MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1331/H46-24

6 December 2018

1331st meeting, 4-6 December 2018 (DH)

Human rights

 

H46-24 Alekseyev (Application No. 4916/07) and Bayev and Others (Application No. 67667/09) v. Russian Federation

Supervision of the execution of the European Court’s judgments

Reference documents

DH-DD(2018)1047, H/Exec(2016)1, CM/Del/Dec(2016)1273/H46-23

 

Application

Case

Judgment of

Final on

Indicator for the classification

4916/07

ALEKSEYEV

21/10/2010

11/04/2011

Complex problem

67667/09+

BAYEV AND OTHERS

20/06/2017

13/11/2017

Complex problem

Case description

The case of Alekseyev concerns the disproportionate interference with the applicant's right to freedom of assembly due to the repeated bans over a period of three years (2006, 2007 and 2008) on the holding of gay rights marches and pickets imposed by the Moscow authorities, and due to the failure to assess adequately the risk to the safety of the participants and public order, including an acceptable assessment of the relevant facts (violation of Article 11); the lack of an effective remedy in this respect, on account of the absence of any legal requirement on the authorities and the courts to give a final decision before the planned date of the march or the picketing (violation of Article 13 in conjunction with Article 11); discrimination against the applicant and other participants in the proposed events on the grounds of their sexual orientation, since the authorities failed to justify the bans in a way compatible with Convention requirements (violation of Article 14 in conjunction with Article 11).

In Alekseyev the Court also referred to the fact, inter alia, that the gay pride parade organised by the applicant was to call for promotion of respect for human rights and for tolerance towards sexual minorities and would not have involved any demonstration of obscenity; its participants had not intended to exhibit nudity, engage in sexually provocative behaviour or criticise public morals or religious views.

The case of Bayev and Others concerns violations of the right to freedom of expression and discrimination on account of fines imposed by domestic courts on the applicants in Ryazan, Arkhangelsk and St Petersburg in 2009-2012 for displaying banners considered to promote homosexuality among minors contrary to the regional laws prohibiting such “propaganda”. Laws of this sort were adopted in several regions since 2006, and followed by a similar nationwide law of 2013 (violations of Article 10 and of Article 14 in conjunction with Article 10). The Court underlined that the vagueness of the terminology used in these laws makes the scope of their application potentially unlimited and open to abuse, and that by adopting such laws the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society (§ 83).


Status of execution

During its last examination of Alekseyev at its 1273rd meeting (December 2016) (DH), the Committee noted with interest the additional measures presented by the authorities in their action plan, notably the actions of the Supreme Court intended to harmonise judicial practice in line with the requirements of the Constitution, the European Court’s judgments and the Committee of Ministers’ decisions, the creation within the judiciary of a database of relevant international materials and continued  awareness-rising activities for local authorities and judges, as well as the fact that courts appear to be deciding on the lawfulness of refusals to allow public events before the date planned for the events in question. At the same time, the Committee expressed serious concern at the very low number of public events similar to those considered in the case of Alekseyev. It urged the authorities to ensure that the law on “propaganda of non-traditional sexual relations among minors” does not pose any undue obstacle to the effective exercise of Convention rights, and noted the importance of the awareness-raising activities organised by the authorities. Finally, it invited the authorities, in accordance with the already established practice, to provide statistics on relevant developments between July 2016 and April 2017.

On 22 October 2018 the authorities provided a new action plan (DH-DD(2018)1047) covering both Alekseyev and Bayev and Others.

Individual measures

Payment of just satisfaction

As regards Alekseyev, just satisfaction was paid in full in June 2011 (see DH-DD(2011)842). As regards Bayev and Others, just satisfaction was paid in full to Mr Bayev and Mr Kiselev, but not to Mr Alekseyev because the bank returned the payment documents to the authorities. The authorities indicated that upon receipt of the appropriate bank account details from the applicant the just satisfaction will be paid.

Other individual measures

As for the four administrative fines imposed on the applicants for “propaganda of homosexuality among minors” considered in the case of Bayev and Others, only one was enforced, Mr Alekseyev paying a fine of RUB 2,000. The European Court awarded Mr Alekseyev pecuniary damage compensating him for this payment (§ 97). The other three fines have not been enforced and cannot be enforced in future due to the relevant statutes of limitation.

Mr Alekseyev complained in a communication of July 2018 (DH-DD(2018)737) that the domestic courts have not granted his and the other applicants’ requests to reopen the administrative proceedings imposing the above fines.

General measures

A.    The new action plan

The new action plan submitted by the authorities provides a summary of measures adopted prior to the Committee’s last examination of the case of Alekseyev in December 2016, including a number of general and continuing ones, as well as a number of new measures. The situation can be summarised as follows.

As regards the case of Alekseyev

The action plan recalled the wide dissemination of the translation of the Alekseyev judgment, as well as information about it. Thus, the information about this judgment is available on the courts’ internal database “Departmental Contour” (folder “International Law”). The translation of the judgment is available to the public on the private legal databases “ConsultantPlus”[1] and “Garant”.[2] Additionally, the decisions of the Committee of Ministers adopted in this case have also been translated and disseminated, notably among the highest executive authorities of all relevant Russian regions.


The action plan also recalled that practice directions and awareness-raising activities are an important part of these measures.

As to the judiciary, the Supreme Court adopted a number of measures in order to harmonise the courts’ practice and to streamline it so that it complies with Convention requirements. The judges are regularly informed, in Russian, about developments in respect of human rights, including LGBTI rights, occurring in the intergovernmental organisations, including in the Council of Europe and the European Court.

On 27 June 2013 the Plenum of the Supreme Court issued a Ruling indicating to all Russian courts the necessity to comply with the Convention principles of lawfulness, proportionality, as well as with other Convention principles. In addition and more recently, on 26 June 2018, the Plenum of the Supreme Court issued a special guiding Ruling aimed at ensuring uniform and improved judicial practice in cases concerning public events, including in the area at issue here. The Ruling contains specific explanations for the courts, made in light of the European Court’s case-law, in respect of appeals against decisions, acts (or omissions) of public authorities, application of provisional measures, establishing the liability of  perpetrators etc. It also directs the courts towards a proportionality approach, thorough examination of all available materials and well-reasoned decisions.

As regards the training of judges and court staff, the Russian State University of Justice, specialising in the matter, has made international standards concerning protection of LGBTI persons part of its curriculum. Training and other awareness-raising activities for judges are also being organised at the regional and local levels: the training programmes for judges include the European Court’s case-law, including the right to hold public events promoting LGBTI rights.

Awareness-raising activities are also being organised among the staff of municipalities and police. On the municipal level, a Model Code for municipal officials has been adopted. As to the police, in 2015 the Rules on training of personnel of police were adopted (approved by an Order of the Interior Minister of 31/03/2015 No. 385), which includes the studying of legal positions of Council of Europe bodies, including of the European Court.

Awareness-raising activities among prosecutors are also being organised, including through dissemination of the relevant material on the prosecutors’ specially-created electronic database.

Awareness-raising activities on the subject at issue in the form of workshops and training sessions have also been organised by regional authorities, notably in the cities of Moscow and Saint Petersburg, the regions of Arkhangelsk, Murmansk, Tyumen and Kostroma, in some of which the violations found in the present judgments occurred.

Apart from awareness-raising activities, the Constitutional Court in its decisions of 23 September 2014 No. 24-P, and of 27 October 2015 No. 2534-O-P clarified that prohibition of propaganda of non-traditional sexual relations among minors should not impede impartial public discussion of issues related to sexual minorities, including via public events. It added that the above prohibition cannot constitute official censure of non-traditional sexual relationships, in particular homosexuality, far less their prohibition (see Bayev and Others, § 25).

As to the application of the case law of the Constitutional Court and of the European Court, the authorities underlined that it is binding on all public authorities, including courts. For example, in 2018 the Altay Regional Court held that the decision of the municipal authorities of Biysk not to allow a public event in support of LGBTI rights was unlawful. Also, on 8 February 2018 the Koryazhma Town Court of the Arkhangelsk Region upheld a municipal authority’s refusal to permit the holding of a similar event (made with a suggestion to hold it in another place) because of the specific circumstances of that case, including that the events were planned to be held in an immediate vicinity of “children institutions”.

As to the effectiveness of remedies, the authorities recalled that the 2015 Code of Administrative Procedure provides better safeguards than the previous legislation that was in force when the relevant violation (in the case of Alekseyev) occurred. These safeguards include, among other things, an obligation on the courts, which they now fulfil, to consider complaints related to the organisation of public events before the dates foreseen for such events.


As regards the case of Bayev and Others

The authorities first recalled that the European Court in its judgment held that the Russian laws prohibiting “propaganda of non-traditional sexual relations among minors” are inconsistent with the Convention. Further, the authorities recalled the aforementioned 2014 judgment of the Constitutional Court that these laws are consistent with the Russian Constitution. The authorities then observed that this raises serious questions in respect of the execution of the judgment in Bayev and Others. Internal consultations among the authorities are currently being held to find a solution.

Measures promoting tolerance towards LGBTI persons

Finally, the authorities reiterated that Russian legislation does not discriminate against LGBTI persons and that, in general, tolerance towards LGBTI persons is being promoted. They mentioned several recent examples of events held since the Committee’s last examination in December 2016, including the following:

-       a regular LGBTI film festival “Side by Side” - the 2017 event was held in November 2017 and the 2018 event is planned for November 2018;

-       a Project for Legal Assistance to Transgender Persons is being currently implemented, in the framework of which a report on Transgender Persons in Russian Society was presented on 31 May 2018;

-       in September 2018, a regular LGBTI festival was held in St Petersburg (10th “Kvirfest” festival);

-       a conference on gender dysphoria was held in October 2018 in Moscow;

-       in 2017-2018 events to celebrate the international day of equality of families were held in major Russian cities;

-       in October 2018, a seminar was held in Krasnodar (capital of a southern region) on, among other subjects, discrimination and human rights, organised by the regional and federal LGBTI NGOs;

-       in January 2017, the Krasnodar regional Ombudsman held a meeting with LGBTI NGOs. An action plan for resolving the problems related to LGBTI rights in the Krasnodar region has been worked out as a result of that meeting;

-       in May 2017 an LGBTI flashmob was held in Perm (capital of a northern region), with more than 30 participants;

-       in May 2017 an LGBTI NGO co-organised a meeting with parents on child-raising problems;

-       in June 2017 an LGBTI NGO co-organised two seminars on LGBTI parenthood in Omsk (capital of a region in south-western Siberia);

-       in February 2018 an LGBTI community centre was opened in Tomsk (capital of a region in western Siberia), hosting regular informative events for LGBTI persons;

-       in June 2018 the Russian LGBT Network organised an event on leadership for young female activists;

-       an LGBT Sports Federation (an all-Russian NGO) is active throughout Russia. Russian sports officials participated and spoke against discrimination of LGBTI persons in sports in at least one of its events, namely – “Football Against Homophobia”, organised in February 2018.

B.    NGO communication concerning statistics

The authorities’ action plan does not contain any statistics about requests for public events similar to those at issue in the present judgments. However, as follows from a submission made in July 2018 by LGBT Human Rights Project GayRussia.Ru and Moscow Pride Organizing Committee (DH-DD(2018)775), all their recent requests for public events in support of LGBTI rights have been rejected by the local authorities, usually with a reference to the law on “propaganda of non-traditional sexual relations” among minors. Between February 2016 and July 2018 all such requests were rejected in approximately 250 cities throughout Russia, and the courts upheld the refusals, despite the fact that the above NGO has drawn the courts’ attention to the present judgments.

C.    NGO communication in relation to the latest action plan

In relation to the authorities’ action plan of 22 October 2018, on 31 October 2018 two NGOs (Coming Out, focusing on St Petersburg, and ILGA-Europe) submitted a joint communication (DH-DD(2018)1096). It provides several examples concerning local authorities’ refusals, affirmed by courts, to allow the holding of LGBTI rights-related public events in 2018, including on the basis of the “propaganda” laws.


For example, on 4 August 2018 the organisers of the St Petersburg Pride were prevented from holding a peaceful public event in the city centre; some 30 persons who finally participated in it were detained and the courts imposed administrative fines on the participants totalling more than RUB 450,000. The above NGOs also contended that the statistics provided by other NGOs in DH-DD(2018)775 should be regarded as valid given that the authorities did not challenge them.

The NGOs also noted that in 2017, although permission was denied to Coming Out to hold an International Day against Homophobia and Transphobia (IDAHOT) rally in St Petersburg, the rally did take place. They added that “unexpectedly… the police protected them, rather than detaining them”. Also, pickets by single individuals on LGBTI issues are occasionally conducted without consequences. They underlined that they are not aware of any other positive cases.

As to the “propaganda” laws, the NGOs underlined that they continue to be used to suppress access to information also. For example, in 2017 in St Petersburg the police searched an LGBTI youth community centre. Its subsequent closure created a “chilling effect”. Also, three LGBTI-related Internet portals (Parni Plus; Gay.ru; Lesbi.ru) were blocked. They were subsequently unblocked only after they restricted minors’ access to these sites that contained allegedly neutral information.

The NGOs recommended that the authorities, with the assistance of the Council of Europe, adopt additional measures, in particular: revise the Assemblies Act in accordance with the Convention requirements;[3] prepare a code of conduct for authorities responsible for handling notifications of public events; train three specific categories of public servants, namely local civil servants responsible for handling public events notifications, judges and other court staff, and the police; carry out a wide-scale and long-term programme of awareness raising among the general public focusing on freedom of expression and assembly of LGBTI persons; repeal the “propaganda” laws.

Analysis by the Secretariat

Individual measures

As regards Alekseyev, it is recalled that the sums of just satisfaction were paid to the applicant within the deadline.

As regards Bayev and Others, the Committee may note that a reopening of the administrative proceedings in which fines were unjustifiably imposed on the applicants does not appear to be necessary since none of the applicants suffer any negative pecuniary consequences of the violations. The fines were either not enforced or reimbursed by the European Court as part of the just satisfaction. It also appears that the records of the offences, which are to be kept for one year in accordance with the applicable domestic law (Article 4.6 of the Code of Administrative Offences), have long since been cleared.

As to the payment of just satisfaction to the third applicant (Mr Alekseyev), the applicant appears not to have been able to receive the amounts sent in roubles, as indicated in the Court’s judgment, to his Swiss bank account. The Secretariat is in consultation with the parties to try to find a solution to this technical problem.

It is to be noted that the other possible individual measures to ensure that the applicants can exercise the rights to freedom of assembly and expression at issue in these cases without undue interference are closely linked to the general measures.

General measures

The Committee may note that most of the information in the new action plan was already provided previously by the authorities and assessed by the Committee which has in particular:

-       expressed serious concern about the fact that local authorities continue to refuse to allow the holding of public events similar to those in Alekseyev, mainly on the basis of the legislation prohibiting “propaganda of non-traditional sexual relations among minors”, and that the courts uphold these refusals;


-       noted, as the case may be, with interest or satisfaction[4], a number of positive developments, including that some LGBTI rights-related public events have been allowed and have taken place, and strongly encouraged the authorities to enhance such practices, notably through reinforcing awareness-raising measures.

The more recent developments presented, even if providing indications of a continuation of a positive trend, appear to confirm the continuing pertinence of these conclusions.

The fact that a number of additional awareness-raising activities have been conducted since the Committee’s last assessment thus appears of interest, even if in view of the slow pace of developments, it also appears necessary to reiterate the call on the authorities to further reinforce their support for such activities.

Also, the 2018 guiding Ruling of the Plenum of the Supreme Court related to the organisation and conduct of public events appears to contain interesting developments, in particular as it stresses anew the necessity for courts to adopt well-reasoned and proportionate decisions when deciding disputes regarding the conduct of such events and specifies that a failure by the local authorities to reply in time makes the public event lawful automatically.

However, this Ruling concerns public events in general,[5] and does not focus on the freedom of expression and assembly of LGBTI rights defenders or issues of discrimination. As a consequence, the Committee may wish to receive more detailed information about the Ruling’s implications for these persons or, alternatively, about the possibility of a separate Ruling with respect to the special problems encountered by these groups.

In any event, the development of the situation must continue to be kept under close scrutiny, in particular in the light of the continuing regular references to the laws concerning “propaganda of non-traditional sexual relations among minors” to refuse events of the type at issue here – see also below.

It is noted in this context with regret that the authorities have not been able to provide any statistics, as they were invited to do by the Committee in December 2016. The only statistics available are those submitted in an NGO communication (DH-DD(2018)775), and these tend to support the idea that progress so far has been very slow.

Laws concerning “propaganda of non-traditional sexual relations” among minors

Developments so far suggest that the hopes that the 2014 Constitutional Court position would circumscribe the very broad discretionary powers given through the propaganda laws have not been realised. The general possibility offered by the Constitutional Court and the Supreme Court to contribute to a more tolerant and more circumscribed application of the propaganda laws merits further attention.

However, as matters presently stand, the revocation of the above legislation, as recommended also by the Venice Commission,[6] the UN Human Rights Committee and the UN Committee on the Rights of the Child,[7] remains the main option to rapidly achieve a Convention-compliant situation and remove the present bias against LGBTI persons created by these laws.

If the authorities decide not to repeal these laws, specific amendments taking into account the indications of the Court in Bayev and Others would be a matter of urgency. In the meantime, the development of judicial practice, specifically addressing the continuing problems, is also a matter of urgency - even vague laws can become Convention-compliant if adequately circumscribed by practice.


Whatever avenue is chosen, it is important to rapidly narrow the range of punishable behaviours, notably by specifying, in keeping with the indications given by the European Court, that such could only reasonably cover advocating reckless or sexual behaviour among minors through intrusive transmission of inaccurate, sexually explicit or aggressive messages and ensuring that prohibitions are non-discriminatory (irrespective of one’s sexual orientation) (see notably Bayev and Others, §§ 72, 82 and 90).  

The authorities should be generally encouraged to continue their awareness-raising, training activities and other efforts, including the ongoing consultations among the competent state authorities, so as to advance towards a Convention-compliant solution.

As regards the problems advanced with respect to the possibilities of a change of the above laws on the ground that they have been found constitutional by the Constitutional Court, it appears that the mere fact that a law is constitutional (as is the case with almost all national legislation) should not in any way prevent it from being interpreted or changed to ensure compliance with the requirements of the Convention as interpreted by the European Court.

Financing assured: YES



[3] The Assemblies Act (or Public Events Act) is being considered primarily in the group of cases Lashmankin and Others, No. 57818/09. See notably the Deputies’ decision adopted at 1318th meeting (HR), June 2018, § 4.

[4] For example, the Committee noted with satisfaction that the problem with the remedy in respect of the timing of judicial review has apparently been resolved. This particular issue is currently being considered primarily in the group of cases Lashmankin and Others, No. 57818/09. See notably the Deputies’ decision adopted at 1318th meeting (HR), June 2018, § 5.

[5] Considered in the group of cases Lashmankin and Others, No. 57818/09. See notably the Deputies’ decision adopted at 1318th meeting (HR), June 2018.

[6] Venice Commission Opinion on the issue of the prohibition of so-called “propaganda of homosexuality” in the light of the recent legislation in some member States of the Council of Europe adopted on 14-15 June 2013, Document CDL-AD(2013)022, § 83.

[7] See Concluding Observations on the seventh periodic report of the Russian Federation, CCPR/C/RUS/CO/7 (2015), § 10; Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of the Russian Federation, CRC/C/RUS/CO/4-5 (2014), §§ 24-25 (expressing concern that such laws “encourage the stigmatization of and discrimination against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons, including children, and children from LGBTI families” and urging repeal of such laws).