant
decisions, should act (ibid., § 83).
- The Court observes that in the present case, the
applicable laws provided for time-limits for the applicant to give
notice of the events. In contrast, the authorities were not obliged
by any legally binding time-frame to give their final decisions
before the planned date of the march or the picketing. The Court is
therefore not persuaded that the judicial remedy available to the
applicant in the present case, which was of a post-hoc
character, could have provided adequate redress in respect of the
alleged violations of the Convention.
- Therefore, the Court finds that the applicant has
been denied an effective domestic remedy in respect of his complaint
concerning a breach of his freedom of assembly. Consequently, the
Court concludes that there has been a violation of Article 13 in
conjunction with Article 11 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- Lastly, the applicant complained of the
discriminatory manner in which the Moscow authorities had treated the
application to hold the public events organised by him. Relying on
Article 14 in conjunction with Article11 of the Convention, he
contended that he had suffered discrimination on the grounds of his
sexual orientation and that of other participants. Article 14 of the
Convention reads:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The Government disagreed with this allegation,
claiming that the ban had never been intended to discriminate against
the applicant.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The Government denied that the ban imposed in the
present case was discriminatory in nature. They stated that the
existence of sexual minorities was recognised by the authorities, as
well as the necessity to make provision for the absence of
discrimination against them. However, in view of their antagonistic
relations with religious groups, it could prove necessary to place
restrictions on the exercise of their rights.
- The applicant, on the contrary, alleged that the ban
on the events had been discriminatory. Despite the absence of express
reference to sexual orientation as grounds for the ban, it was clear
that the main reason for its refusal was the official disapproval of
the participants’ moral standing. The authorities had relied,
in particular, on the disapproval of the events by religious and
other groups. In addition to that, the mayor of Moscow had made a
number of discriminatory statements, and there was a clear link
between the statements and the ban.
2. The Court’s assessment
- The Court has repeatedly held that Article 14 is
not autonomous but has effect only in relation to Convention rights.
This provision complements the other substantive provisions of the
Convention and the Protocols. It has no independent existence since
it has effect solely in relation to “the enjoyment of the
rights and freedoms” safeguarded by those provisions. Although
the application of Article 14 does not presuppose a breach of those
provisions – and to this extent it is autonomous – there
can be no room for its application unless the facts at issue fall
within the ambit of one or more of the latter (see, among other
authorities, Van Raalte v. Netherlands, 21 February 1997,
§ 33, Reports 1997-I, and Gaygusuz v. Austria,
16 September 1996, § 36, Reports 1996-IV).
- It is common ground between the parties that the
facts of the case fall within the scope of Article 11 of the
Convention. Hence, Article 14 is applicable to the circumstances
of the case.
- The Court reiterates that sexual orientation is a
concept covered by Article 14 (see, among other cases, Kozak
v. Poland, no. 13102/02, 2 March 2010). Furthermore, when the
distinction in question operates in this intimate and vulnerable
sphere of an individual’s private life, particularly weighty
reasons need to be advanced before the Court to justify the measure
complained of. Where a difference of treatment is based on sex or
sexual orientation the margin of appreciation afforded to the State
is narrow, and in such situations the principle of proportionality
does not merely require the measure chosen to be suitable in general
for realising the aim sought; it must also be shown that it was
necessary in the circumstances. Indeed, if the reasons advanced for a
difference in treatment were based solely on the applicant’s
sexual orientation, this would amount to discrimination under the
Convention (ibid, § 92).
- It has been established above that the main reason
for the ban imposed on the events organised by the applicant was the
authorities’ disapproval of demonstrations which they
considered to promote homosexuality (see paragraphs 77-78 and 82
above). In particular, the Court cannot disregard the strong personal
opinions publicly expressed by the mayor of Moscow and the undeniable
link between these statements and the ban. In the light of these
findings the Court also considers it established that the applicant
suffered discrimination on the grounds of his sexual orientation and
that of other participants in the proposed events. It further
considers that the Government did not provide any justification
showing that the impugned distinction was compatible with the
standards of the Convention.
- Accordingly, the Court considers that in the present
case there has been a violation of Article 14 in conjunction with
Article 11 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 40,000 euros (EUR) in respect
of non-pecuniary damage.
- The Government contested the claim as excessive and
unreasonable. They requested the Court, if it were to find a
violation in the present case, to award the applicant the minimum
amount possible.
- Having regard to the fact that the present case
involved banning multiple demonstrations for three consecutive years
in violation of Articles 11, 13 and 14 of the Convention, the
Court, ruling on an equitable basis, awards the applicant EUR 12,000
in respect of non-pecuniary damage.
B. Costs and expenses
- The applicants also claimed 18,700 Russian roubles
(approximately EUR 483) for the costs and expenses incurred before
the domestic courts and EUR 17,027 for those incurred in the
proceedings before the Court. He submitted itemised claims, bills and
supporting documents.
- The Government considered this part of the claims
unsubstantiated. They pointed out that the lawyer’s travel
expenses for attending the hearings in the domestic courts were
unrelated to the proceedings before the Court and were therefore not
eligible for reimbursement. They further argued that these costs and
expenses could not be regarded as “actually and necessarily
incurred”, given that the three applications forming part of
this case were very similar and did not require the lawyer to develop
a separate line of argument for each case.
- According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. The Court notes that the
costs and expenses relate to three consecutive sets of domestic
proceedings and were incurred over a period of three years.
Throughout these years the applicant was represented by Mr Bartenev,
the lawyer who also represented him before the Court. Although the
three applications have been joined in one case and therefore the
applicant was dispensed from the requirement to submit separate sets
of comments on the Government’s observations for each of them,
the original applications and the accompanying documents had to be
prepared separately. The amounts incurred by the applicant on account
of legal fees do not appear excessive or disproportionate to the work
performed. In the present case, regard being had to the documents in
its possession and the above criteria, the Court considers it
reasonable to award the applicant the amounts claimed in full. It
makes an aggregate award of EUR 17,510, plus any tax that may be
chargeable to the applicant.
C. Default interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applications admissible;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds that there has been a violation of Article
13 in conjunction with Article 11 of the Convention;
- Holds that there has been a violation of Article
14 in conjunction with Article 11 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention the
following amounts, to be converted into Russian roubles at the rate
applicable at the date of settlement:
(i) EUR 12,000 (twelve thousand euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 17,510 (seventeen thousand five hundred and ten
euros) in respect of costs and expenses, plus any tax that may be
chargeable to the applicant;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
