Russia: European Court Rules Gay Pride Ban Unlawful
Russia Should Allow March and Guarantee Freedom of Assembly
"The European court saw Moscow's decision to ban gay pride events as homophobia dressed up in dubious claims about public order," said Boris Dittrich, acting director of the lesbian, gay, bisexual, and transgender program at Human Rights Watch. "The court has told the Russian authorities they can no longer ban peaceful gatherings based on the participants' sexual orientation. So now it's time for the Moscow authorities to allow gay pride marches - and to protect participants from violence."
In firmly rejecting the Russian government's argument that there was no general consensus on issues relating to the treatment of sexual minorities, the court reiterated that there is "no ambiguity" about "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."
Alexeyev, a Russian LGBT activist, had requested permission, as required by law, from the-then Mayor of Moscow Yuri Luzhkov to hold a peaceful demonstration to draw attention to discrimination against gays and lesbians 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 gays and lesbians. He requested permission to demonstrate three years in a row, in 2006, 2007, and 2008. Each time the Moscow authorities denied permission on the grounds of public order, prevention of riots, protection of health and morals, and rights and freedoms of others.
Luzhkov repeatedly stated that he would not allow gay activists to hold public events in the streets of Moscow "as long as he was the city mayor." He claimed that authorizing gay parades would breach the rights of those people whose religious and moral beliefs included a negative attitude towards homosexuality. In his opinion, any form of celebration of homosexual behavior should take place in private or in designated meeting places with restricted access. Russian courts had upheld the mayor's decisions.
Unable to find justice in Russia, Alexeyev applied to the European Court of Human Rights, claiming that his rights to freedom of assembly, to a remedy, and not to be discriminated against on grounds of sexual orientation (guaranteed by articles 11, 13 and 14 of the European Convention on Human Rights respectively) had been violated. In its judgment delivered on October 21, the European court emphasized that by refusing LGBT rights activists the right to peaceful assembly and by referring to "blatantly unlawful calls" of violence against gay men and lesbians 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."
"The court has made clear that basic freedoms like the right to peaceful assembly apply to all people in Russia, including lesbians, gays, bisexuals, and transgender people," said Dittrich. "Although LGBT activists are especially vulnerable to harassment in Russia, other civic and political activists also suffer and this ruling is of great importance to their freedom of assembly as well."
The court reiterated that it would be incompatible with the underlying values of the European Convention if the exercise of rights like the freedom of assembly 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."
Rather than banning demonstrations on the basis of their potential to threaten public order and cause riots, the authorities should be fulfilling their duty to ensure that police protect peaceful demonstrators when they are exercising their freedom of assembly, Human Rights Watch said.
The court reminded the Russian government that demonstrators "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 ...[s]tates to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully."
The court also ruled against Russia in finding that it had explicitly acted in a discriminatory manner, based on the sexual orientation of the March organizers. Finally, the court also held that Alekseyev could not effectively challenge the refusal to allow the march to take place, in a timely manner. The government has an obligation to ensure that anyone whose rights, such as the right to assembly, have been unlawfully interfered with, has access to a prompt and effective means of remedying the situation. However, in Russia there is no legally binding timeframe that requires the authorities to give a final decision on whether an event can take place, before the actual date planned for the event.
The Russian government should stop interfering with the right to free peaceful assembly, and take concrete steps to foster a normal environment for civil society activists, including those protecting and promoting LGBT rights, Human Rights Watch said.
On May 27, 2007 Human Rights Watch was present in Moscow, when Alekseyev and a small group of LGBT activists and their supporters tried to stage a peaceful public demonstration to claim their rights. Anti-gay nationalist groups assaulted them, beating some severely, pelting others with rocks and eggs. Police sided with the violent rather than the victims, failing to protect the peaceful demonstrators. Human Rights Watch documented this in "‘We have the Upper Hand': Freedom of assembly in Russia and the human rights of lesbian, gay, bisexual and transgender people," a 20 page report, co-authored by ILGA Europe.
Russian authorities routinely refuse to officially sanction protest rallies and then sue the participants for supposedly unlawful activity. Public rallies in support of freedom of assembly held in Moscow and other large cities on the 31st day of every month that has 31 days - symbolizing article 31 of the Russian constitution, which guarantees the right to peaceful assembly - were dispersed by police, sometimes violently, and their participants were arbitrarily detained.
The year 2010 started with the detention of Russia's leading human rights defender, Ludmila Alexeeva, then 82, at such a rally in Moscow on New Year's Eve. Another prominent Russian human rights activist, Lev Ponomarev, has been sentenced to administrative arrest twice in 2010 alone, in connection with his participation in rallies.