THIRD SECTION
DECISION
Application no. 21299/13
Kirill Sergeyevich NEPOMNYASHCHIY
against Russia
The European Court of Human Rights (Third Section), sitting on 8 April 2021as a Committee composed of:
Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having regard to the above application lodged on 28 February 2013,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant’s details are set out in the appended table.
The applicant was represented by Mr E. Daci, a lawyer practising in Geneva.
On 10 October 2011 the organisers of a LBGT rally, including the applicant, informed the Moscow City’s Mayor of their intent to hold the rally on 21 October 2011.
By letter of 17 October 2011 the mayor’s office refused permission for holding the rally and the organisers had to cancel it. The applicant’s subsequent complaints to domestic judicial authorities were to no avail.
The applicant’s complaints under Articles 11, 13 and 14 of the Convention concerning the discriminatory ban on holding a LGBT public assembly were communicated to the Russian Government (“the Government”).
THE LAW
The applicant complained under Articles 11 and 14 of the Convention about the ban on the LGBT rally. He further argued under Article 13 of the Convention that he had not had an effective domestic remedy in that respect. These provisions of the Convention, in so far as relevant, read as follows:
Article 11
“1. Everyone has the right to freedom of peaceful assembly ...
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court observes that the applicant’s complaint concerned the refusal of the city mayor’s office to approve the venue chosen for the rally. The applicant was informed of that refusal on 17 October 2011. He then challenged it before the domestic courts and subsequently lodged the application with the Court on 28 February 2013. The first task for the Court is, accordingly, to determine whether the present application satisfies the admissibility requirements set out in Article 35 § 1 of the Convention.
In this connection, the Court reiterates that the provisions of the said Article concerning the exhaustion of domestic remedies and the six months’ rule are closely interrelated. Thus, where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures complained of. If an applicant first avails himself of a domestic remedy and only subsequently becomes or should have become aware, of the circumstances which render that remedy ineffective, it might be appropriate to calculate the six-month period from the date when the applicant became or ought to have become aware of those circumstances. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six months’ rule. Accordingly, if an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that remedy cannot be taken into account for the calculation of the six-month period (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016).
As regards the authorities’ decisions to ban holding public assemblies in Russia, the Court has already found in Alekseyev v. Russia (nos. 4916/07 and 2 others, §§ 99 and 100, 21 October 2010) that the judicial remedy of a post-hoc character the applicant had recourse to in the present case, was incapable of providing adequate redress in respect of the alleged violation of Article 11 of the Convention and found a violation of Article 13 of the Convention on this account.
The Court further considers that, at the time of the events in question, the applicant was well aware of the absence of effective domestic remedies for his complaints. Accordingly, in the Court’s view, its findings in Alekseyev should have enabled the applicant to reasonably anticipate the application of the exhaustion and six months’ requirements in his case.
The Court therefore concludes that the applicant’s complaint about the ban on the rally should have been lodged within six months of the date of the refusal of the authorities to approve the proposed venue (for similar approach, see most recently, Alekseyev and Others v. Russia (dec.) [Committee], no. 31782/15, 30 June 2020 and Komarova v. Russia (dec.) [Committee], no. 44570/11, 26 May 2020).
It follows that the application is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention and thus must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 29 April 2021.
{signature_p_2}
Viktoriya MaradudinaDarian Pavli
Acting Deputy RegistrarPresident
APPENDIX
Application raising complaints under Article 11 and
Article 14 of the Convention
(discriminatory ban on holding LGBT public assemblies)
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Proposed theme of the public event
Location
Date
Grounds for refusal
Refusal to grant permission
Date
21299/13
28/02/2013
Kirill Sergeyevich NEPOMNYASHCHIY
1981
Daci Enis
Geneva
LGBT Liberation Rally
Moscow
21/10/2011
Content-based restriction without reference to law banning promotion of homosexuality.
Notification procedure, 17/10/2011
Moscow Mayor’s Office.
Full & Egal Universal Law Academy