Information Note on the Court’s case-law 246
December 2020
Berkman v. Russia - 46712/15
Judgment 1.12.2020 [Section III]
Article 11
Article 11-1
Freedom of peaceful assembly
Police failure to ensure LGBTI event disrupted by counter-demonstrators proceeded peacefully, in breach of State’s positive obligations: violation
Article 14
Discrimination
Police failure to ensure LGBTI event disrupted by counter-demonstrators proceeded peacefully, in breach of State’s positive obligations: violation
Facts – The applicant had attempted to take part in a public meeting to mark Coming Out Day (an annual LGBTI awareness day), which was disrupted by counter-demonstrators. She was arrested, removed from the site of the event and detained at a police station for four hours. Administrative proceedings against her were terminated for lack of evidence of her guilt. Afterwards, she appealed unsuccessfully, complaining inter alia that the police had failed to ensure that the meeting proceeded peacefully.
Law – Article 11, taken alone and in conjunction with Article 14:
The authorities had not banned the public meeting in support of the LGBTI community, where the applicant had intended to participate, and being aware of the risks associated with the event they had dispatched a considerable number of police officers to the scene of the demonstration.
Those police officers had arrived several hours before the envisaged event. At some point, counter-demonstrators equipped with whips had appeared at the venue. They had been ostensibly hostile to the planned event. Nothing suggests that any reaction from the police had followed. The officers, who outnumbered counter-demonstrators several times, had neither warned the latter against obstructing the meeting nor attempted to secure a safe perimeter for the participants in Coming Out Day. As a result of police inaction, the applicant and other participants had been unable to find a place for the event at the square which had been occupied by counter demonstrators.
The police had not interfered immediately when the counter-demonstrators had started bullying the participants in Coming Out Day by verbally attacking and pushing them. The officers had not taken any steps to de-escalate the tension between the two groups. They had stepped in belatedly, only when a real risk of inflicting bodily injuries had appeared.
The passive conduct of the police officers at the initial stage, the apparent lack of any preliminary measures (such as official public statements promoting tolerance, monitoring of the activity of homophobic groups, or arrangement a channel of communication with the organisers of the event) and subsequent arrests on account of the alleged administrative offences demonstrated that the police officers had been concerned only with the protection of public order during the event and that they had not considered it necessary to facilitate the meeting. The domestic courts which had examined the applicant’s case had shared the same narrow view on the State’s positive obligations under the Convention.
The Court was unsatisfied with such approach. The participants of a demonstration must be able to hold it without having to fear that they will be subjected to physical violence by their opponents. Genuine, effective freedom of peaceful assembly could not, therefore, be reduced to a mere duty on the part of the State not to interfere.
The State’s compliance with their positive obligations had to be assessed in the light of the subject matter of the assembly. Those obligations had been of paramount importance in the present case, because the applicant as well as other participants in Coming Out Day had belonged to a minority. They held views that were unpopular in Russia and therefore were vulnerable to victimisation, particularly given the history of public hostility towards the LGBTI people in Russia. When assessed against that background, the discriminatory overtones of the incident and the level of vulnerability of the applicant, who had publicly positioned herself with the target group of the sexual prejudice, had been particularly apparent. Indeed, during the conflict, the homophobic connotation of the counter-demonstrators’ speech and their conduct had been evident to the authorities. However, it had not been duly addressed.
Accordingly, the authorities had failed to duly facilitate the conduct of the planned event by restraining homophobic verbal attacks and physical pressure by counter-demonstrators. As a result of the passive attitude of the police authorities, the participants of the event fighting against discrimination on the grounds of sexual orientation had themselves become the victims of homophobic attacks which the authorities had not prevented or adequately managed.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 5 § 1 on account of the applicant’s unlawful arrest; a violation of Article 11 in respect of the State’s negative obligations on account of the applicant’s prevention from participating in the event through her arrest; and no violation of Article 14 taken in conjunction with negative obligations under Article 11.
Article 41: EUR 10,000 in respect of non-pecuniary damage.
(See also Identoba and Others v. Georgia, 73235/12, 12 May 2015, Information Note 185; Beizaras and Levickas v. Lithuania, 41288/15, 14 January 2020, Information Note 236; Guide on Article 11 of the European Convention on Human Rights: Freedom of assembly and association and the Factsheet on Sexual orientation issues)
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This summary by the Registry does not bind the Court.
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