Berkman v. Russia (Application no. 46712/15)

A selection of key paragraphs can be found below the judgment.

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

35. The applicant was deprived of her liberty within the meaning of Article 5 § 1 of the Convention from about 1.55 p.m. until 6 p.m. on 12 October 2013. Police officers took her to the police station, in accordance with the procedure set out by Article 27.2 of the CAO. Once at the police station she was placed under administrative arrest under Article 27.3 of the CAO.

36. It appears that her arrest and detention had the purpose of bringing her before the relevant legal authority on suspicion of having committed an administrative offence and thus fell within the ambit of Article 5 § 1 (c) of the Convention (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 109-16 and 119-24, 10 April 2018 in respect of the administrative arrest and detention of the applicant within the context of administrative proceedings on account of the use of foul language in public; also contrast Kapustin v. Russia [Committee], no. 36801/09, 8 October 2019, §§ 29-31, where the applicant was not suspected of or charged with any offence and no administrative proceedings were instituted against him).

37. According to the applicant’s arrest record, she was taken to the police station for the purpose of drawing up an administrative-offence report. The Court observes that Article 27.2 of the CAO provides that a suspected offender may be brought to a police station for the purpose of drawing up an administrative-offence report only if such a report could not be drawn up at the place where the offence was detected. The Government, however, have not argued that in the applicant’s case drawing up such a report at the site of the protest was impossible. Moreover, the domestic authorities have never assessed in a meaningful manner the necessity of the applicant’s transfer to the police station (compare Butkevich v. Russia, no. 5865/07, §§ 61-65, 13 February 2018; Korneyeva v. Russia, no. 72051/17, § 34, 8 October 2019; and Tsukanov and Torchinskiy v. Russia [Committee], nos. 35000/13 and 35010/13, §§ 24-28, 17 April 2018).

38. In view of the foregoing, the Court finds a breach of the applicant’s right to liberty on account of a lack of reasons and legal grounds for her arrest. Accordingly, there has been a violation of Article 5 § 1 of the Convention. Having reached this conclusion, in the circumstances of this case the Court does not consider necessary to examine the merits of the applicant’s complaint under Article 5 § 1 of the Convention concerning her delayed release from the police station (see Zavyalova and Others v Russia [Committee], 74814/14 and 12 others, § 24, 8 September 2020).

II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 

52.  As submitted by the applicant and not disputed by the Government, the police did not interfere immediately when the counter-demonstrators started bullying the participants in Coming Out Day by verbally attacking and pushing them. The officers did not take any steps to de-escalate the tension between the two groups. They stepped in belatedly, only when a real risk of inflicting bodily injuries appeared. 

53.  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 demonstrate that the police officers were concerned only with the protection of public order during the event and that they did not consider it necessary to facilitate the meeting. The domestic courts which examined the applicant’s case shared the same narrow view on the State’s positive obligations under the Convention (see paragraphs 19 and 21 above). 

54.  The Court is unsatisfied with such approach. It reiterates that a demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents (see paragraph 47 above). Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere (see paragraph 46 above). 

55.  The Court notes that the State’s compliance with their positive obligations under the Convention in the present case should be assessed in the light of the subject matter of the assembly. Those obligations were of paramount importance in the present case, because the applicant as well as other participants in Coming Out Day belonged to a minority. They held views that were unpopular in Russia and therefore were vulnerable to victimisation (see Identoba, cited above, §§ 63-64, and Bączkowski and Others, cited above, § 64), particularly given the history of public hostility towards the LGBTI people in Russia (see paragraph 27 above, compare Identoba, cited above, § 68). It is when assessed against that background that the discriminatory overtones of the incident of 12 October 2013 and the level of vulnerability of the applicant, who publicly positioned herself with the target group of the sexual prejudice, are particularly apparent. 

56.  Indeed, during the conflict between the participants of the event and counter-demonstrators the latter were insulting in the language, spitefully using offensive homophobic slurs (see paragraph 27 above). The homophobic connotation of the counter-demonstrators’ speech and their conduct was evident to the authorities. However, it was not duly addressed. 

57.  Accordingly, the authorities 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 became themselves the victims of homophobic attacks which the authorities did not prevent or adequately manage. 

58.  The Court therefore considers that the domestic authorities failed to comply with their positive obligations under Article 11 of the Convention, taken alone and in conjunction with Article 14 (compare Identoba, cited above, §§ 92 and 100).