Communicated on 12 November 2018
THIRD SECTION
Application no. 76797/13
Sergey Iosifovich ILUPIN and others
against Russia
lodged on 15 October 2013
SUBJECT MATTER OF THE CASE
The application concerns the applicants’ participation in two “pickets” to protest against the adoption of the bill introducing administrative liability for propaganda of homosexuality among minors, and subsequent events.
The first “picket” took place on 19 December 2012 in the vicinity of the Russian State Duma in Moscow, despite the authorities’ refusal to approve the venue owing to sensitivity of the issue and risk of clashes. The applicants’ participation in the event was interrupted by police officers, who transferred them to a police station and then charged them with disorderly behaviour in a public place, an offence under Article 20.1 of the Federal Code of Administrative Offences. Subsequently the administrative proceedings against the first applicant were terminated for “the absence of an administrative offence”. The proceedings against the remainder of the applicants were terminated because the time-limit for their prosecution had expired.
The second “picket” took place on 22 December 2012 at the same venue. During the picketing the first, second and fourth applicants were attacked and injured by private individuals allegedly motivated by hatred against homosexuals. The criminal inquiry into the attack ended with the decision not to open a criminal case of 1 February 2013, which was then overruled by the higher investigating authority, but followed with another refusal in opening of the case on 15 July 2013, subsequently overruled for being ill‑founded on 7 March 2014.
QUESTIONS tO THE PARTIES
1. Having regard to the applicants’ allegations in respect of their arrest and transfer to the police station on 19 December 2012, as well as their subsequent detention until 20 December 2012, was their deprivation of liberty compatible with the requirements of Article 5 § 1 of the Convention? In particular:
(a) What were the legal grounds for the applicants’ arrest, transfer to the police station and subsequent detention?
(b) Did the applicants’ deprivation of liberty from the moment of their arrest until their release from detention pursue any aim enumerated in Article 5 § 1 of the Convention?
2. Having regard to the allegations by the second, third and fourth applicants in respect of the administrative proceedings, did they receive a fair hearing by an independent and impartial tribunal in accordance with Article 6 §§ 1 and 3 (d) of the Convention?
(a) Did the lack of a prosecuting party entail violations of the principles of the equality of arms, adversarial procedure and impartiality under Article 6 § 1 of the Convention (see Karelin v. Russia, no. 926/08, §§ 58-85, 20 September 2016)?
(b) Did the procedure in which the evidence was admitted and examined comply with the principles of adversarial proceedings and equality of arms, as required by Article 6 § 1 of the Convention (see Kasparov and Others v. Russia, no. 21613/07, § 56-67, 3 October 2013)?
(c) Were the applicants able to examine witnesses against them as required by Article 6 § 3 (d) of the Convention?
3. Do the circumstances of the case related to the events of 19 December 2012, including the restrictions on the public assembly, its termination, the applicants’ transfer to the police station, their ensuing detention and prosecution under the Code of Administrative Offences, taken separately or cumulatively, disclose an “interference” under Article 10 § 1 and/or Article 11 § 1 of the Convention?
If so, was this interference prescribed by law?
If so, did it pursue a legitimate aim?
If so, was it “necessary in a democratic society”? Were the reasons adduced by the national authorities to justify the interference “relevant and sufficient”? Did the national authorities apply standards which were in conformity with the principles embodied in Articles 10 and 11 of the Convention? Did the authorities base their decisions on an acceptable assessment of the relevant facts?
4. In the light of the reasoning contained in the decisions restricting the event of 19 December 2012, were the applicants subjected to discrimination on account of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 11?
5. Did the domestic authorities ensure that the public event of 22 January 2013 could take place peacefully by sufficiently constraining homophobic and violent counter-demonstrators? Did the authorities comply with their positive obligations under Article 11 taken alone or in conjunction with Article 14 of the Convention (see Identoba and Others v. Georgia, no. 73235/12, §§ 93-100, 12 May 2015)?
6. Did the domestic authorities provide adequate protection to the first, second and fourth applicants from the attacks of private individuals allegedly motivated by hatred against homosexuals during the public event of 22 January 2013, as required by Article 3 and/or Article 8 taken alone or in conjunction with Article 14 of the Convention (see Identoba and Others v. Georgia, cited above, §§ 72-74, and Sandra Janković v. Croatia, no. 38478/05, §§ 44-58, 5 March 2009)?
7. In respect of the first, second and fourth applicants, did the authorities conduct an effective official investigation into the attack of 22 January 2013 as required by Articles 3 taken alone or in conjunction with Article 14 of the Convention? In particular, did they investigate the existence of a discriminatory motive behind the acts of violence, namely whether the attacks against them had been motivated by hatred against homosexuals (see M.C. and A.C. v. Romania, no. 12060/12, §§ 105-26, 12 April 2016 and Identoba and Others, cited above, §§ 63-81).
8. The Government are requested to submit a copy of the entire investigation file related to the attack of 22 January 2013.
List of applicants
No.
Firstname LASTNAME
Birth year
Nationality
Place of residence
Representative
1.
Sergey Iosifovich ILUPIN
1979
Russian
Moscow
K.N. Koroteyev
T.S. Glushkova
2.
Sergey Nikolayevich GUBANOV
1985
Russian
Moscow
K.N. Koroteyev
T.S. Glushkova
3.
Pavel Vyacheslavovich SAMBUROV
1986
Russian
Moscow
K.N. Koroteyev
T.S. Glushkova
4.
Igor Gennadyevich YASHIN
1980
Russian
Moscow
K.N. Koroteyev
T.S. Glushkova
Full & Egal Universal Law Academy