MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1483/H46-30

7 December 2023

1483rd meeting, 5-7 December 2023 (DH) Human rights   H46-30 Alekseyev group (Application No. 4916/07), Bayev and Others group (Application No. 67667/09), Berkman group (Application No. 46712/15) and Zhdanov and Others (Application No. 12200/08) v. Russian Federation Supervision of the execution of the European Court’s judgments Reference document CM/Del/Dec(2018)1331/H46-24

Application	Case	Judgment of	Final on	Indicator for the classification
ALEKSEYEV GROUP
4916/07	ALEKSEYEV	21/10/2010	11/04/2011	Complex problem
14988/09	ALEKSEYEV AND OTHERS	27/11/2018	06/05/2019
26624/15	ALEKSEYEV AND OTHERS	16/01/2020	16/01/2020
13518/10	SUTYAGIN AND GAVRIKOV	15/12/2022	15/12/2022
BAYEV AND OTHERS
67667/09+	BAYEV AND OTHERS	20/06/2017	13/11/2017	Complex problem
21226/14	ISAKOV	20/06/2017	13/11/2017
BERKMAN GROUP
46712/15	BERKMAN	12/01/2020	03/01/2021	Complex problem
72144/14	IVANOV	10/01/2023	10/01/2023
23506/15	TEPLITSKAYA AND BOGACH	20/09/2022	20/09/2022
ZHDANOV AND OTHERS
12200/08	ZHDANOV AND OTHERS	16/07/2019	16/10/2019	Complex problem

Case description

These cases mainly concern discrimination on the grounds of sexual orientation in the exercise of the rights to freedom of expression, assembly and association, and not to be subject to ill-treatment.

The Alekseyev group concerns repeated bans imposed by the local authorities in several cities in 2008-2017on the holding of gay rights marches and pickets promoting respect for human rights and tolerance towards sexual minorities, and failure to assess adequately the risk to the safety of the participants and public order (violation of Article 11); the lack of an effective remedy in this respect (violation of Article 13 in conjunction with Article 11); and the discrimination against the applicant and other participants in the proposed events on the grounds of their sexual orientation (violation of Article 14 in conjunction with Article 11).

The Bayev and Others group concerns the application of the so-called anti-propaganda laws on account of fines imposed on the applicants for displaying banners considered to promote homosexuality among minors against the laws prohibiting such “propaganda” (violations of Article 10 and of Article 14 in conjunction with Article 10). Laws of this sort were adopted in several regions since 2006, and followed by a similar nationwide law of 2013.

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).

In the Berkman group, the cases of Berkman and Teplitskaya and Bogach, concern the police failure to protect the applicants from verbal attacks and physical pressure by counter-demonstrators during a LGBTI-rights demonstration (violations of Article 11 and of Article 14 in conjunction with Article 11). The case of Teplitskaya and Bogach also concerns violation of the applicants’ right to liberty on account of their unlawful arrests at the venue of the gathering and transfer to the police station (violation of Article 5 § 1). The case of Ivanov concerns the violation of the applicant's right not to be subjected to discriminative ill-treatment on account of the domestic court’s failure, while convicting a perpetrator for attacking the applicant, to take into account the discriminatory motive behind the attack, despite its evident homophobic overtones (violation of Article 3 in conjunction with Article 14).

The case of Zhdanov and Others concerns the authorities’ refusal to register the LGBT associations (violations of Article 11 and of Article 14 in conjunction with Article 11). It also concerns deprivation of an opportunity to appeal against this refusal, in an apparent violation of the domestic law (violation of Article 6).

Status of execution

The Alekseyev and Bayev and Others groups were last examined in December 2018 on the basis of the submissions from the authorities and NGOs. At that meeting, the Committee noted with interest the effort of some authorities. However, in the absence of any progress in practice, the Committee expressed serious concerns about the continued refusals by local authorities to allow LGBTI-related public events, notably on the basis of the laws prohibiting “propaganda of non-traditional sexual relations among minors”, inviting the authorities to abrogate or amend it in line with the Convention requirements.

The other cases are examined by the Committee for the first time.

No information has been provided by the authorities since the meeting of December 2018 (apart from information of payment of just satisfaction in the case of Berkman, provided in July 2021).

Individual measures

In the Alekseyev group, the just satisfaction was paid in full in 2011 in the case of Alekseyev (4916/07). In the three other cases, no just satisfaction was not awarded by the Court. In the Bayev group, it was partially paid in 2018 in the case of Bayev and not paid in the case of Isakov. In the Berkman group, it was fully paid in 2021 in the Berkman case and not paid in two other cases. No payment was made in the case of Zhdanov and Others.

General measures

The alarming situation with the LGBTI rights in the Russian Federation has been widely reported, including by the UN Human Rights Committee[1] and the UN Special Rapporteur on Human Rights in Russia. In particular, the Rapporteur underlined that even though LGBTIQ+ persons in the Russian Federation have long faced harassment, threats and discrimination, open hostility has increased since the adoption of the “gay propaganda” law in 2013. Even stricter legislation has been enacted since February 2022, in keeping with President Putin’s announcement that an anti-LGBTIQ+ stance would be the cornerstone of his political agenda.[2]

The legislation extended the “gay propaganda” ban beyond minors and prohibited any act perceived to promote “non-traditional sexual relations or preferences”. It was condemned by the United Nations High Commissioner for Human Rights, who called upon Russian legislators to repeal, not expand, anti-LGBTIQ+ legislation.[3]

A number of cases have been documented, for example in Chechnya, where police and security forces have been accused of initiating blackmail, abduction and torture against LGBTIQ+ individuals.[4]

Rule 9 submission

On 13 September 2023 Crew Against Torture made a Rule 9.2 submission (DH-DD(2023)1119). It highlighted that several international bodies, including the OSCE Rapporteur, have consistently expressed deep concern about the persecution of the LGBTI people in Russia. The UN CEDAW held Russia accountable for acts of discrimination based on sexual orientation.

The situation in Russia continues to deteriorate. At the end of 2022, new laws came into force that explicitly prohibit the dissemination of any information about "non-traditional" sexual relationships. All types of information related to LGBTI issues, gender reassignment and pedophilia are banned. The punishment for non-compliance is heavy fines and, in the cases of Internet resources, blocking of websites. As for the authorities' understanding of what exactly propaganda of "non-traditional" sexual relations, gender reassignment and pedophilia mean, Roskomnadzor (a telecom regulator) issued clarifications (Order No. 25 of 27 February 2023). However, their wording is still so broad that even neutral references to these issues may fall under its purview.

The situation in the North Caucasus, particularly in the Chechen Republic, is even more alarming, as LGBTI people there are subjected to enforced disappearances, incommunicado detention, torture and extra-judicial killings.

The NGOs involved in the promotion of LGBTI rights have been labelled 'foreign agents'. One of the leading NGOs in this field, Sfera, has been dissolved by a court order.

Given the current political situation in the Russian Federation and the total restriction of the right to freedom of any kind of assembly, it has become completely impossible to hold marches and pickets specifically in defence of LGBTI people.

Analysis by the Secretariat

At the outset it is recalled that the Russian Federation ceased to be a High Contracting Party to the European Convention on Human Rights on 16 September 2022, and that the Court remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022. The Committee of Ministers will continue to supervise the execution of the judgments and friendly settlements concerned and the Russian Federation is required to implement them.

The Court continues to adopt judgments in cases concerning wide discrimination faced by the LGBTI persons, including in a case concerning abduction, detention and torture of applicant by State agents in Chechnya on account of his sexual orientation (Lapunov, judgment of 12 September 2023, not yet final), and in a case concerning homophobic statements made by state officials (Nepomnyashchiy, final on 30 August 2023).

Individual measures

In cases where this has not been done, just satisfaction should be paid. In the case of Ivanov, in accordance with the Committee's established practice,[5] the authorities must examine ex officio the possibility of reopening the criminal case to address the shortcoming identified by the Court – in particular, to take into account the discriminatory motive behind the attack, in view of evidence of its homophobic overtones.

Other possible individual measures to ensure that the applicants can exercise their rights are closely linked to the general measures.

General measures

The ongoing decline of LGBTI rights in Russia, as extensively reported (see above), is deeply deplorable.

One of the aims of the execution process is to prevent similar violations. Instead, the political will of the authorities is aimed at further encouraging such violations. This is clear from many reliable sources, including those mentioned above. This political will was clearly reaffirmed by President Putin when he announced that an anti-LGBTI stance would be the cornerstone of his political agenda.[6] Therefore, the primary objective of the general measures should be to change the political stance of the authorities that is contrary to the Convention and their international law obligations as regards non-discrimination of persons belonging to the LGBTI community.

A message of tolerance towards sexual minorities from the highest authorities is therefore crucial in this respect. It should be accompanied by a series of measures to raise awareness at the highest level and among the general public about the discrimination and prejudice experienced by the LGBTI persons, in order to promote their acceptance and inclusion.[7] The relevant State bodies should issue instructions to their staff and the Supreme Court should issue guidelines to other courts, stressing the need to respect the human rights of LGBTI persons. With regard to the Berkman group, ensuring adequate policing of the LGBTI events is also necessary.[8]

Changes to the legal framework are also indispensable. In particular, “non-propaganda laws” should be repealed. In addition, when determining sanctions in the Criminal Code, a bias motive related to sexual orientation or gender identity is to be taken into account as an aggravating circumstance, as recommended by the Committee of Ministers.[9]

In parallel with these measures, the general situation of freedom of expression, assembly and association in the Russian Federation should be improved in order to enable the promotion of LGBTI rights, too. Indeed, these freedoms are severely restricted in the Russian Federation, not only in relation to LGBTI rights, but in general. The most serious problems in this regard are highlighted in the groups of cases Lashmankin and Vladimir Kharitonov, with an indication of the specific measures that should be taken by the authorities.

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