The facts as submitted by the author
2.1 The author is a homosexual and a human rights activist. From 2006 to 2008, the author, together with other activists, tried to organize a number of peaceful assemblies (gay pride marches) in Moscow, which were all banned by the municipal authorities.
2.2 On 11 July 2008, the author, together with two other activists, submitted a request to the Prefect of the Central Administrative District of Moscow to hold a stationary meeting – a picket –, in front of the Iranian Embassy in Moscow. The purpose of the gathering was to express concern over the execution of homosexuals and minors in the Islamic Republic of Iran and to call for a ban on such executions. The author informed the authorities of the purpose, date, time and place of the event, which was scheduled to take place from 1 p.m. to 2 p.m. on 19 July 2008 in front of the Iranian Embassy, and which would involve no more than 30 participants.
2.3 On the same date, the Deputy Prefect of the Central Administrative District of Moscow refused to authorize the event, considering that the aim of the picket would trigger “a negative reaction in society” and could lead to “group violations of public order which can be dangerous to its participants”.
2.4 On 16 July 2008, the author filed a complaint against this refusal with the Tagansky District Court of Moscow. He argued that Russian law does not permit a blanket ban on conducting a peaceful assembly, as long as the purpose of the assembly is in conformity with constitutional values. He added that if the Prefecture had any serious grounds to believe that the proposed picket would trigger mass riots, they should have arranged sufficient police protection for participants of the assembly in order to secure the exercise of their constitutional right to peaceful assembly.
2.5 On 18 September 2008, the Tagansky District Court rejected the complaint and endorsed the municipal authority’s argument that it was impossible to ensure security of the participants of the event and avoid riots, as the proposed event would provoke strong public reaction. In the court’s opinion, the decision of 11 July 2008 was in conformity with both national law and the provisions of the European Convention on Human Rights and Fundamental Freedoms. On 5 October 2008, the author appealed the judgement before the Moscow City Court on cassation proceedings, but his appeal was rejected on 18 December 2008.
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Consideration of the merits
9.3 The Committee recalls that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, is essential for the public expression of a person’s views and opinions, and indispensable in a democratic society.{{8}} It also recalls that States parties must put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression by means of an assembly.{{9}} A restriction of the right of peaceful assembly is permissible only if it is (a) in conformity with the law, and (b) necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.
9.4 In the present case, the Committee observes that both the State party and the author agree that the denial of permission to hold a picket from 1 p.m. to 2 p.m. on 19 July 2008 in front of the Iranian Embassy in Moscow was an interference with the author’s right of assembly, but the parties disagree as to whether it was a permissible restriction.
9.5 The Committee also notes that the State party defends the denial of permission to hold the picket concerned as necessary in the interest of public safety. Although the author contends that the safety rationale was a pretext for denying the permit, the Committee finds it unnecessary to evaluate this factual allegation, because the author’s claim under article 21 can be decided on the assumption that the challenged restriction was motivated by concern for public safety.
9.6 The Committee notes that permission for the author’s proposed picket was denied on the sole ground that the subject it addressed, namely, advocacy of respect for the human rights of persons belonging to sexual minorities, would provoke a negative reaction that could lead to violations of public order. The denial had nothing to do with the chosen location, date, time, duration or manner of the proposed public assembly. Thus the decision of the Deputy Prefect of the Central Administrative District of Moscow of 11 July 2008 amounted to a rejection of the author’s right to organize a public assembly addressing the chosen subject, which is one of the most serious interferences with the freedom of peaceful assembly. The Committee notes that freedom of assembly protects demonstrations promoting ideas that may be regarded as annoying or offensive by others and that, in such cases, States parties have a duty to protect the participants in such a demonstration in the exercise of their rights against violence by others. It also notes that an unspecified and general risk of a violent counterdemonstration or the mere possibility that the authorities would be unable to prevent or neutralize such violence is not sufficient to ban a demonstration. The State party has not provided the Committee with any information in the present case to support the claim that a “negative reaction” to the author’s proposed picket by members of the public would involve violence or that the police would be unable to prevent such violence if they properly performed their duty. In such circumstances, the obligation of the State party was to protect the author in the exercise of his rights under the Covenant and not to contribute to suppressing those rights. The Committee therefore concludes that the restriction on the author’s rights was not necessary in a democratic society in the interest of public safety, and violated article 21 of the Covenant.
[[8]]8. See communication No. 1948/2010, Turchenyak et al v. Belarus, Views adopted on 24 July 2013, para. 7.4.[[8]]
[[9]]9. See the Committee’s general comment No. 34 (2011) on freedoms of opinion and expression, para. 23, Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 40, vol. I (A/66/40 (Vol. I)), annex V. The Committee notes that although general comment No. 34 refers to article 19 of the Covenant, it also provides guidance with regard to elements of article 21. See communication No. 1790/2008, Govsha et al. v. Belarus, Views adopted 27 July 2012, para. 9.4.[[9]]
Link to full text of the report: Communication-CCPR-Russian Federation-2013-eng
