I correctly predicted that there was a violation of human rights in IVANOV v. RUSSIA.

Information

  • Judgment date: 2023-01-10
  • Communication date: 2019-05-28
  • Application number(s): 72144/14
  • Country:   RUS
  • Relevant ECHR article(s): 3, 8, 8-1, 13, 14
  • Conclusion:
    Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture
    Degrading treatment
    Inhuman treatment)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.711733
  • Prediction: Violation

  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Vasiliy Anatolyevich Ivanov, is a Russian national, who was born in 1986 and lives in Nigozero, the Republic of Kareliya.
He is represented before the Court by Ms M.S.
Kozlovskaya, a lawyer practising in St Petersburg.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a member of St Petersburg Gay-Straight Alliance.
1.
Incident of 12 June 2012 On 12 June 2012, the anniversary of the declaration of independence of Russia, a demonstration in support of constitutional rights and freedoms took place in the Konnyushennaya Square in St Petersburg.
Several thousand people took part in the event with a number of activist groups present and clearly distinguishable with their respective flags and banners.
The applicant was part of the LGBT activist group.
He had a banner with ‘Alliance for LGBT equality’ written on it.
A group of “skinhead” looking persons was spotted next to the venue by the participants.
After the event, the applicant and his group were leaving the Palace Square in the direction of the Nevskiy Prospekt underground station along the Griboyedov channel embankment.
At around 5.10 p.m. the applicant got assaulted by a group of 8 to 10 people, the same “skinhead” looking persons spotted earlier next to the demonstration.
The attack took place near the building at 6, Griboyedov Channel Embankment.
The assaulters shouted: “For Sparta!”.
The applicant was punched in the face and his rainbow flag and the banner were thrown out in the channel.
2.
Incident of 12 June 2012 The applicant complained to the police at once.
The ensuing investigation identified Mr De.
as a perpetrator of the attack on the applicant.
Mr De.
was a member of the Russian Run (Русская пробежка), a group promoting Russian ethnicity and Russian way of life.
On 25 December 2013 the justice of the peace of St Petersburg examined the criminal case against Mr De.
and convicted him of having inflicted light bodily harm on the applicant “without obvious reason” (из хулиганских побуждений).
Mr De.
was sentenced to five months of correctional labour which represented a five percent deduction from Mr De.’s salary to be paid to the State.
Given the fact that Mr De.
spent some time in pre-trial detention, the court released him at once.
By a judgment of 5 May 2014 the Dzerzhinskiy District Court of St Petersburg upheld the judgment disregarding the applicant’s arguments who insisted that the attack had a homophobic character and that it had to be characterised legally as such.
B.
Relevant domestic law and practice Section 116 of the Criminal Code of Russia provides that infliction of light bodily harm is punishable by mandatory labour of up to three hundred and sixty hours, or correctional labour of up to one year, or restriction of liberty of up to two years, or forced labour of up to two years, or arrest of up to six months, or imprisonment of up to two years.
The same Section provides for the same punishments if the same acts were committed “without obvious reason” (из хулиганских побуждений) or motivated by political, ideological, racial, ethnic or religious hatred, or the enmity in respect of a social group (по мотивам политической, идеологической, расовой, национальной или религиозной ненависти или вражды либо по мотивам ненависти или вражды в отношении какой‐либо социальной группы).
COMPLAINTS Under Article 3 of the Convention, taken alone and in conjunction with Article 14 of the Convention, the applicant complains about the State’s breach of positive obligation properly to react to the incident.
He claims, in particular, that the punishment was too mild and that the domestic courts failed to characterise the attack as homophobic.

Judgment

THIRD SECTION
CASE OF IVANOV v. RUSSIA
(Application no. 72144/14)

JUDGMENT
STRASBOURG
10 January 2023

This judgment is final but it may be subject to editorial revision. In the case of Ivanov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Yonko Grozev, President, Peeter Roosma, Ioannis Ktistakis, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 72144/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 November 2014 by a Russian national, Mr Vasiliy Anatolyevich Ivanov (“the applicant”), born in 1986 and living in Nigozero, the Republic of Karelia, Russia, who was represented by Ms M. Kozlovskaya, a lawyer practising in St Petersburg;
the decision to give notice of the application to the Russian Government (“the Government”), initially represented by Mr M. Galperin, a former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov;
the parties’ observations;
Having deliberated in private on 29 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant is a member of the St Petersburg Gay-Straight Alliance “Alliance of Heterosexuals for LGBTI Equality”. 2. On 12 June 2012, the anniversary of the Russian declaration of independence, a demonstration in support of constitutional rights and freedoms took place in St Petersburg. Several thousand people took part in the event. The applicant was a part of an LGBTI activist group and had a banner with “Alliance for LGBTI equality” written on it. A group of people resembling “skinheads” was spotted next to the venue by the participants. 3. The demonstration ended at 5 p.m. The applicant left the venue with the banner in his hand. He was accompanied by people with rainbow umbrellas and flags. Ten minutes later, a group of eight to ten men, the same as those earlier identified as resembling “skinheads”, assaulted the applicant’s group while shouting: “For Sparta!”. One of the assailants (Mr D.) punched the applicant in the face and took the banner from his hands by force. Mr D. then tried to tear the banner into pieces. Unsuccessful, he threw it into a canal. 4. On the same day the applicant reported the attack to the police. On 18 June 2012 the police initially opened investigation into the applicant’s allegation of assault, having qualified it as “battery committed on the grounds of hatred in respect of a social group”, an offence punishable under Article 116 § 2 (b) of the Russian Criminal Code. The ensuing investigation identified Mr D. as one of the perpetrators involved in the attack and established that he was a member of “Russian Run” (Русская пробежка), a group promoting “Russian ethnicity and a Russian way of life”. The identities of the other perpetrators remained unknown. 5. On 25 December 2013 the justice of the peace of St Petersburg examined the criminal case against Mr D. At the court hearing Mr D. explained that, because of his religious views, he was against “propaganda for homosexuality”. He had seen the applicant with his banner during the demonstration on 12 June 2012 and then attacked him because he did not like the words on his banner or the rainbow symbols. In his view they amounted to “propaganda” for homosexuality and were therefore in breach of domestic law. The court convicted him of having committed battery for disorderly motives, an offence proscribed by Article 116 § 2 (a) of the Criminal Code. He was sentenced to five months of correctional labour in the form of a five‐percent deduction from his salary to be paid to the State. Given the fact that Mr D. had been in pre-trial detention, the court released him. The parties challenged the sentence on appeal. 6. On 5 May 2014 the Dzerzhinskiy District Court of St Petersburg upheld the sentence on appeal. It dismissed the applicant’s argument that the attack on him was a hate crime committed for homophobic motives. Referring to Mr D.’s statement at the initial trial, the court considered that he was against “propaganda for homosexuality” but that he had not felt any hatred towards homosexuals at the time of the attack. 7. On 30 October 2014 the St Petersburg City Court dismissed a cassation appeal lodged by Mr D.
8. Relying on Article 3 of the Convention, taken alone and in conjunction with Article 14 of the Convention, the applicant complained that the State had not fulfilled its positive obligation to properly respond to the incident. He claimed, in particular, that the domestic courts had failed to legally classify the attack as a homophobic crime. The complaint also raised an issue under Article 13 of the Convention. THE COURT’S ASSESSMENT
9. The Court notes a preliminary issue raised by the Government, namely that the signature of the applicant’s representative on his comments in reply to their observations was allegedly not genuine. That allegation was not substantiated by an expert opinion or any other evidence. The Court therefore cannot accept it. 10. As to the Government’s objections against the admissibility of the complaint, the Court dismisses the argument that, being a member of the “Alliance of Heterosexuals for LGBTI Equality”, the applicant could not have been a victim of a homophobic attack. The actual sexual orientation of a victim is not a decisive factor. Targets of hate crimes may be selected on the grounds of their perceived connection with, or membership of, a group (see the Explanatory Memorandum of the Steering Committee for Human Rights on Recommendation CM/Rec(2010)5 cited in Sabalić v. Croatia, no. 50231/13, § 52, 14 January 2021). 11. The Court cannot accept the Government’s non-exhaustion plea, which referred to the applicant’s failure to appeal against the investigators’ decisions at the pre-trial stage of the proceedings. The applicant was not required to challenge those decisions, in order to comply with the exhaustion rule, because it was the criminal sentence against Mr D. that constituted the final response to his complaint, not the investigators’ decisions (compare Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003; Vyatkin v. Russia (dec.), no. 15811/03, 24 January 2012; and Belevitskiy v. Russia, no. 72967/01, § 61, 1 March 2007). By challenging that sentence on appeal the applicant gave the domestic authorities an opportunity to put right the alleged violation of the Convention. Accordingly, the domestic remedies were duly exhausted. 12. The Court is also not convinced by the argument that the applicant did not suffer any significant disadvantage. The applicant’s complaint concerned his fundamental rights not to be subjected to ill‐treatment or discrimination and raised an important question of principle (compare with Zelčs v. Latvia, no. 65367/16, § 44, 20 February 2020, and contrast with Bartolo v. Malta (dec.), no. 40761/19, 7 September 2021). 13. The complaint at hand is not manifestly ill-founded or inadmissible on any other grounds and must therefore be declared admissible. 14. The general principles for assessing compliance with obligations under Article 3 taken in conjunction with Article 14 of the Convention have been summarised in Genderdoc-M and M.D. v. the Republic of Moldova (no. 23914/15, §§ 35-37, 14 December 2021), and Women’s Initiatives Supporting Group and Others v. Georgia (no. 73204/13, §§ 62-63, 16 December 2021). 15. The Court notes that in the present case the bias motive behind the attack on the applicant was overt to the authorities. The deliberate destruction of the applicant’s banner and Mr D.’s own statements clearly showed his prejudice towards the LGBTI community which the applicant had supported (see paragraphs 3 to 5 above). Nonetheless, the domestic courts convicted Mr D. of an ordinary crime of battery for disorderly motives, despite having at their disposal evidence of the homophobic overtones of the incident (see, mutatis mutandis, Oganezova v. Armenia, nos. 71367/12 and 72961/12, § 102, 17 May 2022). The existing domestic framework equipped the authorities with legal tools for investigating and prosecuting ill-treatment on the basis of hatred towards LGBTI community which could be qualified as a “social group” for the purposes of Article 116 § 2 (b) of the Russian Criminal Code and was mentioned in the initial police decision (compare with Association ACCEPT and Others v. Romania, no. 19237/16, § 125, 1 June 2021). Given the clear hate motive behind the attack and the precariousness of the situation of the LGBTI community in Russia (see Berkman v. Russia, no. 46712/15, § 55, 1 December 2020), it was essential for the domestic authorities to adequately address the issue of the discrimination motivating the attack, bearing in mind that it may have been mixed in with other motives (see Škorjanec v. Croatia, no. 25536/14, § 65, 28 March 2017). 16. Having studied the materials of the case and the arguments of the parties, the Court finds that the Russian authorities ignored the central element of the incident, namely the discriminatory motive behind the assault on the applicant. 17. It follows that there has been a violation of Article 3 taken in conjunction with Article 14 of the Convention. 18. In view of the above finding, the Court does not consider it necessary to examine separately the admissibility and merits of the complaint under Article 13 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
19. The applicant claimed compensation for non-pecuniary damage, leaving the amount to the Court’s discretion. He also claimed compensation of costs and expenses in the amount of 11,093 euros (EUR). 20. The Government left it to the Court to determine the amount of compensation for non-pecuniary damage. They submitted that the claim for costs and expenses was excessive and unsubstantiated. 21. The Court considers it reasonable to award the applicant EUR 16,300 in respect of non‐pecuniary damage, plus any tax that may be chargeable. It dismisses the claim for costs and expenses due to the applicant’s failure to show that he had paid, or was under an obligation to pay, any costs to his representative (compare Mazepa and Others v. Russia, no. 15086/07, §§ 89‐90, 17 July 2018; Radzevil v. Ukraine, no. 36600/09, §§ 94‐96, 10 December 2019; Udaltsov v. Russia, no. 76695/11, § 201, 6 October 2020; and Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 61, 8 October 2020). FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 16,300 (sixteen thousand three hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 10 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Yonko Grozev Deputy Registrar President

THIRD SECTION
CASE OF IVANOV v. RUSSIA
(Application no. 72144/14)

JUDGMENT
STRASBOURG
10 January 2023

This judgment is final but it may be subject to editorial revision. In the case of Ivanov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Yonko Grozev, President, Peeter Roosma, Ioannis Ktistakis, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 72144/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 November 2014 by a Russian national, Mr Vasiliy Anatolyevich Ivanov (“the applicant”), born in 1986 and living in Nigozero, the Republic of Karelia, Russia, who was represented by Ms M. Kozlovskaya, a lawyer practising in St Petersburg;
the decision to give notice of the application to the Russian Government (“the Government”), initially represented by Mr M. Galperin, a former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov;
the parties’ observations;
Having deliberated in private on 29 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant is a member of the St Petersburg Gay-Straight Alliance “Alliance of Heterosexuals for LGBTI Equality”. 2. On 12 June 2012, the anniversary of the Russian declaration of independence, a demonstration in support of constitutional rights and freedoms took place in St Petersburg. Several thousand people took part in the event. The applicant was a part of an LGBTI activist group and had a banner with “Alliance for LGBTI equality” written on it. A group of people resembling “skinheads” was spotted next to the venue by the participants. 3. The demonstration ended at 5 p.m. The applicant left the venue with the banner in his hand. He was accompanied by people with rainbow umbrellas and flags. Ten minutes later, a group of eight to ten men, the same as those earlier identified as resembling “skinheads”, assaulted the applicant’s group while shouting: “For Sparta!”. One of the assailants (Mr D.) punched the applicant in the face and took the banner from his hands by force. Mr D. then tried to tear the banner into pieces. Unsuccessful, he threw it into a canal. 4. On the same day the applicant reported the attack to the police. On 18 June 2012 the police initially opened investigation into the applicant’s allegation of assault, having qualified it as “battery committed on the grounds of hatred in respect of a social group”, an offence punishable under Article 116 § 2 (b) of the Russian Criminal Code. The ensuing investigation identified Mr D. as one of the perpetrators involved in the attack and established that he was a member of “Russian Run” (Русская пробежка), a group promoting “Russian ethnicity and a Russian way of life”. The identities of the other perpetrators remained unknown. 5. On 25 December 2013 the justice of the peace of St Petersburg examined the criminal case against Mr D. At the court hearing Mr D. explained that, because of his religious views, he was against “propaganda for homosexuality”. He had seen the applicant with his banner during the demonstration on 12 June 2012 and then attacked him because he did not like the words on his banner or the rainbow symbols. In his view they amounted to “propaganda” for homosexuality and were therefore in breach of domestic law. The court convicted him of having committed battery for disorderly motives, an offence proscribed by Article 116 § 2 (a) of the Criminal Code. He was sentenced to five months of correctional labour in the form of a five‐percent deduction from his salary to be paid to the State. Given the fact that Mr D. had been in pre-trial detention, the court released him. The parties challenged the sentence on appeal. 6. On 5 May 2014 the Dzerzhinskiy District Court of St Petersburg upheld the sentence on appeal. It dismissed the applicant’s argument that the attack on him was a hate crime committed for homophobic motives. Referring to Mr D.’s statement at the initial trial, the court considered that he was against “propaganda for homosexuality” but that he had not felt any hatred towards homosexuals at the time of the attack. 7. On 30 October 2014 the St Petersburg City Court dismissed a cassation appeal lodged by Mr D.
8. Relying on Article 3 of the Convention, taken alone and in conjunction with Article 14 of the Convention, the applicant complained that the State had not fulfilled its positive obligation to properly respond to the incident. He claimed, in particular, that the domestic courts had failed to legally classify the attack as a homophobic crime. The complaint also raised an issue under Article 13 of the Convention. THE COURT’S ASSESSMENT
9. The Court notes a preliminary issue raised by the Government, namely that the signature of the applicant’s representative on his comments in reply to their observations was allegedly not genuine. That allegation was not substantiated by an expert opinion or any other evidence. The Court therefore cannot accept it. 10. As to the Government’s objections against the admissibility of the complaint, the Court dismisses the argument that, being a member of the “Alliance of Heterosexuals for LGBTI Equality”, the applicant could not have been a victim of a homophobic attack. The actual sexual orientation of a victim is not a decisive factor. Targets of hate crimes may be selected on the grounds of their perceived connection with, or membership of, a group (see the Explanatory Memorandum of the Steering Committee for Human Rights on Recommendation CM/Rec(2010)5 cited in Sabalić v. Croatia, no. 50231/13, § 52, 14 January 2021). 11. The Court cannot accept the Government’s non-exhaustion plea, which referred to the applicant’s failure to appeal against the investigators’ decisions at the pre-trial stage of the proceedings. The applicant was not required to challenge those decisions, in order to comply with the exhaustion rule, because it was the criminal sentence against Mr D. that constituted the final response to his complaint, not the investigators’ decisions (compare Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003; Vyatkin v. Russia (dec.), no. 15811/03, 24 January 2012; and Belevitskiy v. Russia, no. 72967/01, § 61, 1 March 2007). By challenging that sentence on appeal the applicant gave the domestic authorities an opportunity to put right the alleged violation of the Convention. Accordingly, the domestic remedies were duly exhausted. 12. The Court is also not convinced by the argument that the applicant did not suffer any significant disadvantage. The applicant’s complaint concerned his fundamental rights not to be subjected to ill‐treatment or discrimination and raised an important question of principle (compare with Zelčs v. Latvia, no. 65367/16, § 44, 20 February 2020, and contrast with Bartolo v. Malta (dec.), no. 40761/19, 7 September 2021). 13. The complaint at hand is not manifestly ill-founded or inadmissible on any other grounds and must therefore be declared admissible. 14. The general principles for assessing compliance with obligations under Article 3 taken in conjunction with Article 14 of the Convention have been summarised in Genderdoc-M and M.D. v. the Republic of Moldova (no. 23914/15, §§ 35-37, 14 December 2021), and Women’s Initiatives Supporting Group and Others v. Georgia (no. 73204/13, §§ 62-63, 16 December 2021). 15. The Court notes that in the present case the bias motive behind the attack on the applicant was overt to the authorities. The deliberate destruction of the applicant’s banner and Mr D.’s own statements clearly showed his prejudice towards the LGBTI community which the applicant had supported (see paragraphs 3 to 5 above). Nonetheless, the domestic courts convicted Mr D. of an ordinary crime of battery for disorderly motives, despite having at their disposal evidence of the homophobic overtones of the incident (see, mutatis mutandis, Oganezova v. Armenia, nos. 71367/12 and 72961/12, § 102, 17 May 2022). The existing domestic framework equipped the authorities with legal tools for investigating and prosecuting ill-treatment on the basis of hatred towards LGBTI community which could be qualified as a “social group” for the purposes of Article 116 § 2 (b) of the Russian Criminal Code and was mentioned in the initial police decision (compare with Association ACCEPT and Others v. Romania, no. 19237/16, § 125, 1 June 2021). Given the clear hate motive behind the attack and the precariousness of the situation of the LGBTI community in Russia (see Berkman v. Russia, no. 46712/15, § 55, 1 December 2020), it was essential for the domestic authorities to adequately address the issue of the discrimination motivating the attack, bearing in mind that it may have been mixed in with other motives (see Škorjanec v. Croatia, no. 25536/14, § 65, 28 March 2017). 16. Having studied the materials of the case and the arguments of the parties, the Court finds that the Russian authorities ignored the central element of the incident, namely the discriminatory motive behind the assault on the applicant. 17. It follows that there has been a violation of Article 3 taken in conjunction with Article 14 of the Convention. 18. In view of the above finding, the Court does not consider it necessary to examine separately the admissibility and merits of the complaint under Article 13 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
19. The applicant claimed compensation for non-pecuniary damage, leaving the amount to the Court’s discretion. He also claimed compensation of costs and expenses in the amount of 11,093 euros (EUR). 20. The Government left it to the Court to determine the amount of compensation for non-pecuniary damage. They submitted that the claim for costs and expenses was excessive and unsubstantiated. 21. The Court considers it reasonable to award the applicant EUR 16,300 in respect of non‐pecuniary damage, plus any tax that may be chargeable. It dismisses the claim for costs and expenses due to the applicant’s failure to show that he had paid, or was under an obligation to pay, any costs to his representative (compare Mazepa and Others v. Russia, no. 15086/07, §§ 89‐90, 17 July 2018; Radzevil v. Ukraine, no. 36600/09, §§ 94‐96, 10 December 2019; Udaltsov v. Russia, no. 76695/11, § 201, 6 October 2020; and Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 61, 8 October 2020). FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 16,300 (sixteen thousand three hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 10 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Yonko Grozev Deputy Registrar President