Strategic Litigation: Defending Rights of Lgbt People

STRATEGIC LITIGATION: DEFENDING RIGHTS OF LGBT PEOPLE

STRATEGIC LITIGATION: DEFENDING RIGHTS OF LGBT PEOPLE Second edition (2016 – 2019), «Coming Out» LGBT-group

COMINGOUTSPB.COM “COMING OUT” LGBT INITIATIVE GROUP

Since 2008 “Coming Out” works in St. Petersburg to support LGBT communities and contribute to building the movement for equal rights. We provide free psychological and legal support to LGBT and their loved ones, and carry out educational activities, we hold meetings, organize seminars and round tables, produce informational materials about LGBTIQ and related topics, monitor and document discrimination on the basis of sexual orientation, gender identity, and gender expression, and organize cultural events in St. Petersburg, creating a platform for dialogue between various parts of society.

IF YOU NEED FREE COUNSELLING: Sign up using: • The site form: www.comingoutspb.com/poluchitkonsultatsiyu • E-mail us: [email protected] • Сall: +7 (812) 242 54 69

IF YOU NEED LEGAL ADVICE Оn cases related to violation of LGBTIQ rights (sexual orientation or gender identity issues): Sign up using: • The site form: www.comingoutspb.com/poluchitkonsultatsiyu • E-mail: [email protected] • Сall: +7 (812) 242 54 69 и +7 (950) 020 39 60

IF YOU ARE A TRANSGENDER PERSON And you need a peer-based support from other transgender people or activists of Trans*Mission Group, or you need legal advice on changing documents, or you have faced discrimination: • E-mail: [email protected]

YOU CAN CHECK OTHER PROGRAMS OF COMING OUT AND SEE OUR ACTIVITIES HERE: www.comingoutspb.com www.vk.com/comingoutspb www.facebook.com/comingoutspb www.instagram.com/comingoutspb/ INTRODUCTION 5

CHAPTER 1 HATE CRIMES 15

CHAPTER 2 HATE SPEECH 31

CHAPTER 3 THE LAW BANNING “PROPAGANDA OF HOMOSEXUALITY” 41

CHAPTER 4 FREEDOM OF ASSEMBLY 55

CHAPTER 5 LABOR DISCRIMINATION 65

CHAPTER 6 LEGAL GENDER RECOGNITION 71

CHAPTER 7 DISCRIMINATION IN THE PRIVATE SPHERE 79

CHAPTER 8 FAKE DATES 87 May Day Demonstration 2014 Photo: Wikipedia INTRODUCTION Strategic Litigation: defending rights of LGBT People

We live in a world where every person is valuable. Peo- LGBT people are subject to restrictions in expressing ple may have different ideas about life, society systems or their opinions and having public events. LGBT people, functioning of the state. especially transgender people, are discriminated against in the exercise of labor rights, in healthcare, education However, while living in society, we need to reckon with and social services. Some people refuse to sell goods interests of other people. The modern world is divided into and services to transgender people, only because they states that have committed to respect human rights and may appear different. freedoms - principles that ensure the dignity and equality of every single person, regardless of how he or she differs At the heart of these restrictions for LGBT people is stigma, from others. These are the guarantees that allow us to live which always leads to discrimination based on sexual peacefully and to remain human in any situation. orientation and gender identity. And stigmatization entails a high level of physical and mental violence. The movement for equal rights for all people, regardless of their sexual orientation and gender identity, is being This attitude is unfair, which is why it is necessary to use actively developed. Its goal is to achieve genuine equali- current legal and advocacy mechanisms and also create ty for lesbians, homosexuals, bisexuals and transgender new ones. They will allow LGBT* people to gain access to people, with cisgender heterosexual people and the opportunities that other people have. And it’s good to do the opportunities they enjoy. The movement’s focus it with allies and change our lives together. Human rights is understanding that all people, even if they are differ- are both a value and a practical tool that allows LGBT* ent from each other, are first of all people, and therefore people to qualitatively change the situation, the laws and they cannot be subject to restrictions just because they practice of their application, to achieve equal opportunities are different. This is the basis of the modern concept of with other people based on human dignity and equality. human rights. This idea is simple and understandable, but is not fully implemented. The pursuit of this idea al- I believe that sooner or later all people will have equal lows everyone to feel like a real member of society, en- opportunities, regardless of their sexual orientation joying full rights. and gender identity. The path to this goal is thorny and requires much effort and time, but the result is worth Despite the fact that discrimination is prohibited in pursuing, because it means equal opportunities for all. Russia by law, today we can see that law and its practice prove LGBT people don’t have the same rights as the other people do.

LGBT people have the right to life and personal liberty, but there are hate crimes and murders that are not always effectively investigated. Physical violence in the street or at home, emerging from homo/bi/ transphobia is a a common phenomenon that many representatives of LGBT community experience through their lives.

Homosexual people create families, but by virtue of law they cannot register marriage and openly raise children together or exercise parental rights. They don’t have the same legal guarantees of family life as heterosexual people, such as: the right to see their partner in inten- sive care and be close to them, to inherit and to receive social support.

6 ЛГБТ-инициативная группа «Выход» Introduction

The Strategic Litigation About the story of Program in Coming Out “Strategic Litigation”

Since 2008 “Coming Out” LGBT group works for univer- The creation of the program was a big step in the devel- sal recognition by the society and the state of human opment of legal field of Coming Out. This was the first dignity and equal rights of every single person, regard- program of a local LGBT group that sought to implement less of their sexual orientation and / or gender identity the rights and freedoms of LGBT people as understood in St. Petersburg. by international human rights bodies through litigation at the local level on the basis of Russia’s international In 2012 Coming Out created The Strategic Litigation obligations. Program and its purpose is to change the practice of applying laws so that they could protect LGBT people Such understanding is a human rights standard that does from violence and discrimination using strategic litigation; not depend on political, economic and social conditions to achieve positive examples of protecting the rights of in a particular state and guarantees everyone equal rights LGBT people in modern conditions and inspire the LGBT and freedoms without any discriminatory approach. community to use legal mechanisms to protect their rights. From 2012 to 2015 we focused on issues such as hate The results of the program for 2012-2015 are described crimes and hate speech, laws banning so-called “pro- in the brochure «Strategic Litigation as a Method for paganda of homosexualism” freedom of assembly, la- Protection and Promotion of LGBT Human Rights: bor discrimination and changing documents for trans- “Coming Out” LGBT Group experience in St. Petersburg gender people. (2012-2015). (note: see comingoutspb.com, section “Publications” – “Human Rights”). These areas of work have been supplemented by topics of discrimination in private sphere and fake date cases during The brochure in your hands summarizes the experience of recent years. The later became a new direction of legal strategic litigation in defense of LGBT rights in St. Peters- work of Coming Out burg from 2016 to the first 6 months of 2019 and introduc- es LGBT-activists, partners and all those interested to the approaches of the Strategic Litigation program.

7 Strategic Litigation: defending rights of LGBT People

As we reflect on a busy year of advocacy, I wish to first congratulate you all for the challenging and vital work that your organisation carried out this past year in advancing the rights and voices of lesbian, gay, bisexual and trans and gender diverse persons in Russia.

As the U.N.’s independent expert tasked with achieving the eradication of violence and discrimination on the basis of sexual orientation and gender identity, I am keenly aware of the challenges faced by activists working to ensure that the human rights of LGBT persons are respected by all states.

Access to justice and strategic litigation remain the flagship in the fleet of initiatives to safeguard the rights of LGBT persons. As evidenced by the recent landmark rulings in India, Zimbabwe, and Trinidad and Tobago, cases which may at first seem far-fetched and impossible to win, can sometimes wield powerful and breathtaking victories for the LGBT community.

At the end of the day (or we could say “at any moment of the day”), the responsibility to eradicate violence and discrimination lies with the state. Of course, when these portions of government do not take such steps, strategic litigation often becomes one of the few conduits for seeking redress. Litigation has the power to not only “right the wrong” experienced by brave and resilient individuals willing to bring their cases to public trial, but also for the broader LGBT community where countless members have likely experienced similar scenarios without legal intervention.

Through media attention, academic discourse, and popular discussions created by litigation, Coming Out is providing both a framework and foundation which future LGBT activists in Russia can build upon for generations to come. Your work is seen, it is appreciated, and it is encouraged, and you have the support of an international community that also takes inspiration in your excellence and your dedication. I wish you all the best of luck in this endeavor.

Victor Madrigal-Borloz

Mr. Victor Madrigal-Borloz (Costa Rica; [email protected]) is the United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, a position he has held since January 2018. He is currently the Eleanor Roosevelt Fellow and a Senior Visiting Researcher at the Human Rights Program of Harvard University Faculty of Law.

8 ЛГБТ-инициативная группа «Выход» Introduction

Discrimination and violence against LGBT people occurs How do we work not only because an aggressor deliberately violates the The classical strategic litigation concept assumes that law. Prejudice, phobias and stigmatization of LGBT peo- through litigation it is possible to quickly, step by step, ple affect the number of violation of their rights. That’s why improve the situation of LGBT people, moving on the along with legal work, the timely dissemination of infor- path towards equality. This approach is effective in mation in general society about the cases of LGBT rights those states that invest considerable amount of atten- abuse and the actions that “Coming Out” takes is important. tion to the rule of law. As for us we work in a context It is also important to disseminate this information to deci- where legal institutions of the state don’t work effec- sion makers who are ready to support LGBT people, or are tively enough. at least neutral when it comes to issues of homo-, bisexuality, and gender identity. Russian courts apply provisions of international documents in the field of human rights selectively and with These actions achieve both narrow legal goals of strategic their own interpretation. This interpretation often differs legal proceedings and also change position of LGBT people from the classical one, and significantly complicates the in St. Petersburg in a qualitative way. For example we are tasks before the strategic litigation. confident that if police officers hear abou a case of discrimination against LGBT people in St. Petersburg from mass For example, decisions of the European Court of Human media and about the fact that the Human Rights Ombuds- Rights, which Russia is obliged to implement, are not man of St. Petersburg strongly disapproves, may influence treated with due significance. The state is ready to pay them. Next time the police would be less likely to be guid- monetary compensation for human rights violations, but ed by phobias and prejudices. They would also respond to it is not ready to carry out systemic legislative reforms cases of rights violation of LGBT people in accordance with aimed at a qualitative change in the situation of vulner- the law. able groups, including gays, lesbians, bisexuals and transgender people of Russia. The difference between strategic cases and other legal work of Coming Out is that efforts taken under the program Moreover spread of homo-, bi- and transphobia in Rus- are aimed not only at helping a specific person (which, of sia results in increasing of number of violations of LGBT course, is important), but also changing the position of the rights and accumulating violence. Classical legal meth- entire social group. Through litigations affecting fundamen- ods applied in isolation do not always help to improve tal issues of equality and protection against discrimination the situation of LGBT people in St. Petersburg . for LGBT people, Coming Out puts the problem in the legal framework. It draws attention of law enforcement agen- That is why strategic litigation in Coming Out is not just cies, courts and decision makers to a practical implemen- a legal approach, but is complemented by advocacy and tation of the law which prohibits discrimination against communications. LGBT people. This allows translating application of legal norms into the real life of LGBT people, changing the situa- We try not only to ensure that courts make decisions tion here and now that establish the fact of discrimination or violence due to sexual orientation and (or) gender identity, but also STRATEGIC LITIGATION CASES ADDRESS ONE OR restore violated rights and oblige an offender to pay MORE OF THE FOLLOWING TASKS: compensation. It is important for us that changes of the • Change legislation; situation of LGBT people in St. Petersburg take place • Change ways and methods of law enforcement; not several years after, once the violation is recognized • Change rules of behavior of subjects that affect by the European Court of Human Rights of the Supreme LGBT people position in society; Court of Russia, but here and now. And this can only be • Test new or previously not working legal standards; achieved through an integrated approach: legal, advoca- • Demonstrate intersection of discriminations through cy and informational methods. handling of cases of intersectional discrimination.

9 Strategic Litigation: defending rights of LGBT People

All the court cases described in the brochure are aimed at demonstration on Nevsky Prospect is not a violation changing the situation in Saint Petersburg to improve LGBT of the law, even if it wasn’t indicated in the initial notifi- people life. cation to the authorities that such props would be used.

One of the main problems of stigmatization of LGBT people In another group of cases regarding legal document is the law “on the prohibition of the promotion of non- change for transgender people, we focused on raising traditional sexual relations among minors”. It is not aimed awareness of the problem and providing versatile argu- to protect children from mythical propaganda, but to ments for the courts. And the courts considering cases ensure that issues of equality for LGBT people are not before the introduction of the simplified procedure for discussed. LGBT people do not have legal protection documents change gradually let go of the requirements against discrimination and violence on the basis of for a mandatory surgical operation to satisfy the appli- sexual orientation and gender identity. cation of transgender person for a document change.

To change the legislation, it is required to test it in the Strategic legal proceedings change rules of conduct for national legal system, and then, to apply to internation- decision-makers relevant to the LGBT community. Every al legal bodies, using the capabilities of the European year on May 17th Coming Out holds an action “Rainbow Court of Human Rights and UN Committees. It’s neces- Flashmob” for the International Day against homophobia, sary to raise the question of whether such laws comply biphobia and transphobia. It’s been a successful event with human rights requirements or not. in Saint Petersburg for 10 years already. It allows LGBT communities in St. Petersburg to openly and publicly If decisions/recommendations of international bodies for discuss current issues of LGBT agenda. LGBT people are positive, we need to participate in the su- pervision of their implementation by Russia, monitoring In the past few years authorities have insisted on fact that implementation and providing information about it. an open discussion of homo / bisexuality and transgender issues in “hyde parks” violates the law “On prohibition The legal system is designed in such a way that once of promotion of non-traditional sexual relations.” They also a law is created, it may acquire a different interpretation indicated that the day and time the activists chose was al- over time while political, social or economic situations ready booked for cultural events are being changed. LGBT activists appealed to several courts, which sided with A major role in this process is played by courts. They con- the authorities. However, in this situation we were able to sider specific cases and apply existing legal norms in order get court clarifications that the simultaneous holding of a to resolve a specific situation. This approach most clearly cultural even and an LGBT rally was not illegal. manifests itself when typical situations actually reveal issues important for LGBT community. This response showed that LGBT actions are possible to be held in “guide parks”. In order to consolidate this In one of Coming Out cases, the court concluded that practice, Coming Out appealed to the Statutory Court of demonstration of a rainbow flag at the May Day St. Petersburg, which confirmed the position on May 17

In 2017, the European Court of Human Rights adopted a ruling in the case of “Bayev and Others v. Russia”, which recognized non-compliance of “the law on promotion of homosexualism” with requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms for the first time. «Coming Out» and other organizations acted as a «friend of the court», presenting its opinion and after adoption of the court decision it regularly presents facts about the state’s failure to comply with this decision, insisting on repealing the law.

10 ЛГБТ-инициативная группа «Выход» Introduction in 2019, the International Day against Homophobia, Bipho- legal strategy, but an opportunity to tell the public and the bia and Transphobia. This position is mandatory for all law state about the problem and make it necessary to solve it. enforcement agencies of St. Petersburg. Combination of such elements in each case strengthens Up until 2018 internet sites containing information about it and allows us to build work in such a way that the the life of LGBT people have not encountered any problems situation could change qualitatively at a local level. from Roskomnadzor (the Russian Federal Service for Su- pervision of Communications, Information Technology and Our goal is to change the situation of how rights of LGBT Mass Media). people are respected “here and now”. That is why the first goal of every case is to resolve the situation at the nation- However a year ago the state accused 3 web resources al level. of violating the law «On the prohibition of propaganda of non-traditional sexual relations». Websites like Gay.Ru, Unfortunately it is not always possible now, so if nation- Lesbi.Ru and “Parni Plus” were accused of disseminating al law enforcement agencies do not respond adequately, information («propaganda») prohibited by law. Now there “Coming Out” turns to the European Court of Human Rights was a question about testing the laws that had not previ- or the UN Human Rights Treaty Bodies. ously been applied to Internet LGBT resources. Coming Out represented “Parni Plus” and was able to prove to the court A legal procedure takes time. Coming Out experience of that Roskomnadzor and other courts acted on the basis of conducting strategic legal cases indicates that the shortest an extremely broad definition of a term “propaganda” while case took six months and the most difficult one has lasted blocking the Internet resources. As a result of judicial ap- for more than 6 years and is still ongoing. peals it was possible to remove the state’s claims to the web site and it was not blocked. Coming Out prepared and sent complaints for some cases to the European Court of Human Rights, after the national Cases of intersectional discrimination allow us to show authorities had not resolved the situation. Most of the how a person who is representative of multiple vulnerable cases were communicated in November 2017, but it groups can experience restriction of his or her rights based may take several years for the European Court to fully on multiple characteristics. These cases affect different -so resolve the case. cial groups, demonstrating to non-LGBT people that everyone can suffer from discrimination. Within the framework An appeal to the European Court does not solve the prob- of the Strategic Litigation Program, Coming Out is now lem by itself. After receiving a court order, it is important to working to protect right to work of a transgender wom- comply with it, including terms of changing legislation and an who was fired immediately after she changed gender (or) the practice of its application at the national level. marker in her passport to female. Coming Out is currently conducting 4 cases in the UN An official reason for the dismissal was her profession. Committee on Human Rights and the UN Committee on She worked in this position for many years and it turned the Elimination of All Forms of Discrimination against out to be prohibited for women. Such cases make it possi- Women, as well as 15 cases in the European Court of ble for LGBT people to get support from representatives Human Rights. Sometimes Coming Out acts as a “friend of other vulnerable groups, find allies and change the of the court”, directing an opinion (amicus curiae) when situation of inequality to equality for everyone. the European Court of Human Rights considers cases that are relevant to LGBT people in Russia. All cases of strategic legal proceedings contribute a lot. The situation with LGBT people in Saint Petersburg is Strategic litigation in “Coming Out” is not only the work changing slowly but steadily. Each case is individual. One of the lawyers, but collaboration with other programs of can be strong in a legal way, but have weak information- “Coming Out”. al and advocacy potential. Another one can have no clear

11 Strategic Litigation: defending rights of LGBT People

In the framework of the case “Bayev and Others v. Russia” (complaint No. 67667/09 and 2 others), Coming Out was a “friend of the court”. The ruling of the European Court of Human Rights for this case finally established that laws prohibiting the propaganda of “homosexuality among minors” in Russia contradict the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms, which Russia has committed to comply with. Now Coming Out will observe the execution of this court judgment by Russia.

For example, program coordinator for monitoring and after the UN Committee meeting. The form has already documenting of discrimination and violence against been used in the country since February 2018 and trans- LGBT in St. Petersburg documents “Coming Out”’s stra- gender people had an opportunity to change documents tegic litigation cases and uses them in the annual dis- in the registry office without going to court. crimination monitoring report. Collaboration with partner organizations is the key “Coming Out” psychologists aid victims of discrimination to success. Coming Out works with both Russian and or violence based on sexual orientation or gender identi- foreign international organizations in the course of ty who wish to receive help. strategic legal proceedings.

Strategic legal cases reflect existence of urgent problems 7 years have passed since the launch of the Strategic of LGBT rights violations in St. Petersburg. These data are Litigation Program in 2012. Coming Out and other LGBT often used for regional and international advocacy. organizations have gained valuable experience working in difficult conditions over this period. We continue Thus every year the ombudsman for human rights in to make every effort and look for ways to change the St. Petersburg includes our data on LGBT rights abuses position of LGBT people here and now. into his annual report I believe that all our strategic litigation work sooner or later Another example is using of court cases in alternative will result in people able to experience safety and justice, reports of non-governmental organizations to interna- improving the situation for the whole group of people, and tional bodies. bringing us closer to equality of opportunity for all people, regardless of their sexual orientation or gender identity. One of the latest results is a report on Russia’s compliance with its obligations under the International Covenant on Economic, Social and Cultural Rights. It was presented to the UN Committee on Economic, Social and Cultural Rights in 2017, together with partner organizations (Stimul, Phoenix Plus, Russian LGBT Network and Transgender Le- gal Defense Project). This step raised a problem of absence of an approved certificate for “change of sex marker”. Russian authorities failed to adopt this document for 20 years. During these last years transgender people had to go to court to get documents changed.

A discussion of this issue in the UN Committee was the final straw that affected the Ministry of Health of Rus- sia. They were able to approve a certificate form shortly

12 ЛГБТ-инициативная группа «Выход» Introduction

ACKNOWLEDGMENTS their professional activity. These are Ksenia Mikhailova, Strategic litigation work would not be possible without the Dmitry Bartenev, Galina Ibryanova, Svetlana Gromova, many people who made an important input. First of all, we Valentina Frolova. would like to thank the first coordinator of the program, Kseniya Kirichenko, who established and developed stra- Without you, dear colleagues, this program would not tegic litigation work in “Coming Out” in 2012-2015. Kseniya have taken place. Your personal contribution to every also created and authored the first brochure “Strategic Lit- court action, responsiveness, empathy and high profes- igation as a Method for Defending and Advancing Rights of sionalism are the keys to success for every case. LGBT People: the experience of “Coming Out” LGBT Group in St. Petersburg (2012-2015)” (See brochure at www.co- The well-coordinated work of the “Coming Out” team gives mingoutspb.com, Section “Publications” – “Human Rights”) inspiration and supportive atmosphere to diversity of approaches for every case in the program. Thanks to every I thank the dedicated and courageous applicants who member of the team for such a contribution. entrusted us to conduct their cases and were ready to take necessary steps for long periods of time on this Allies help us to move forward, strengthen movement, difficult path. act together using different methods, and affirm human rights in real life through mutual support. These are part- I can’t list all the applicants in the introduction part, but I ners, activists of non-LGBT organizations and applicants am grateful to everyone who was brave enough to defend of the court cases - cisgender heterosexual people who their rights and is craving for qualitative changes for LGBT advocate a wide front for equal opportunities for all. people together with Coming Out. Your efforts will un- doubtedly help to keep progress on, move towards a soci- Your support is very valuable and solidarity of action ety of equal opportunities for everyone, regardless of sex- strengthens us all. I thank our Russian and internation- ual orientation and gender identity. You are very important al partners for mutually enriching interaction and joining and you’re not afraid to defend your rights and to become efforts where it is relevant. an example for many of us. You want to change the situation and don’t agree with the injustice you face. My special thanks goes to Nigel Warner (ILGA-Europe), who has been carrying out strategic work at a system I am grateful for your decision not to leave the situation level in defense of LGBT people at the European level, unsolved. Thanks to you I see how more and more LGBT paying considerable attention to Russia. people feel safe, get rid of stereotypes and strive to protect their violated rights. Thanks to you the social position of Strategic Litigation is important and it is a pleasure lesbians, gays, bisexuals and transgender people improves to walk the path with you, moving towards a world every day, despite the ups and downs. without violence and discrimination.

Your examples are important not only for LGBT people, but also for our allies and supporters. Each successful story gives strength and desire to move further to a world of equal opportunities for both LGBT and heterosexual cisgender people. Every story is personal for me. And I express gratitude that you are ready to share it. By moving forward, you give hope to other people that discrimination will disappear and equal rights will become Max Olenichev, Strategic Litigation Program Advisor real for LGBT people. “Coming Out” LGBT Group

Lawyers and attorneys who work with Coming Out are 25th of August 2019 creative people and human rights is a big element of Saint Petersburg, Russia

13 Strategic Litigation: defending rights of LGBT People

Assault after pride in 2017 Photo: David Frenkel

14 ЛГБТ-инициативная группа «Выход» Chapter 1. Hate Crimes

CHAPTER 1 HATE CRIMES

15 Strategic Litigation: defending rights of LGBT People

OUR GOALS COMMITTEE AGAINST TORTURE (2018) • Incidents of violence committed against LGBT* “The Committee is concerned about persistent reports persons and/or LGBT* activists be investigated about lesbians, homosexuals, bisexuals, transgender effectively, including the investigation and people and intersex people who are subjected to violence classification of the motives of homophobic and because of their sexual orientation or gender identity, transphobic hate as aggravating circumstances. including physical assaults and other forms of abuse. • LGBT * people be recognized as a social group, The Committee is also concerned about the number of a motive of hatred against or enmity toward which hate crimes against this group of people. It has increased is considered to be an aggravating circumstance by significantly since an adoption of a federal law prohibiting the Criminal Code of the Russian Federation, and “the promotion of non-traditional sexual relations”. discrimination against which is prohibited by Criminal Code of the Russian Federation and the Code of THE STATE PARTY SHOULD Administrative Offences of the Russian Federation. a) ensure that perpetrators of violent acts and hate crimes committed against individuals because of their sexual orientation or gender identity... are charged with indictments. Investigations and legal prosecutions should be carried out and those responsible should be brought to justice and if their guilt is established, they must be punished; b) Repeal the law prohibiting “propaganda of non- traditional sexual relations”, which provokes stigmatization and prejudice against lesbians, gays, bisexual, transgender and intersex people; с) Provide training for law enforcement and judicial officials, aimed to speak about identification and elimination of hate crimes, including those related to sexual orientation or gender identity”.

Concluding observations, Russian Federation, CAT/C/RUS/CO/6, paragraphs 32 and 33

ACCORDING TO THE OSCE 34% OF HATE ATTACKS IN RUSSIA WERE MOTIVATED BY HATRED AGAINST LGBT* PEOPLE IN 2017.*

16 ЛГБТ-инициативная группа «Выход» Chapter 1. Hate Crimes

THE CONSTITUTIONAL COURT THE CURRENT STATE OF NATIONAL LEGISLATION OF THE RUSSIAN FEDERATION (2014) AND PRACTICE The state should take measures aimed at eliminating The Criminal Code of the Russian Federation possible infringements of the rights and legal interests (point e, part 1, art. 63 – ‘Circumstances Aggravating of individuals based on their sexual orientation, and Punishment’) states: ‘commission of a crime by reason guarantee effective opportunities for the protection of political, ideological, racial, national or religious and restoration of their violated rights based on the hatred or enmity or by reason of hatred or enmity with principle of equal rights before the law and the court. respect to some social group is considered to be an The given constitutional principle, which assumes, aggravating circumstance. inter alia, the inadmissibility of both restricting rights and freedoms and offering advantages based This legal norm is ignored by law enforcement agencies on belonging to one or another social group, under in the process of investigation of criminal cases involving which can be understood groups of individuals of homophobic and transphobic violence. a particular sexual orientation, is concretely defined in the norms of the legislation regulated specific Investigators and judges do not recognize LGBT* as a areas. State and legal protection from discrimination, social group when considering cases; therefore, crimes including that motivated by belonging or non-belonging are not assessed as being committed out of hatred against to a social group, is also ensured by the application LGBT* and do not receive proper legal qualifications. of administrative (article 5.62 of the Administrative

Offence Code of the Russian Federation) and criminal

(point e, part one, article 63 and article 136 of the Criminal Code of the Russian Federation) liability measures.

Decision of 23rd September 2014 No. 24-P of the Constitutional Court of the Russian Federation in its review of the constitutionality of part 1, article 6.21 of the Administrative Offence Code of the Russian Federation in connection with the petition of citizens N.A. Alekseyev, Y.N.

Yevtushenko, and D.A. Isakov

FROM THE REPORT OF THE OMBUDSMAN FOR HUMAN RIGHTS IN ST. PETERSBURG FOR 2017: “The inaction of law enforcement agencies, their refusal to initiate criminal cases and cases of administrative offenses on the facts of aggressive manifestations against members of LGBT community, the courts refusal to take into account hate motives towards a social group with certain sexual orientations as a circumstances aggravating the punishment – all of this reinforces in the aggressors the confidence in their impunity.”

17 Strategic Litigation: defending rights of LGBT People

Case of the attack on been completed and Coming Out is awaiting the adoption “Rainbow Flashmob” of a case decision by the Court. IDAHOT rally FROM THE OBSERVATIONS OF THE AUTHORITIES OF RUSSIA 2012 “In the course of the criminal case investigation, the in- vestigating agencies examined a version of Likhotkin WHAT HAPPENED committing a crime motivated by hatred against homo- On 17 May 2012, Gleb Likhotkin, an activist from a radi- sexual people. However, this version failed to find con- cal religious movement fired a gas pistol at a participant firmation. Likhotkin did not intend to cause any physical of the Rainbow Flashmob. The victim was Boris Roma- harm to the victim. His actions were aimed at gross vi- nov. As a result of the attack, Boris suffered bruises to olation of public order. Motives <...> related to any social the face and chemical burns to both eyes. Gleb Likhotkin group were not established in the actions of Likhotkin was arrested by the police. During his arrest, he shout- <...> From the testimony of G.S. Likhotkin it follows that ed, “Sodomy is a mortal sin!”. he was aiming at and fired into a balloon with «Christ loves men and women equally», which Romanov, the COURT STEPS TAKEN (BEFORE 2016) victim, was holding in his hands”. On November 11, 2013, the Petrogradsky District Court of Saint Petersburg found Gleb Likhotkin guilty of hooliganism using objects used as weapons (point a, part 1, art 213 of the Criminal Code of the Russian Federation). A hate motive was not taken into account. The verdict was appealed to the City Court of St. Petersburg, which dismissed the case due to the amnesty. The criminal did Dmitry Bartenev, attorney not suffer any criminal punishment. “The ECHR has already worked with cases related to However, the attorney of Coming Out succeeded in ob- homophobic attacks on participants of a peaceful taining compensation for non-pecuniary damage: on assembly in defense of LGBT* rights. I expect in this May 25, 2015, the Nevsky District Court ordered Gleb case the Court will remind Russian authorities of the Likhotkin to pay 50,000 rubles to Boris. need to investigate a homophobic motive for the attack. Without this step a complete state protection of gay In July 2014, after the court dismissed the case due to and lesbian rights to freedom of speech is impossible”. the amnesty, attorney of Boris filed a complaint with the European Court of Human Rights. It stated violation of three articles of the Convention for the European Con- vention on Human Rights: article 3 (prohibition of degrading treatment), articles 11 (right to freedom of assembly) and article 14 (prohibition of discrimination).

UPDATE On November 2, 2017, the European Court began to ex- amine the complaint, asking Russian authorities questions about whether the state had provided adequate protection against attacks by private individuals. Also it asked whether the state had conducted an effective investigation into brutal treatment and was it possible to ensure a peaceful public event. At present communication in the case has

18 ЛГБТ-инициативная группа «Выход» Chapter 1. Hate Crimes

Case of the attacks COURT STEPS TAKEN (BEFORE 2016) The victims filed a statement about the attack, and the doc- at St. Petersburg pride rally tors sent information about physical injuries to the police, 2013 but they refused to initiate criminal proceedings. The police concluded that the beatings did take place but were a WHAT HAPPENED “private matter” (which means the burden of proof is on the On June 29, 2015, the pride event took place accompa- victims, without participation by the state prosecutor and nied by yells and slogans of the rally opponents. They without investigation). were throwing eggs, stones and smoke bombs at the participants. The police took no action and then began The refusal to initiate criminal proceedings was reversed to push the demonstrators to the edge of the site and by the public prosecutor. However, after this reversal, pushed them into vans. Four LGBT* activists did not en- no proper investigation on the matter was carried out. ter the bus and left the site. At that moment a group of unidentified menstarted to beat and kick them for sever- In May 2015, victims filed complaints with the European al minutes until the police intervened. Court of Human Rights and the UN Human Rights Commit- tee. In the first complaint (Starov and Others v. Russia The victims were taken to the police department, where (the European Court of Human Rights)), the action partici- they were refused to call an ambulance for a long time, pants appeal to several articles of the Convention: article and then released. They had to draw up reports on alleged 3 (prohibition of degrading treatment), article 8 (right to administrative offenses committed by them (violation of respect for private life), article 11 (right to freedom of the rally rules). Subsequently, all cases of administrative assembly) and article 14 (prohibition of discrimination). offenses were discontinued. The second complaint (Petrova v. Russia (UN Human Rights Committee)) raised the issue of violations of the Interna- tional Covenant on Civil and Political Rights: article 7 (prohibition of degrading treatment) and article 26 (prohibition of discrimination).

UPDATE In November 2017, the European Court of Human Rights communicated “Starov and Others v. Russia” complaint. In 2018 the parties exchanged positions and Coming Out

19 is now waiting for the Court decision for the case.

COMMUNICATION OF A COMPLAINT TO THE ECHR IS AN OFFICIAL MESSAGE TO THE AUTHORITIES OF THE RESPONDENT COUNTRY ABOUT THE COMPLAINT. COMMUNICATION OCCURS AFTER THE COMPLAINT IS ACCEPTED FOR CONSIDERATION. AN ACTIVE STAGE OF LEGAL PROCEEDINGS BEGINS WITH COMMUNICA- TION AND IT SIGNIFICANTLY INCREASES CHANCES OF SUCCESS OF THE CASE.

FROM COMMENTS OF THE RUSSIAN GOVERNMENT ON THE COMPLAINT BEFORE THE EUROPEAN COURT: “... in each case, law enforcement authorities proceeded from the absence of signs of corpus delicti <...>, believing that actions of unidentified persons lacked the motive <...> of hatred or hostility towards a social group, and the attackers had personal hostile relations with the protesters.”

At the same time, the victims stated that they had never seen and did not know the attackers before the incident..

FROM THE MEMORANDUM OF LAWYERS ON THE COMMENTS OF THE GOVERNMENT OF RUSSIA: “the attack on the victims was a direct result of the police’s inability to provide adequate protection from hate-motivated violence for the rally participants. Authorities were aware of possible violence against LGBT activists during the event. <...> However, the police plan to maintain public order did not include any measures to react to possible unlawful actions of counter-demonstrators.” Chapter 1. Hate Crimes

Case of the attacks on “From the comments of Sasha Krik sent to the Committee 07.01.2018 the office of “LaSky” project 2013 “... five years after no criminal case was opened; the applicant was not given a victim status and was not WHAT HAPPENED questioned even as part of a preliminary investigation; On November 3, 2013, a Rainbow Tea Party was held at no persons were identified as the attackers, despite the LaSky office. It was a place to meet for LGBT* and a large number of videos and photos of the incident their friends. LaSky was an HIV and STI prevention proj- on the Internet. <...> ect for homosexual people. These meetings were announced openly on the Internet and took place every It is well known that due to many years of discrimination week. Two masked and armed men of strong physique access to justice for LGBT* people is significantly entered the office. difficult. People in charge refuse to investigate cases of homophobic violence or to take into account the hate Sasha Crick, the meeting participant, saw the men and ran motive, and this fact only exacerbates the problem”. into the room, trying to warn about the danger for people inside. After that, he heard sounds like clicks or snaps and felt pain in his back. The men attacked Dmitry Chizhevsky, who was standing at the office entrance: he was shot in the eye. Sasha was slightly injured. Dmitry underwent several surgeries, but failed to save his eye.

COURT STEPS TAKEN (BEFORE 2016) The police opened a criminal case under the article «hooliganism» and causing grievous bodily harm «on hooligan grounds», but the investigation was suspended. Law enforcement agencies refused to classify the crime as aggravated by a motive against LGBT persons. Since no criminals were found, it was impossible to establish the motives for their actions.

Coming Out attorney appealed to the UN Human Rights Committee, asking to add it to the complaint in the case of the attack at LGBT* pride in 2013 (see earlier).

UPDATE In 2018, the UN Human Rights Committee began consideration of the complaint of Sasha Krik. Currently, the parties have exchanged the case positions and Coming Out is awaiting of the Court decision.

21 Strategic Litigation: defending rights of LGBT People

Case of the attack near UPDATE In April 2017 the attorney of Coming Out filed a com- the metro plaint with the Committee on the Elimination of All 2014 Forms of Discrimination against Women (CEDAW). Saint Petersburg police contacted the victims and WHAT HAPPENED resumed the proceedings immediately after receiving on 20 October 2014, two unidentified men attacked a a complaint by the government of Russia. lesbian couple returning home on the last subway train. The men saw the women hugging on the escalator and 4 years after the attack, an inquiry officer called the followed them; on the street, one of the men attacked women to inspect the incident scene. However the the women while shouting “no LGBT!”, “shitty lesbians!” investigation was not be able to effective after so much and other homophobic insults while the other one time has passed. This is a very common practice in Rus- recorded the attack on his phone camera. Before run- sia in the investigation of hate crimes. ning away, the attacker said he would kill the women if he ever saw them again. In July 2018 Coming Out attorney sent written comments to the UN Committee on the Elimination of Discrimination COURT STEPS TAKEN (BEFORE 2016) against Women regarding the position of the Government On October 21 2014, the women turned to the police, of Russia, which did not see any violations of the applicants but they were refused to open a criminal investigation, rights in the communication submitted to them. allegedly because of the “inability to establish witnesses and eyewitnesses of the attack, as well as the identity The attorney stressed that the Russian authorities of the attackers”. did nothing to conduct a timely effective investigation.

In April 2015, the Moscow District Court of Saint Peters- burg did not recognize the prosecutor’s actions as unlawful, but the appeal to the city court gave a result: in May 2015, the police opened a case. However, the attack was qualified as violence “occurring during a conflict resulting from personal hostilities’, and only one of the women was declared as the victim of the crime. Then the investigation was suspended.

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Max Olenichev, legal adviser to the Strategic Litigation Svetlana Gromova, attorney and representative Program of Coming Out LGBT* initiative group of the victims

“After the adoption of the “propaganda” law in Saint- “The circumstances of the attack, the verbal abuse used by Petersburg, cases of assault and violence against LGBT* the attackers in particular, expressing hatred towards people who publicly demonstrate their relations or wear lesbians, clearly show that the crime was committed on rainbow symbols have increased dramatically. a hate ground for LBT women. Despite this, the authorities did not investigate this most obvious version of the crime. Now it is impossible to imagine that you can kiss a loved one or have a walk holding hands on Nevsky Prospect, They did not conduct operational investigative measures the main street of the city, without fear of violence. in order to verify the involvement of members of homophobic groups operating in Saint Petersburg. In 2017-2019 Coming Out recorded several cases of attacks due to rainbow symbols. The attack against the women occurred after adopting of the so-called law banning the promotion of non-tradi- Andrey was wearing a rainbow badge on his outdoor tional sexual relations among minors. clothes, he was attacked and insulted in the subway. In September 2018 visitors of Queerfest were going The UN Committee on the Elimination of Discrimination home after the event and they were doused with against Women, the UN Human Rights Committee and the “holy water” by young religious fanatics. European Court of Human Rights condemned it as reinforc- ing stigma and prejudice and encouraging homophobia. In January 2019, a supporter of ultra right forces attacked R. in the subway. These attacks do not occur The inability to investigate a hate crime, as well as the because offenders did not like the victims, but because unwillingness to take into account the discriminatory they were “considered” to be LGBT* people. Everyone motive in many other documented attacks on LBT women, can suffer from such actions, therefore it is extremely demonstrates the practical results of such a policy. important that police react to every single incident Homophobic groups promote hate and commit acts of and carry out an effective investigation of hate crimes.” violence with complete impunity.

Therefore as a result of the consideration of our communication to the Committee, we ask to accept recommendations to Russia repealing the law «on the prohibition of propaganda of non-traditional sexual relations». Comprehensive anti-discrimination legislation clearly requires taking into account a homophobic motive as an aggravating circumstance.”

23 Strategic Litigation: defending rights of LGBT People

The case of the attack after the Pride 2017

WHAT HAPPENED On 12 August 2017, after the end of St. Petersburg LGBT pride rally, a group of activists and journalists was attacked Kseniya Mihaylova, lawyer of Coming Out and accompanied by people from “Straight Edge”, an ultra- right youth group. Several protesters suffered from un- “This court decision reflects the state strategy of political known substance sprayed into their eyes by the attackers. homophobia. The court should have taken into account the Three days later, the police opened a criminal case and evidence of a hate motive for committing the crime, but ig- qualified the attack as “battery”. nored them twice instead. It was a group attack and there was a weapon used”. Two journalists and 4 transgender people were recognized as victims. The police refused to consider 4 more transgen- Coming Out is now appealing against the conviction to der people as victims. the higher authorities.

The authorities stated there was no hate motive against LGBT people in the present case and investigated it under “Battery, motivated by hooliganism”. The investigation is over now.

A homophobic group tracked down Pride members who were leaving with LGBT symbols. The accused coordinated with each other and did not attack anyone close to the police. The Neo-Nazis attacked a group of activists with rainbow symbols, having previously shouted “We’ll knife “STRAIGHT EDGE” them on the bridge!” They also advised random passers-by to step back, emphasizing the fact they were interested Participants are mainly from Saint Petersburg and Moscow. in a certain group of people. There are several hundred young people of right-wing beliefs. They are from 17 to 20 years old, they go to the Neither the investigation members, nor the court would gym, promote a sober lifestyle, listen to subcultural music admit the hate motive against LGBT* people, although the victims and witnesses gave all clear evidence. The court close to hardcore. Most of them are right-wing nationalists ignored that one of the victims participated in a human who advocate a healthy lifestyle Eyewitnesses and rights action and she was wearing LGBT* symbols during acquaintances of the attackers on activists and journalists the attack (this can be clearly seen in the video). According point out that “the right-wing ideology of “Straight Edge” to the court, the attack was caused by a personal dislike, group takes precedence over the fight for healthy lifestyle because the activists allegedly cursed and sang songs - and own moral character.” according to the defendant and one of the members of the group who was a witness in the case. In this case, we WWW.FONTANKA.RU/2017/08/14/086/ managed to obtain judgement of conviction. On 13 Decem- ber 2018, a judge of the judicial district №199 sentenced Artem Andreev to a fine of 30 thousand rubl

24 ЛГБТ-инициативная группа «Выход» Chapter 1. Hate Crimes

Case of the bar attack Anton Macintosh, transgender activist and victim

2017 “Max had a rainbow bracelet on his hand. These two individuals loudly and obscenely lamented over the swelling WHAT HAPPENED ranks of faggots, not to mention «the faggoty film festival On 14 September evening, 2017, activists of T-Action “Side by Side” in our city, that’s their breeding nest, we used were assaulted by homophobes at “Killfish” bar in to do them in when I was in the military...” St. Petersburg. Anton Macintosh, Max Nebel and Severyan were celebrating a birthday at the bar when they were noticed by two aggressive men.

Trans*activists were drinking beer at their table, when one of the aggressors approached them. The man insulted the guys and shouted that they were “promoting their perversions”. Kseniya Mihaylova, Coming Out’s lawyer and representative of the victims The aggressor took a metal chair and started to threaten Anton. There were no security guards in the bar, “After the act of decriminalization of battery, it can be con- the bartender called the police. The attacker hit Anton sidered a crime only if there is a hate or hooligan motive. and Severiyan on the head, split Anton’s lip, and tried to Meanwhile, police officers refuse to qualify LGBT crimes strike Max in the eye with a fork. The agressor’s com- as hate-motivated due to sexual orientation, which was panion finally intervened and led his buddy away, tell- obvious in our case. ing the survivors that it had been their own fault since they were “advertising their perversions in public”, that Ineffective investigation of crimes committed against LGBT they “should be doing this at home”. After that, the men people is a result of the government policy. If other people left the bar. were injured, the attack would be qualified as one with hooligan motives. But we do not stop and are trying to The survivors awaited the police at the bar, described influence the police so the attackers would be held to the attackers to the police officers and then went to the account on the basis of evidence. E.R. Two of the survivors were taken to the hospital. Later that evening the survivors reported the assault We went to court twice and unlawful refusals to initiate to the police station and mentioned the homophobic proceedings, which created many barriers for the case hate motive in their reports. consideration, were cancelled by the prosecutor.

Coming Out’s attorney came to the incident scene, collected At the moment there is no adequate mechanism in the evidence, interviewed eyewitnesses and then passed the Russian legal system which could be used to force the necessary statements to the police. The police refused to law enforcement or judicial branch to investigate fully initiate a criminal case, but filed an administrative offense the question of hate motivated actions, even if these case, qualifying the attack as a battery. Currently, lawyers actions resulted in harm to the victims’ health. continue to insist on the initiation of a criminal case under articles 115 (“Intentional infliction of light bodily harm”) or 116 (“Battery”) of the Criminal Code - they allow to take into account the homophobic crime motive.

25 Strategic Litigation: defending rights of LGBT People

Case of the attack “for lipstick” 2018

WHAT HAPPENED On 21 January 2018, Sasha was attacked while he was Sasha Kalm, the victim sitting in a cafe on Dumskaya Street with his friends, in the very center of Saint Petersburg. The attackers broke “I do not define myself through gender, I don’t think about Sasha’s nose and almost knocked out his friend’s eye. this topic at all. Self-expression is important for me. In this The guys faced such a reaction for the first time. The case the man didn’t want his children to see us, “these reason was the appearance of Sasha, he wore bright non humans”, but he started to insult us instead of leaving lipstick. During the attack the offender was shouting and attacked our group. This would not happen if “you look homophobic slogans. like a woman” stopped being humiliating and men didn’t try so hard to keep their masculinity. We need to destroy Patriarchal attitudes are widespread in Russian society patriarchy, not faces”. and according to them only biological women can wear lipstick and makeup. This case shows that people with other than traditional ideas about gender expression, become vulnerable. Attackers can be guided by hatred of people who don’t share their strict ideas of the male and female appearance.

Following recommendations of Coming Out’s lawyer, Alexander recorded the injuries in a medical institution and then went to a police station to initiate a criminal case on the hate motive basis. A week later the police refused to open a criminal case.

The lawyer of Coming Out appealed to the court challenging this ruling. At the time of consideration of the issue in court, the prosecutor’s office reversed the decision to refuse to initiate a criminal case, leading to the court deciding not to consider the complaint. But, as a result of all these actions, the police began verification of our lawyer’s contentions regarding the attack on Al- exander. The process is ongoing.

26 ЛГБТ-инициативная группа «Выход» Chapter 1. Hate Crimes

Galina Ibryanova, attorney and representative Max Olenichev, Strategic Litigation Program Advisor, of the victim “Coming Out” LGBT Group

“Our strategy is to start criminal prosecution of the “Gender self-expression of people in Saint Petersburg attacker, qualifying his actions as committed on the basis becomes a reason for violent actions of passersby more of hatred against LGBT as a social group. The appearance often now. of a person cannot be a cause for violence. Having analyzed the situation it follows that the attacker was guided by One of its main reasons is spreading of homophobia a hate motive, but the police is not conducting an effective and transphobia in Russia. investigation, despite our appeals. In the current context, we are doing everything possible so that the police would Unfortunately, stereotyped ideas of what is male pay attention to this assaultive act and take all possible and female are widely used by people. And any doubt steps to determine the guilty and bringing him to the statu- about these being set in stone is seen as a challenge which tory responsibility”. sometimes leads to violence.

But in the modern society, which supports principles of hu- manism and diversity, all people can express themselves how they want, unless it leads to violence towards other people.

Today, every person can define their own “masculine” and “feminine” traits and there should be no notions of “a real man” or “a real woman”.

Stereotypes and prejudice can be dangerous and lead to discrimination and violence towards any people who do not fit into someone’s box. Coming Out defends rights of people to freedom of gender expression and diversity of identities.”

27 Strategic Litigation: defending rights of LGBT People

Case of the attack in networks before and after the attack. At first I thought there’s a connection with the attack, but after watching the center of St. Petersburg the video of the fight, I came to conclusion that violence 2018 became possible only because the attackers “considered” me as a person of LGBT community. WHAT HAPPENED At the end of April 2018, a gay activist Boris Konakov The next day after the attack a police officer called me. was attacked on Bankovskiy Bridge, in the center of He tried to convince me to do nothing about the attack, Saint Petersburg. After the attack he lost consciousness, asked me not to go to the police and not to demand the the attackers fled the scene and did not call an ambu- case investigation. I took a different decision and asked lance. The aggressors broke Boris jaw and the lower Coming Out to provide me some legal support. wall of the right eye orbit. After a while passers-by called a medical aid team, which took Boris to the I have been working with a psychologist for several Mariinsky hospital. Its specialists informed police that months because of the attack. People who have com- the victim had been injured as a result of falling in the mitted violence must be punished. And police should street. Boris subsequently had to undergo an urgent perform an effective criminal investigation.” plastic surgery on the jaw and fundus.

Later Coming Out’s lawyers filed a criminal complaint based on the fact of the attack, pointing out the homophobic motive. They managed to restore the chronology of the attack by using surveillance cameras and identifying the attackers. Max Olenichev, Strategic Litigation Program Advisor, “Coming Out” LGBT Group Currently medical professionals qualify the attack as harm of moderate severity, which can lead to impris- “Introducing of the “gay propaganda law” resulted onment for up to 5 years. The police was presented all in violence motivated by homophobia and transphobia. necessary documents, but the question of opening a Physical security of LGBT people who want to experience criminal case has not been resolved. The police is now an open lifestyle is questionable nowadays. Many conducting additional checks to identify the attackers. aggressors follow stereotypes and phobias spread by conservative supporters of so-called “traditional values». They choose violent actions instead of discussions and do harm to people who are different. Strategic litigation program at “Coming Out” is aimed at changing the practice of ineffective police investigations of attacks on LGBT people. Boris Konakov, the victim It’s not easy to do, but every attack presents the police “I really hope for a successful case investigation. with the opportunity to investigate the incident and the It can be a good example for those who attack aggressor’s motives.” a person. I’m convinced you should not beat people.

When I woke up after the attack at the maxillofacial surgery hospital department, I did not recognize the place. There were policemen all around and I had a panic attack. I was very scared and did not understand anything. I received many homophobic comments on social

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Case of the attack on foreign tourists 2018

WHAT HAPPENED During 2018 World Cup in Saint Petersburg, two tourists Max Olenichev, Strategic Litigation Program Advisor, from France were attacked. Late night of June 9, D. and “Coming Out” LGBT Group L. called an Uber to go from a gay club to their hotel. “The criminals took advantage of vulnerability of foreign Two people were sitting in the black Lada: Ismet citizens who were in the city for the very first time. At- Gaidarov was a driver and his friend Rasul Magomedov tacks during the World Cup in St. Petersburg were rare. was in the passenger seat. During this period the police worked harder than usu- The car should have arrived to a hotel on the 14th Line al. They detained the criminals almost immediately and of Vasilievsky Island, but it came to Morskaya Embank- obtained an arrest warrant through the court. Now we ment instead. The tourists realized it was the wrong know that they can work efficiently if there is enough address and got out of the car. D. photographed the li- motivation. The hate motive was not taken into account, cense plate to complain to the Uber service. but the punishment is adequate” says Max Olenichev, advisor of Coming Out. The taxi spun around and headed after the men. The driver and his friend jumped out of the car and ran At the appeal stage, the sentence was reduced by two after the tourists. Ismet Gaidarov grabbed the phone months. On October 24 2019, the City Court of Saint Pe- from hands of L., and the frightened man took out his tersburg settled the case: Rasul Magomedov was given wallet and gave Ismet 5500 rubles. At the same time 9 years and 8 months of imprisonment in a maximum Rasul caught D., hit him in the jaw and in the face, took security penal colony and three and a half years for his phone, a wallet with money and documents. After that Ismet Gaidarov. the attackers got into the car and drove away. Later they explained their actions by the fact that tourists had not paid for the trip (according to L., the trip was paid by card).

L. found D. sitting on the sidewalk with a bleeding head and called both police and ambulance. Doctors diagnosed an open brain injury with several fractures. According to the expert’s opinion, this injury is regarded as serious harm to health.

Coming Out started to work with the case at the investigation stage. The attackers were charged with assault (Art 162 of the Criminal Code of the Russian Federation) and robbery (Art 161 of the Criminal Code of the Russian Fed- eration). On February 12 2019, the Vasileostrovsky District Court sentenced Rasul Magomedov to ten years of imprisonment in a maximum security penal colony (paragraph B, part 4, Article 162) and Ismet Gaidarov (paragraph A, part 2, Article 161 of the Criminal Code of the Russian Federa- tion) - to three and a half years in a penal colony.

29 Strategic Litigation: defending rights of LGBT People

State Duma deputy Vitaly Milonov at the opening of the Side by Side 2018 film festival Photo: Regina Bakirova

30 ЛГБТ-инициативная группа «Выход» Chapter 1. Hate Crimes

CHAPTER 2 HATE SPEECH

31 Strategic Litigation: defending rights of LGBT People

OUR GOAL “In today’s cyber world and social media, incitement • Law enforcement officials and courts take effective to hatred and violence driven by hate speech relating measures (including implementation of provisions to sexual orientation and gender identity has an on civil, administrative and criminal offences) to exponential reach, spinning the web of violations combat all forms of expression, including in the in real time and into the future.” media and on the Internet, which may be reasonably understood as likely to produce the effect of inciting, P.39 of the report of the Independent Expert on protec- spreading, or promoting hatred or other forms of tion against violence and discrimination based on sexual discrimination against LGBT persons. orientation and gender identity, A/HRC/35/36, 2017.

32 ЛГБТ-инициативная группа «Выход» Chapter 2. Hate Speech

The Independent Expert recommends that States take Victor Madrigal-Borloz, A/HRC/38/43, 2018. all measures necessary to prevent, investigate and “The European Commission recommends that the punish acts of violence and discrimination based on governments of member States: take appropriate sexual orientation or gender identity perpetrated by and effective action against the use, in a public the State and non-State actors, regardless of whether context, of hate speech which is intended or can the violence was committed in the public or the private reasonably be expected to incite acts of violence, sphere, and provide reparations to victims of the said intimidation, hostility or discrimination against those violence and discrimination. targeted by it through the use of the criminal law provided that no other, less restrictive, measure would In addition, States should enact legislation on hate be effective and the right to freedom of expression crimes that defines homophobia, misogyny, biphobia and opinion is respected, and accordingly: and transphobia as aggravating factors for the purposes of sentencing. The Independent Expert also encourages • ensure the effective participation of those target- States to adopt legislation in relation to hate speech ed by hate speech in the relevant proceedings; on the grounds of sexual orientation or gender identity, • provide penalties for these offences that take ac- and to hold to account those responsible, including po- count both of the serious consequences of hate litical or religious leaders. speech and the need for a proportionate response; • monitor the effectiveness of the investigation of Paragraphs 92 and 93 of the report of the Independent complaints and the prosecution of offenders with Expert on protection against violence and discrimination a view to enhancing both of these; g. ensure effec- based on sexual orientation and gender identity, tive co-operation/co-ordination between police and prosecution authorities.

P.10 of the recommendations of the European Commis- sion against Racism and Intolerance (ECRI).

33 Strategic Litigation: defending rights of LGBT People

Case of Vitaly Milonov’s insults Case regarding Vitaly Milonov’s at the opening of Queerfest interview in Fontanka 2013 2013

WHAT HAPPENED WHAT HAPPENED On 19 September 2013, Vitaly Milonov (then a city par- In November 2013, immediately following the attack on liament’s deputy, today deputy of the State Duma) came the LaSky office (see above), Vitaly Milonov was inter- to the opening of the International human rights festival viewed by “Fontanka”, a popular media outlet in Saint Queerfest and publicly insulted the festival’s partici- Petersburg. The deputy made a series of homophobic pants and volunteers by calling them “animals,” “AIDSy,” statements. In particular, he said that the attack had “fags,” etc. been staged by LGBT* activists themselves. Sasha Krik, who was a victim of the attack in question, appealed When K., a lawyer of “Coming Out” LGBT Group, called the to the Investigative Committee with a request to institute police, Milonov verbally attacked her, calling her a snitch criminal proceedings against MP Milonov for hate speech. and then using the Russian derogatory term for “dyke” (“fingerer”) twice. The incident was captured on video and COURT STEPS TAKEN heard and witnessed by many people. The investigators sought expert opinions on the case. Some of the experts confirmed that Milonov’s interview COURT STEPS TAKEN contained hate speech against the LGBT* people as a K. reported the incident to the prosecutor’s office, seeking social group, while some others argued that the LGBT* administrative proceedings against the MP for the insult community cannot be defined as a social group. The lat- and discrimination. Her request was denied on the grounds ter opinion was used to deny the request to open crimi- that Milonov’s impunity as a member of parliament could nal proceedings. A court appeal of the refusal to initiate not be waived. criminal proceedings brought no results.

She tried to appeal the decision, but without success. K. In summer 2015 the Kirovsky District Court dismissed also attempted to sue Milonov, requesting that a district Sasha’s civil action on the violation of his right to privacy court find a violation of her right to privacy and non- and freedom from discrimination and degrading treat- discrimination and award non-pecuniary damages. How- ment, which included demands for compensation for ever, both the first instance and the courts of appeal de- non-pecuniary damages. nied her claims. The lawyer made a complaint to the UN Committee on the Elimination of Discrimination against UPDATE Wome regarding the violations of the UN Convention on In 2017, Sasha appealed to the European Court of Human the Human Rights. (For more information see “Strategic Rights (complaint № 3465/2017), where he indicated a Litigation as a Method for Defending and Advancing the violation of his right to respect for private and family life Rights of LGBT People: the Experience of “Coming Out” and the prohibition of discrimination. LGBT Group in Saint Petersburg (2012-2015)).

UPDATE In 2016 the UN Committee on the Elimination of Discrimi- nation against Women regarding sent a complaint of K. to the Russian authorities. The consideration of the case is now being proceeded in the Committee.

34 ЛГБТ-инициативная группа «Выход» Chapter 2. Hate Speech

FROM THE COMMENTS OF THE RUSSIAN AUTHORITIES Case regarding the hate “People with a homosexual orientation cannot be speech used by Vitaly Milonov defined as a social group, and verbal expressions used in the interview with Milonov do not express any humili- at a demonstration ating characteristics and negative attitudes towards on the 1st of May any social group or individuals as its representatives. The interviewee’s comments amount to his caring about 2015 protecting the moral traditional values with the younger WHAT HAPPENED generations, which is natural for a society formed in part On May 1, 2015, a general demonstration took place in under the influence of Orthodox Christianity – the domi- downtown Saint Petersburg. There was a group of LGBT nant religion of the state.” activists among the participants. Deputy Vitaly Milonov approached the group several times, shouting homophobic At the moment the communication on the case is insults: “perverts”, “fingerers”, “pigs”, and “dykes”, completed and Coming Out is awaiting a court decision. and “pedophiles” for many times. This will be the first decision on our complaint to the European Court of Human Rights on hate speech Then he said “They ought to be crushed by tanks. They ought to be crushed by tractors!” The full speech is recorded in a NevexTV video report entitled ‘Milonov and the Fifth Column – Saint Petersburg, 1 May 2015.

COURT STEPS TAKEN Following the incident, a group of eight LGBT activists turned to law enforcement authorities and the district court with demands that the deputy be brought to criminal, administrative, and civil liability. Initiation of criminal and administrative cases was denied, and the civil case is currently under examination at a district court.

UPDATE In 2015-2017 Coming Out’s applicants went through all the national instances that refused to satisfy the civil lawsuits. In December 2017 LGBT* activists filed a complaint with the European Court of Human Rights. They indicated inter- ference with their right to freedom of expression opinions (Article 10 of the Convention) and protection against discrimination (Article 14 of the Convention). It has been registered and is awaiting consideration.

35 Strategic Litigation: defending rights of LGBT People

REN TV case EXTRACT FROM THE LAWSUIT 2017 “failure to give me the right to respond violates my right to freedom of speech, its implementation procedure i WHAT HAPPENED s provided by the Federal Law “On Mass Media”. It also On 10 February 2017 Russian TV Channel REN TV aired a violates my right to freedom of assembly, since my TV program named “Special Project Gay Over. Who pays participation in a public action as a LGBT* parent was for the rainbow rebellion?” The program was made in the given unreasonable, negative comments, accompanied documentary television film genre. The film was dedicated by false accusations without the right to reply and to activity of LGBT* movement members, their motives, violates my right to respect for private life, since goals of LGBT* activists and the financing of their activities. I was deprived of the opportunity to protect my family, Throughout the show, a question text was shown including my son, in the manner prescribed by law.” “Who pays for rainbow rebellion?” The general meaning of the film was “LGBT* people act in the interests of glob- Considered in August 2018, the complaint of the appli- al business” and LGBT* activists crave for inequality to re- cant hasn’t brought any results.The lawyer of Coming ceive some “additional benefits”. The information, shared Out is now preparing a cassation complaint against the in the film, the ratings expressed in the offscreen text and judicial acts that have taken place. the opinions of people shown in the movie force the viewer to make the following conclusions: the goal of LGBT activ- ism is not to protect the interests of lesbians, gays, bisexuals and transgender people, but to ensure the interests of transnational corporations and that participation in all actions is paid for by the sponsors.

Nina Sozaeva, one of the leaders of the “Parents’ Club”, which unites parents of lesbian, gay, bisexual and transgender people, with the support of Coming Out, requested that REN TV publish her video-response (1,5 minutes long), shot by a professional operator. In the video she contests the theses of the program, which affect her as a parent of an LGBT* person. Moreover, Nina Sozaeva was shown in the program amongst other participants of the LGBT rallies; at one of the rallies she was holding a poster “Our children have a right to be happy.”

REN TV did not send any response to the appeal and Nina Sozaeva appealed to the Simonovsky District Court of Mos- cow, which dismissed the lawsuit.

RUSSIAN LEGISLATION ON THE MASS MEDIA GUARANTEES EVERYONE WHOSE RIGHTS AND LEGITIMATE INTERESTS ARE AFFECTED BY THE TV PROGRAM, THE RIGHT OF ANSWER (COMMENT, REPLY) IN THE SAME MEDIA AND BEING SHOWN IN THE NEXT PROGRAM.

36 ЛГБТ-инициативная группа «Выход» Chapter 2. Hate Speech

Nina Sozaeva, a plaintiff, one of the leaders of the “Parents’ Club”, speaking on behalf of parents of LGBT*

“As parents of LGBT* children, we say that we are fighting for the rights of our children and LGBT Russia in general, at the call of our hearts. Our children also have the right to happiness. Homosexuality is not a pathology or result of propaganda, as such programs are trying to convince society..

We are fighting for the rights of LGBT* people in Russia because we know about hate crimes, dismissals due to being LGBT*, physical and sexual violence in the streets and in families and suicides of LGBT* teenagers.

We are sure that no one should be limited in rights, beaten, raped or killed just because they love a person of the same sex. We are not talking about any special rights, but about the basic right of people to life without discrimination.

We know from experience that the hatred from television leads to real violence and murder. We want safety for our children. Taking action is our only way to resist the incitement of hostility to LGBT* people and their families.”

A CASSATION APPEAL Is a complaint about the trial itself. The court of this instance does not consider the case on the merits, but assesses the legality of the decision of the previous instance.

37 Strategic Litigation: defending rights of LGBT People

Case in defense of the Side WHAT’S WRONG WITH REN-TV NEWS REPORT? 1. Quote from the report: “An organization officially by Side LGBT Film Festival recognized as a foreign agent by court” – about 2018 the film festival. It’s a lie. Although “Side by Side” was recognized as a “foreign agent” in 2013, WHAT HAPPENED the decision was cancelled by the Saint Peters- In October 2018, REN-TV channel released a ten-minute burg City Court. story about the festival “Side by Side: a foreign and 2. Quote from the report: “This is a fragment of the political trace of the LGBT* Film Festival”. The organizers discussion – whether children and adolescents were accused of being recognized as “foreign agents”, should engage in polyamorous sexual relations: engaged in political activities and engaged in polyamory it’s when there are more than “gay propaganda”. two partners.” This is also a lie. There was nothing like that in the The festival organizers turned to the Public Board on the festival program. Moreover all Side by Side events Press Complaints. Lawyers of Coming Out were are held under the 18+ sign and are closed to representing interests of Side by Side during the trial. minors. The authors of the appeal to the Board believe that a true purpose of the phrase was to The authors of the appeal asked the Board to admit the accuse the film festival of so-called“ gay propaganda.” television program grossly violates the norms of jour- 3. Quote from the report: “Many experts agree: this nalistic ethics and to draw the attention of REN-TV attempt with heating up public interest and trying channel leaders. They also offered to familiarize to start a public debate on a sensitive topic is Roskomnadzor with its decision and to recommend nothing more than Overton’s classic window – journalism faculties to discuss it with students. a technique when they try to feel people’s attitude to the problem in the beginning and then it is completely brought into the political wicket.” This is actually a charge of a political activity and the film festival does not do this at all. At the beginning of the video the host spoke about political processes in the Western Europe and the United States However, REN TV journalists apparently didn’t bother to read the Side by Side film program. The festival presents films from all 5 continents, and not just from Western Europe and the USA.

38 ЛГБТ-инициативная группа «Выход» Chapter 2. Hate Speech

The Board considered the complaint and published a decision on June 14 2019, which concluded that the news story authors used Side by Side LGBT film festival as an excuse to pursue goals that have “nothing to do with informational or educational.” The fact that the festival was called a foreign agent on air was recognized as a «professional forgery» by experts.

FROM THE BOARD DECISION Gulya Sultanova, the organizer of the LGBT film festival “Ren TV company once again demonstrated a shameful “Side by Side”: attitude towards Russian human rights defenders and a consistent policy of presenting them as morally flawed and “Attacks from homophobic mass media happen regularly, pursuing goals and interests that diverge from the Russian but this time we decided to start fighting and unite some society. The Board finds this fact self-evident and not competent journalistic institutions that could make an requiring a “write-up. […] The Board notes with regret the unbiased opinion of a professional board. We are pleased fact that this TV company chose as its basis a consistently with the result, which fully confirms our point of view: repressive, radical anti-human rights policy.” such “reports” have nothing to do with the news.

It’s nothing more than a bunch of information trash dumped with Trump, events in Ukraine, refugees and Mark Rudinstein is like a cherry on top. I feel shame for all those involved in the tv report.”

39 Rainbow flash mob on the Champ of Mars 2017 Photo: Dmitry Musolin CHAPTER 3 THE LAW BANNING “PROPAGANDA OF HOMOSEXUALITY” Strategic Litigation: defending rights of LGBT People

OUR GOALS HUMAN RIGHTS COMMITTEE (2015) • To restrict the application of the federal law on the pro- The Committee is concerned that the laws adopted hibition of “propaganda of homosexuality” in such a at the regional and federal levels banning “promotion way that it would not interfere with holding peaceful of non-traditional sexual relations to minors”, assemblies in support of LGBT* rights, with the realiza- although upheld by the Constitutional Court (rulings tion of fundamental rights and freedoms of LGBT* peo- No. 151-O-O of 19 January 2010 and No. 24-P of 23 ple, as well as with activities of organizations, groups September 2014), exacerbate the negative stereotypes and individual experts aimed at supporting LGBT* peo- against LGBT individuals and represent a disproportion- ple and adolescents. ate restriction of their rights under the Covenant. • To implement the ruling of the European Court of Human Rights “Bayev and Others v. Russia” The State party should clearly and officially state that of June 20, 2017. it does not tolerate any form of social stigmatization of homosexuality, bisexuality or transexuality, or hate COMMITTEE ON THE RIGHTS OF THE CHILD (2014) speech, discrimination or violence against persons “The Committee is concerned at the recent legislation based on their sexual orientation or gender identity. of the State party prohibiting “propaganda of unconven- tional sexual relationships”, generally intended protect It should also: repeal laws banning the “promotion children, but which encourages the stigmatization of non-traditional sexual relations to minors” adopted of and discrimination against lesbian, gay, bisexual, at the regional and federal levels. transgender and intersex (LGBTI) persons, including children, and children from LGBTI families. Concluding comments, the Russian Federation, CCPR/C/RUS/CO/7, paragraph 10. The Committee is particularly concerned that the vague definitions of propaganda used lead to the targeting and COMMITTEE AGAINST TORTURE (2018) ongoing persecution of the country’s LGBTI community, The Committee is also concerned at reports that the including through abuse and violence, in particular hate crimes against such persons have significantly against underage LGBTI-rights activists. increased since the introduction of the federal law prohibiting “propaganda of non-traditional sexual rela- The Committee recommends that the State party repeal tions”. The State party should repeal the law prohibiting its laws prohibiting propaganda of homosexuality.” “propaganda of non-traditional sexual relations” which promotes stigma and prejudice against lesbian, gay, Concluding Observations, Russian Federation, bisexual, transgender and intersex persons. CRC/C/RUS/CO/4-5, paragraphs 24–25 Concluding comments, the Russian Federation, CAT/C/RUS/CO/6, paragraphs 32-33

42 ЛГБТ-инициативная группа «Выход» Chapter 3. The law banning “propaganda of homosexuality”

CONSTITUTIONAL COURT that is, it is not aimed towards the formation of prefer- OF THE RUSSIAN FEDERATION (2014) ences connected to the choice of a non-traditional form of sexual identity, and it ensures an individualized “In the Russian Federation, in the context of a demo- approach, taking into account the specificities cratic society, questions related to sexual self-identi- of the psychological and physiological development fication are not excluded from public discussion, of children of different age groups and the character of and citizens, including those whose sexual orientation the specific question to be covered – it can be carried differs from the accepted norm, cannot be stripped out with the involvement of experts (pedagogues, of the opportunity to, in defense of their rights and medics, and psychologists).” legal interests or the rights and legal interests of other individuals (social groups), use all legal means Decision of 23 September 2014 No. 24-P of the Constitu- of drawing public attention to available evidence tional Court of the Russian Federation in its review of the of violations of these rights. This includes through constitutionality of part 1, article 6.21 of the Administrative the organization of public meetings and the use Offence Code of the Russian Federation in connection of mass media. with the petition of citizens N.A. Alekseyev, Y.N. Yevtushenko, and D.A. Isakov. This being said, the promulgation by an individual of his convictions and preferences regarding sexual orientation and concrete forms of sexual relations must not impinge on the dignity of other persons and call into doubt the public morality as it is understood in Russian society, as otherwise would be contrary to the fundamentals of law and order.

The goal that was pursued by the federal legislator in the establishment of the given norm [which bans propaganda] was to protect children from the influence of information capable of pushing them towards non-traditional sexual relations, adherence to which hinders the creation of the family as it is traditionally understood in Russia and expressed in the Constitu- tion of the Russian Federation.

The ban is on the propaganda of non-traditional sexual relations, which itself is an activity aimed at the purposeful and uncontrolled dissemination of information capable of harming the health and moral and spiritual development – including by forming misconceptions about the social equivalence of traditional and non-traditional sexual orientations – of minors, who, by virtue of their age alone, cannot independently critically evaluate this information.

The ban does not preclude the submission of corre- sponding information in a neutral (educational, ar- tistic, or historical) context. This kind of passage of information, if it is without any signs of propaganda –

43 Strategic Litigation: defending rights of LGBT People

STATE OF NATIONAL LEGISLATION AND PRACTICE that a ban on “propaganda” does not mean a ban on Saint Petersburg became one of the first regions holding public events in support of LGBT rights, as well of Russia, where the so-called “promotion of homosex- as other public discussions of sexual orientation issues uality among minors” was banned. In 2012 the regional in practice it’s being used to limit LGBT rights. The law legislation introduced an administrative rule according is often used either to justify a complete ban on holding to which “public actions aimed at promoting sodomy, actions or to cessation of already begun rallies. lesbianism, bisexualism, transgenderness among minors (activities for the targeted and uncontrolled The law is also applied to restrict freedom of expression, dissemination of information in a publicly accessible freedom of assembly, the right to respect for private and way, capable of harming the health, moral and spiritual family life of LGBT* people. It leads to a ban on holding development of minors, including forming distorted public events, blocking information on the Internet ideas about the social equivalence of traditional and (including for LGBT* teenagers), interfering with the non-traditional marital relations), are punishable by an right to bring up children in case of parents’ divorce, administrative fine”. Article 7_1 of the Saint Petersburg dismissal of LGBT* people from work, other forms of Law “On Administrative Offenses in St. Petersburg”. discrimination. In 5 years of its existence this federal law has contributed a lot to the spread of conservative Two years later, the regional ban on “propaganda” was values and stigmatization of LGBT+ people not only abrogated, since the federal law banning the “promotion of at the state level, but also in the sphere of private life. homosexuality” came into legal force on June 30, 2013 (Federal Law N 135-FZ dated June 29, 2013; Article 6.21 During the last years LGBT initiative group Coming Out of the Russian Federation Administrative Offence Code). records hundreds of violations of the rights of LGBT* It put LGBT* people in an unequal position compared people, violence and discrimination in Saint Petersburg. to other Russian citizens and enshrined discrimination Number of expressions of violence has increased in of LGBT* people at the statutory level. recent years. According to Coming Out, there are much more cases, because not all the victims are ready to Formally, the law does not directly address issues of state incidents of restriction of their rights due to stigma gender identity, but it acts as a means of stigmatization and widespread social prejudice. and discrimination of transgender people, therefore the LGBT * initiative group Coming Out proceeds from the Because of the law banning “the propaganda of homo- fact that this law discriminates against LGBT* people sexuality”, Russia is ranked 46 out of 49 in the LGBT * on the basis of sexual orientation and gender identity. rights rating, according to the Rainbow Index, compiled annually by ILGA-Europe (www.rainbow-europe.org/ The law passed as a part of the implementation of country-ranking#). The situation is worse in countries “traditional values” concept. The state presumes that like Armenia, Azerbaijan and Turkey. sexual orientation and /or gender identity can be imposed on a minor. For instance any child is born a priori On 20 June 2017 the European Court of Human Rights heterosexual and than wants to become a lesbian, gay, passed a ruling in the case of “Bayev and others bisexual, transgender (or other identity different from v. Russia”. It recognized that existence of the laws on cisgender) only as a result of receiving information banning “the propaganda of homosexuality” discriminate about LGBT* people. against LGBT people in Russia. Russia appealed to Grand Chamber of the Court with a request to recon- The law “on the prohibition of propaganda” was the sider the decision, but this request was rejected and on start of the approval of the homophobic propaganda in 14 November 2017 the decision of the Court entered Russian society. into force. Formally Russia should apply its position but in practice it tries to ignore the conclusions of the Court Despite the fact that both the Constitutional Court of and continues to support the policy of discrimination Russia, as well as the Supreme Court of Russia stressed against LGBT+ people.

44 ЛГБТ-инициативная группа «Выход» Chapter 3. The law banning “propaganda of homosexuality”

Coming Out along with the Russian LGBT Network and ILGA Europe, participated in the consideration of the case by the European Court as a “friend of the Court”, prepared a conclusion and argued the inconsistency of the federal law “on the prohibition of propaganda of homosexuality” with European standards. Dmitry Bartenev, the applicants’ lawyer

“The main result of the European Court of Human Rights ruling is understanding that laws prohibiting the propaganda of homosexual relations have no place in the European system of values. No reference to the interests of children can justify application or existence of such laws. ECHR has clearly stated that banning of propaganda of non-traditional sexual relations cannot be justified by moral considerations or the protection of children, such a ban is only aimed at strengthening homophobia and negative prejudices in society regarding LGBT. This is directly contrary to the obligations of Russia in the Council of Europe. “

THE LAW PROHIBITS SPREADING OF INFORMATION AIMED TO BUILD NON- TRADITIONAL SEXUAL IDEAS AMONG MINORS, TO SHOW ATTRACTIVENESS OF NON-TRADITIONAL SEXUAL RELATIONSHIPS, TO GIVE A DISTORTED VIEW OF THE SOCIAL EQUIVALENCE OF TRADITIONAL AND NON-TRADITIONAL SEXUAL RELATIONSHIPS OR TO IMPOSE INFORMATION ABOUT NON-TRADITIONAL SEXUAL RELATIONSHIPS THAT CAN AROUSE INTEREST IN SUCH RELATIONSHIPS.

45 Strategic Litigation: defending rights of LGBT People

arguments of the Russian authorities). It also turned out to be impossible to provide evidence that sexual orientation or identity can be changed under the influence of external causes.

Moreover the Court rejected the argument of the Russian Max Olenichev, Strategic Litigation Program Advisor, authorities that adolescents should not receive informa- “Coming Out” LGBT Group tion about homosexuality.

“The European Court of Human Rights has concluded In my opinion the main conclusion of the ECtHR about that the law on the“ prohibition of propaganda” fails working with adolescents is that the laws on “prohibiting to meet the spirit of the Convention. The court recalled: propaganda” should not exist. They violate the right of there is a clear European consensus regarding the citizens to express their opinions and information about recognition of the rights of individuals to openly identify homosexuality should be distributed freely if, as in the themselves as LGBT, so the arguments of the govern- case of heterosexual relationships is not related to ment for the protection of morality cannot be taken pornography and pedophilia, which has already been into account. prohibited by existing legislation long ago.

The essence of the Court’s decision is that the “prohi- Adolescents have the right to receive information about bition of propaganda” laws are not intended to protect various aspects of same-sex relationships, including morality and they are counterproductive to protect the questions of emotional or loving affection, LGBT families health and rights of others. These laws are widely and others. However, as long as there is Russian legisla- applied in Russia and the terminology used by them tion declaring sharing of such information as a violation of is not clearly defined. Therefore the provisions of the the law, there are risks of administrative liability in Russia. laws are used “for abuse.” Therefore LGBT community has the right to demand the The court stressed that “by adopting such laws, the repeal of the homophobic law, relying on the position authorities increase stigma and prejudice and encourage of the ECHR in the case of “Bayev and others v. Russia” homophobia, which is incompatible with the concepts of and to spread information about homosexuality (based equality, pluralism and tolerance of a democratic society.” on the decision of the ECHR), taking into account risks of the current situation”. In addition, legislation banning “non-traditional sexual relations propaganda” indicates the inferiority of same- sex relations in comparison with the relations of people of the opposite sex and it’s unacceptable according to the Court. The law encourages heterosexual majority prejudice against the homosexual minority. The Court rejected a conservative view of same-sex relationships. Relationships can not be narrowed down to the issue of sexual practices. It is necessary to consider same-sex relations widely: emotional and other attachments, family relationships, expression feelings and any other relationships between people.

During the proceedings in the Court, the Government failed to explain the mechanism of how a minor can be involved in a “homosexual lifestyle” (this was one of the

46 ЛГБТ-инициативная группа «Выход» Chapter 3. The law banning “propaganda of homosexuality”

The Committee of Ministers of the Council of Europe monitors Russia’s implementation of this decision and Coming Out and ILGA-Europe provide the Committee with facts about the application of the law in Russia after the Court makes a decision. They also offer specific recommendations aimed at repealing the law or minimizing its effect.

ON DECEMBER 4 – 6 2018, THE COMMITTEE OF MINISTERS, HAVING EXAMINED THE INFORMATION RECEIVED FROM THE STATE AND NON-GOVERNMENTAL ORGANIZATIONS, RECOMMENDED THAT RUSSIA SHOULD REPEAL THE LAW “ON THE PROHIBITION OF THE PROMOTION OF HOMOSEXUALITY” OR BRING IT INTO LINE WITH THE REQUIREMENTS OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS.

47 Strategic Litigation: defending rights of LGBT People

International Transgender COURT STEPS TAKEN The refusals to approve these events were appealed Day of Visibility picket ban in courts, but the court sessions were held after the 2013 planned date of the pickets. In only one court was the refusal deemed partially unsubstantiated. In 2014 Ruslan WHAT HAPPENED Savolainen appealed to European Court of Human Rights On 31 March 2013, the International Transgender Day and Committee on Human Rights of Visibility, a group of LGBT* activists intended to hold a picket in Saint Petersburg. 1. Complaint to the European Court of Human Rights against the Administration of the Moscow District. Activist Ruslan Savolainen filed two notifications about The applicant seeks a declaration from the Court the picket: to the Administration of the Moskovsky that Articles 11 (freedom of peaceful assembly) and district of Saint Petersburg - to hold a picket 14 (prohibition of discrimination) of the Convention on Moscow Square (at the monument of Lenin), and have been violated. to the Committee on Legality - to hold a picket in the UPDATE city center on Pionerskaya Square (at monument In 2018 the ECHR communicated the complaint, A. S. Griboedov). having decided to consider the violation of obligations by Russia under Article 11 of the Convention (freedom In each case, the authorities refused to approve the events. of peaceful assembly) and refused to consider other vi- The majority of the refusals were based on formalities, but olations. The ECHR recommended that the Government the administration of the Moskovsky district cited the ban of the Russian Federation acknowledge the violation on ‘propagandizing transgenderism among minors’, which and offer the amount of compensation. This suggests was in effect in the city. Apprehensive about being arrested that the ECHR considers the complaint in a “simplified for holding a picket without proper approval, the activists manner”, understanding the situation with the exercise chose not to host their event. of the right to freedom of assembly in Russia. We are now awaiting the decision of the Court.

2. By addressing to The United Nations Human Rights Committee, the applicant asks to recognize the violation of the International Covenant on Civil and Political Rights: Article 19 (the right to freedom of opinion and expression), Article 21 (the right to freedom of peaceful assembly) and Article 26 (equality before the law). UPDATE In 2017 the message of Ruslan Savolainen was communicated to the Government of Russia, which refused to recognize the violation of freedom of assembly. In response the lawyer sent comments on the position of the Government. Coming Out is expecting the adoption of the position regarding the communication by the UN Human Rights Committee.

48 ЛГБТ-инициативная группа «Выход» Chapter 3. The law banning “propaganda of homosexuality”

Svetlana Gromova, representative of Ruslan Savolainen to the UN Human Rights Committee, attorney

“The motivation of the St. Petersburg City Court regarding the content and objectives of the picket reveals the true discriminatory purpose of refusing. Its goal is to make gender minorities invisible to society and to deprive people of public attention.

The court referred to the prohibition of “promoting homosexuality and transgenderness among minors” law. This language reveals a prejudice against sexual and gender minorities.

The refusal to agree on a picket in the city center was based on negative stereotypes regarding transgender people and other gender minorities, and therefore was discriminatory and not necessary in a democratic society.”

49 Strategic Litigation: defending rights of LGBT People

Violation of the right to On 26 January 2018 the Burlinsky District Court of the Altai Territory decided to completely block “Parni Plus” freedom of expression - web portal without informing its administrators about blocking information the consideration of the case in court. The prosecutor of Burlinsky district of the Altai Territory (from Burla village, on the Internet located 450 km from Barnaul) appealed to the court because in his opinion website publications violate the law “The 2013 gay propaganda law, which prohibits “on prohibiting the propaganda of homosexuality”, so the spreading of information about “non-traditional entire informational resource should be blocked. A court sexual relationships” among minors, is widely used. of first instance agreed with him. The web portal had to introduce a restriction for viewing materials on the site Russian officials and deputies state that the ban on (to people under 18) soon after that as this could help in information “aimed at creating non-traditional sexual challenging the court decision. attitudes among minors and a distorted idea of the social equivalence of traditional and non-traditional “According to the results of the audit, it was sexual relations” is made to protect children from established that information propagandizing “harmful” influence. non-traditional sexual relations is posted on the Internet at www.parniplus.com” In fact the law causes direct harm to children and denies access to important information, it stigmatizes Text information combined with images is clearly LGBT teenagers and adult family members.” aimed at popularizing and promoting non-traditional sexual relations, including among minors and it can Report of Human Rights Watch “Online and on all fronts. also provoke interest in non-traditional forms of sexual An attack on freedom of expression in Russia.” 2017. behavior in children and adolescents. www.hrw.org/ru/report/2017/07/18/307538 Considering that the fact of distribution of prohibited In 2018 several big Internet web portals aimed at LGBT+ information on the site has been established there are people in Russia received notifications about the blocking legal grounds to declare information prohibited. The based on the courts’ decisions. Information that violates information materials presented on the website violate the ban on “promoting homosexuality” was detected the prohibitions established by federal legislation and in the web content. pose a real threat to the health of children. There are factors that negatively affect their physical, intellectual, An informational web portal “Parni Plus” (translated as mental, spiritual and moral development. Guys Plus) covers life and health of LGBT* people and a big emphasis is made on preventing spread of HIV In view of the above the court decided to recognize infection and support of people living with HIV in Russia. this information, which denies family values, promotes This year the website has been attacked by the authorities. non-traditional sexual relations among children and Web portal publications include articles on LGBT* events being posted on the website http://parniplus.com as in Russia, recommendations for people living with HIV, prohibited for distribution in the Russian Federation.» publications about discrimination of LGBT* people, art and sports, interviews with opinion leaders. From the decision of the Burlinsky District Court of the Altai Territory of January 26, 2018. Gay.Ru and Lesbi.Ru websites which have existed since 1997 also received blocking notifications in 2018. These are the first cases of application of the law banning “propaganda of homosexuality” in relation to information sites whose targeted audience is not minors.

50 ЛГБТ-инициативная группа «Выход» Chapter 3. The law banning “propaganda of homosexuality”

On 22 August 2018, the Altai Regional Court reversed the decision of the court of first instance and returned the case for a new trial to the Central district court of Barnaul city. This was only the first step.

On 8 October 2018 during a new trial with the partici- Evgeny Pisemsky, the founder of the portal “Parni Plus” pation of “Parni Plus” project the Central district court of Barnaul discontinued the case. As a result of argu- “For more than a decade the site has been honestly ments presented by a lawyer the prosecutor changed talking about the growing HIV epidemic in Russia and his position and withdraw his previous court statement. telling readers about necessity to prevent HIV. Thus Coming Out finally managed to cancel the website blocking and the prosecutor’s office cancelled its claims It also informs about the nightmarish rates of new HIV of violation of the law banning “promotion of homosexu- infections among men who practice sex with men. These al relations among minors”. numbers are usually hidden in the general statistics of the Ministry of Health of Russia.

The state is obviously irritated by this fact. Measures proposed by the state (“fasting, praying, and watching television”) leave for vulnerable groups nothing but to leave or to die in the face of an epidemic.

The law banning “propaganda of homosexuality” prohibits to share neutral and vital information that LGBT people need in order to take care of their sexual health, to know about problems and ways to solve them, to participate in LGBT activities and actions, to fight discrimination and stigma for LGBT+ people living with HIV.

For me personally blocking of “Parni Plus” web portal is an attack on the freedom of information, which in fact does not harm anyone and can hinder growth of the HIV epidemic in Russia.I am grateful to the LGBT initiative group Coming Out for their professional support and legal assistance in this strategic business. If Russian courts decide to block the web portal again we’ll be ready to use all other legal means to ensure the operation of the website, using help of Coming Out”.

Coming Out, representing the interests of “Parni Plus” project, was involved in the process of challenging the judicial blocking of the website. Specialists managed to develop a winning case strategy.

51 Strategic Litigation: defending rights of LGBT People

Dmitry Bartenev, a lawyer representing the web portal Evgeny Pisemsky, editor-in-chief, “Parni Plus with the support of Coming Out “It seems that I was the most pessimistic about the idea “Although the project “Parni Plus” was forced to impose an the court would remove the blockage. It happens too age limit for site visitors under the pressure of the “pro- often when we activists lose and almost always face paganda law”, which resulted in the termination of the unfair court decisions. proceedings, the court’s decision can be considered as an important victory. In fact the prosecutor’s office rec- Therefore, this victory has become the hope that we will ognized the possibility of distributing information about someday achieve some kind of equality. ” homosexual relationship on the Internet.

Previously the prosecutor’s office took a fundamentally different position and demanded to close the site despite age restriction to access. It was unacceptable even to mention the same-sex relationships on the Internet.”

52 ЛГБТ-инициативная группа «Выход» Chapter 3. The law banning “propaganda of homosexuality”

Max Olenichev, Strategic Litigation Program Advisor, “Coming Out” LGBT Group

“Blocking websites on the Internet under the law prohibiting “promotion of homosexuality among minors” is a form of censorship for us, since it effectively prohibits to share any neutral information about LGBT people on the Internet.

That is why Coming Out stood up to protect the “Parni Plus” web portal, which specializes in providing operational, objective and socially significant information about LGBT health.

Taking into account the situation of growing HIV epidemic, it is extremely important that Internet users have access to information on how to maintain their health. Especially if they belong to a group that, due to the existence of the propaganda law, has less and less opportunity to discuss these issues openly.”

53 St. Petersburg Pride 2018 Photo: Lou Thornwood CHAPTER 4 FREEDOM OF ASSEMBLY Strategic Litigation: defending rights of LGBT People

OUR GOAL MEMBER STATES SHOULD • Encourage the state to exercise its positive obligations • Take appropriate measures at national, regional in relation to freedom of assembly for LGBT* people and local levels to ensure that the right to freedom and LGBT* activists, including through providing effec- of peaceful assembly can be effectively enjoyed, tive mechanisms for organizing and preparing peaceful without discrimination on grounds of sexual LGBT* events, through guaranteeing the safety of orientation or gender identity; participants in peaceful LGBT* events, and through • Ensure that law enforcement authorities take appro- the interception and effective investigation of actions priate measures to protect participants in peaceful directed against peaceful LGBT* events demonstrations in favour of the human rights of LGBT persons from any attempts to unlawfully disrupt or inhibit the effective enjoyment of their right to freedom of expression and peaceful assembly; • Take appropriate measures to prevent restrictions on the effective enjoyment of the rights to freedom of expression and peaceful assembly resulting from the abuse of legal or administrative provisions, for example on grounds of public health, public morality and public order.

56 ЛГБТ-инициативная группа «Выход» Chapter 4. Freedom of assembly

Public authorities at all levels should be encouraged The Committee is concerned about reports of discrimi- to publicly condemn, notably in the media, any nation, hate speech, violence against lesbian, gay, unlawful interferences with the right of individuals bisexual and transgender (LGBT) individuals and and groups of individuals to exercise their freedom activists and violation of their rights to freedom of expression and peaceful assembly, notably when of expression and assembly. related to the human rights of LGBT persons. The State party should clearly and officially state that Recommendation CM/Rec (2010)5 of the Committee it does not tolerate any form of social stigmatization of Ministers of the Council of Europe to member states of homosexuality, bisexuality or transexuality, on measures to combat discrimination on grounds of or hate speech, discrimination or violence against sexual orientation or gender identity. persons based on their sexual orientation or gender identity. It should also guarantee the exercise in practice of the rights to freedom of expression and assembly of LGBT individuals and their supporters.

UN Human Rights Committee. Concluding Observations, CCPR/C/RUS/CO/7, 31 March 2015: Russian Federation.

57 Strategic Litigation: defending rights of LGBT People

International UPDATE In November 2017 the ECHR communicated complaints Coming Out Day Rally on three detainees and in 2018 there was an exchange 2013 of positions between the Government of Russia and the applicants. WHAT HAPPENED On 12 October 2013, LGBT activists planned to hold Currently Coming Out is awaiting the Court’s decision on a rally dedicated to the International Coming Out Day complaints. on the Field of Mars in Saint Petersburg. Although the organization of the meeting was carried out in full com- “The authorities did not block counter-demonstrators pliance with the requirements of the law and the author- who were interfering in a public event, although the ities had been notified in advance of the planned event, meeting of counter-demonstrators was held without the rally could not be held. prior notice and was not peaceful.

In the morning of the rally day, a police officer of the De- LGBT participants were humiliated and insulted by partment for Combating Extremism came to the organiz- counter-demonstrators, while the police behaved pas- er’s house and informed it would be better not to hold this sively until counter-demonstrators began to physically event. The activists came to the Field of Mars, where they attack the protesters. In response to these illegal met a large, aggressive crowd, which included religious actions, the police removed the LGBT rally from the activists. The Cossacks stood and sang religious and patri- scene and stopped the action instead of putting an otic songs at the place where the meeting was to be held. end to the violent actions of counter-demonstrators.

The police officers stood around and did nothing. Police did LGBT activists were taken to the police. The po- not react to repeated requests from LGBT activists to help lice began to take action against counter-demonstra- them hold their meeting. Later some LGBT activists were tors only after they insulted police. Some of them were detained, placed in vans, and transported to the police brought to the police station and immediately released, station. The arrests were not declared. Some detainees which allowed them to continue their illegal attacks. were released after about 3-4 hours. There were many protocols on petty hooliganism. Later most cases were Police sympathized with counter-demonstrators. dismissed in the district courts. Three activists were found The government did not provide any information guilty and set penalties. However the Saint Petersburg City about the arrests of counter-demonstrators or any Court found them not guilty soon. legal proceedings against them.

COURT STEPS TAKEN The police detained and administratively prosecuted Ten activists appealed to the courts of Saint Petersburg. only participants of the LGBT rally. This demonstrates Each called for compensation for non-pecuniary damages a difference of attitude when it comes to sexual in the amount of EUR 5,000 (in accordance with the orientation or association with LGBT groups. practice of the European Court of Human Rights). Only Such behaviour was not justified and was based five activists succeeded in recognizing arrests to be on bias against LGBT activists. illegal. However, the compensation amount was reduced by the court to one hundredth of the requested value The authorities were aware of the need to take (in two of the cases, to 2,000 rubles, in two other cases sufficient measures to ensure the applicants their to 3,000 rubles and in one case to 5,000 rubles). Seven right to freedom of assembly. However, instead of detainees have passed all national judicial instances fulfilling their positive obligation to maintain public with no success and their cases have later been prepared order during the assembly, the authorities decided and directed to the European Court of Human Rights to arrest and detain the applicants. Such police complaints. behavior was not reasonable, genuine or proportionate

58 ЛГБТ-инициативная группа «Выход» Chapter 4. Freedom of assembly to the objectives of Article 11 of the Convention and International Day Against necessary in a democratic society.” Homophobia Rallies Written notes on the comments of the Government of 2016 – 2019 Russia regarding the case of complaints of three activists to illegal detentions on 12 October 2013, sent to the WHAT HAPPENED ECHR in April 2018. In 2016 the authorities of Saint Petersburg refused Coming Out activists to hold an annual action “Rainbow flashmob” (17th of May) dedicated to spreading information about tolerance towards LGBT people.

The official reason of the answer was that the place would be occupied by another event. The authorities refused to report other possible places and available dates because they thought the goals indicated in the notification of a public event violated the law “on prohibiting the propaganda of homosexuality”. Authorities” responses were appealed in a court and it refused to support the activists.

In summer 2016 LGBT* activists sent several notifications to the authorities regarding the rally in support of LGBT* people, planned to be held on July 9. Notifications were submitted the very first minutes of the first working hour so that the authoritieswould not be able to point out the place have been occupied by anyone else. How- ever the authorities refused to approve the action pointing out that a “mass cultural” event would be held at the chosen site and their applications had a privilege to be submitted earlier than for public events.

The same reason was used by the authorities when they refused to authorize public LGBT events during the entire year of 2016. The authorities’ decisions to refuse authorization of the public events were appealed to the court, which refused to support LGBT activists.

Despite this two activists came out on 12 July in 2016 for a public rally. 10 minutes after the start they were detained by the police for violating the procedure for holding a public event. However the court did not support the police charges and the cases against the activists were discontinued.

59 Strategic Litigation: defending rights of LGBT People

In April 2017 the story repeated itself. Activists filed a same time, and of its opinion that adverse consequenc- notice on holding a public event dedicated to calling for es were possible from holding the two events at the a tolerant attitude to LGBT* people and to demonstrat- same time. Taken together with the lack of legal mech- ing peaceful and positive intent of LGBT* people towards anisms by the Committee to ban the public event be- the society. However the authorities of Saint Petersburg cause of the second, mass sporting event, taking place, denied permission to organize it on the Field of Mars, in we can unequivocally conclude that the contested re- a specially designated place for holding public events, sponse does not contain a ban of the public event.” because a different mass cultural event was planned to be carried out the same day and time. The court, having The Decision of Smolninsky District Court of Saint Pe- considered the case before the action of LGBT* activists, tersburg dated 16.05.2017 in case №2а-2627/17 refused to recognize the decision of the St. Petersburg authorities as illegal, but gave an important explanation, Kseniya Mihaylova, Coming Out’s lawyer, who was pro- which allowed the rally to take place without partici- viding legal support during the rally on 17 May 2017, pants being detained by the police. convinced the police that the decision of the authorities to refuse to approve the public event was not a refusal “Holding mass cultural events in places specifically to hold it. As a result, Rainbow Flashmob gathered hun- designated for holding public events is not banned by dreds of participants and LGBT* activists were able to the law. Moreover, the authorization by the adminis- exercise their right to freedom of assembly. tration of the Central district of St. Petersburg of the mass cultural event, whose goal was to raise awareness of the need to protect and revive traditional moral and family values, did not violate the plaintiff’s rights because organizing a mass cultural and a public events at the specially designated place at the same time is not banned by law.””

The decision of Smolninsky District Court of Saint Pe- tersburg of 03/31/2017 in case №2а-2039/17

Activists decided to use this court decision in order to ensure that the IDAHOT Rainbow flashmob rally on May 17 2017 would be safe to organize. Once again, they submitted a notification to St. Petersburg authorities for holding a public rally at the Field of Mars dedicated to raising awareness about tolerance to LGBT*.

As expected, they received a negative response. The reason for the refusal: the action, if it were to take place, would supposedly violate the law banning “propaganda of homosexuality.” Activists appealed to court, and the claim was reviewed one day before the planned rally. The court reiterated its earlier position.

“As follows from the literal reading of the contested response by the Committee, the Committee only informed the organizers of the public event about having knowl- edge of another mass sporting event taking place at the

60 ЛГБТ-инициативная группа «Выход» Chapter 4. Freedom of assembly

In 2018 seven notifications of holding a public event In 2019 independent activists notified the authorities Rainbow Flashmob were rejected by the authorities. of the Rainbow flashmob. They sent notifications to all The courts also did not support LGBT* activists, citing eight Saint Petersburg “hyde parks”.The stated purpose the law “on the prohibition of the promotion of homo- of the action was to call for support of the work of the sexuality.” As the goal of the action activists pointed out UN Independent Expert on protection against violence a call for tolerant attitude of society towards LGBT* peo- and discrimination based on sexual orientation and gen- ple, demonstration of peaceful intentions and positive der identity, aimed at forming tolerant attitudes towards appeal of LGBT* people to society. LGBT in society, and to demonstrate peaceful and positive intent of LGBT towards general society. Practically “The public event is scheduled in a public place in all cases the authorities responded that such an accessible to children, which does not exclude the action would violate the “propaganda of homosexuality” promotion of non-traditional sexual relations among law, and the courts did not see anything unlawful minors The stated objectives of a public event ... in this position. should be recognized as infringing the children’s rights from the point of view of common European Independent LGBT activists organized a Rainbow flash- values protected by international law. <...> mob 2019 rally in the “hyde park” at Lenin’s square, but were detained 15 minutes into the action by the police. Consequently, spreading of a person’s beliefs and Protocols of detention for violating the “propaganda of preferences regarding sexual orientation and specif- homosexuality” law were drawn up, but the court re- ic forms of sexual relations should not infringe upon fused to consider them. the dignity of others or doubt public morality that has developed in Russian society, since otherwise would In the future LGBT* activists may again face obstacles in contradict the foundations of the rule of law. A legis- organizing public rallies, and only concerted efforts by lative ban on such propaganda is aimed at protecting activists and lawyers, as well as appropriate court deci- the health of children and cannot be regarded as dis- sions, can help. criminatory because it applies equally to everyone.” The decision of Krasnoselsky District Court of the city The situation can change only when the discriminatory of Saint Petersburg dated 16 May 2018 regarding case law “on the prohibition of propaganda of homosexuality” №2а-3878/2018. s repealed.

This court was the only one which indicated «the law does not imply a refusal to approve an event, to plan and to carry it out in a particular designated place». This allowed the organizers to hold the action Rainbow flashmob in one of the seven planned places, in the South-Primorsky Park.

Police officers arrived at the site of the rally were going to detain LGBT activists for violating the law banning “the propaganda of homosexuality”, however, Coming Out’s lawyer managed to convince the police that the rally was not prohibited and their task was to ensure the safety of participants in the public event. As a result of the court’s clarification, the actions of Coming Out’s lawyer and the well-thought-out strategy, the Rainbow flashmob rally was successful and gathered more than 150 people.

61 Strategic Litigation: defending rights of LGBT People

“Case in the Charter Court” Through litigation in 2016-2018, “Coming Out” formed the practice when the courts don’t view the refusals 2019 on part of the regional administrations to authorize the LGBT rallies as a ban. The courts took this kind of po- WHAT HAPPENED sition on concrete situations and cases, but there was District authorities have no right to refuse political and pub- no guarantee that this position would not change when lic activists to hold rallies in “hyde parks”, only because a considering a different case. Additionally, this position cultural event was announced there. It follows from the was not fixed in any document which would have to be decision of the Saint Petersburg Charter Court in the case applied to all analogous situations. of the LGBT* activist Zhenya Muha. In February 2019, LGBT* activist Zhenya Mukha filed a This case became the first LGBT* case to be considered on complaint with the St. Petersburg Charter court, requesting merits in either the St. Petersburg Charter Court (the re- the court to recognize the regional law on public meetings/ gional analogue of the Constitutional Court of Russia), or rallies as non-compliant with the St. Petersburg Charter, any other regional Charter Court in Russia. because it allows administration to withhold authorization of public rallies to LGBT* activists on the basis of the fact In recent years Saint Petersburg authorities have tried to that a mass cultural event is already authorized to be held prevent public LGBT* events. Activists submitted infor- in a given “hyde park.” mation to the district administrations about the actions planned in the “hyde parks” during the first day legally The applicant’s representatives, Dmitry Bartenev and Max possible during the first minutes of official work hours. Olenichev, provided detailed arguments why the city au- However, the authorities always answered the same: thorities must not obstruct civil society activists from using we have already agreed to hold cultural events on this site, “hyde parks” for meetings, rallies, marches, demonstra- therefore, it is impossible to carry out the LGBT* action. tions, and pickets, referencing international norms, national law, and the practice of their enforcement. This took place due to a gap in legislation. To receive authorization of a mass cultural event (a run, poetry reading, On May 17 (the International Day against Homophobia, Bi- sporting events, etc.) in a “hyde park” one needs to submit phobia, and Transphobia) the Charter court issued a deci- a notification 15-30 days before the event, but for a public sion that the norms of the regional law on public meetings/ rally one has to submit the notification no earlier than rallies does not contradict the St. Petersburg Charter. How- 5 days before the event. ever, the court gave a number of important clarifications the city authorities are now obliged to take into account in Every time during an action dedicated to the International cases of citizens realizing their right to peaceful assembly. Day against homophobia, biphobia and transphobia, authorities planned some cultural events in hyde parks. On May 17 the authorities decided to hold a children’s sports festival in the park of October 30th. In 2018 they decided to plant young lindens on the territory of the Poly- ustrovsky park to celebrate the 100th anniversary of the establishment of the Criminal Investigation Service. The holiday is celebrated annually on 5 October. On May 17 2019 some people celebrated a memory day of Push- kin (the birthday is on June 6), dedicated to the 220th anniversary of the birth of Pushkin. But when activists came to these sites on May 17, they did not observe any actual tree planting, youth races or poetry readings..

62 ЛГБТ-инициативная группа «Выход» Chapter 4. Freedom of assembly

Decision of the Charter Court of Saint Petersburg dated May 17, 2019 No. 002/19-P, the case on the compliance of the Charter of Saint Petersburg with the provisions of paragraph 3 of Article 1 and paragraph of the eleventh paragraph 1 of Article 5 of the Law of St. Petersburg dated June 08, 2011 No. 390-70 Dmitry Bartenev, lawyer, representative of the applicant “On meetings, rallies, demonstrations, marches and pickets in Saint Petersburg”on the complaint of citi- “The decision of the Charter Court put an end to the zen Evgeniya Mukha: dispute about whether cultural events have priority over public actions regarding the use of specially designated “…the provisions of the 11th paragraph of section 1 of places (“hyde parks”) or not. the Article 5 of the given legislative act [Law of Saint Pe- tersburg dated June 08, 2011 No. 390-70 Since “hyde parks” are designed for public events, “On meetings, rallies, demonstrations, marches and according to the Charter Court, activists do have the pickets in Saint Petersburg”] cannot be interpreted in the right to use them for public events and any other events way that would exclude holding of public events/rallies cannot be as a reason for refusal to hold a public event.” and mass cultural events at the same time in the same specially designated location. Moreover, these provisions cannot be interpreted in the way that would exclude holding a public event/rally in a specially designated location if a mass cultural event is being held outside the boundaries of the specially designated location.”

This case resulted in consolidating by the Charter court Max Olenichev, Strategic Litigation Program Advisor and of legal positions in defense of the right to peaceful as- the applicant’s representative sembly not only for LGBT* activists, but for all civil society activists. “In addition, the Charter Court clarified that the authorities cannot demand an organizer of a public event to change the place and (or) the time if some cultural event has already been scheduled.

The authorities are obliged to ensure safety of all activities in a hyde park, if conditions allow. Also holding meetings with different goals in one hyde park is not a reason for the authorities to allow one action and prohibit another.”

63 For the Russian-language online publication ‘‘Meduza’’ Photo: Ksenia Ivanova CHAPTER 5 LABOR DISCRIMINATION Strategic Litigation: defending rights of LGBT People

OUR GOALS Alevtina’s case – • Тo ensure that sexual orientation and gender identi- dismissal from school employment fol- ty, as well as support of LGBT rights, could never be a reason for dismissal; lowing homophobic harassment • To ensure effective protection against discrimination on the grounds of sexual orientation or gender identity WHAT HAPPENED in employment in both the public and private sectors, In December 2014 someone called Timur Isaev, including access to employment and promotion, a homophobic activist, collected some information about • requirements for dismissal, questions of compensa- Alevtina, a music teacher, and sent the information to her tion, and other working conditions school in Saint Petersburg, where she worked. The document told about the woman’s private life and Bulatov Everyone has the right to decent and productive work, to collected all the information in social networks. Later the just and favourable conditions of work and to protection administration notified Alevtina that her sexual orientation against unemployment, without discrimination on the basis was incompatible with working in the school – despite the of sexual orientation or gender identity. fact that before this incident no one was aware of Alevtina’s personal life. STATES SHALL a) Take all necessary legislative, administrative and The school director gave her a choice between voluntary other measures to eliminate and prohibit discrimi- resignation and being fired with a negative record in her nation on the basis of sexual orientation and gender employment story. Alevtina refused to resign of her own identity in public and private employment, including accord, and the director fired her based on Article 81, part in relation to vocational training, recruitment, 8, of the Russian Labor Code (which makes it legal to dis- promotion, dismissal, conditions of employment miss “an employee performing educational functions if they and remuneration; commit an immoral act incompatible with continuing this b) Eliminate any discrimination on the basis of sex- type of work”). While firing the teacher, the director empha- ual orientation or gender identity to ensure equal sized that he had no problems with Alevtina’s performance employment and advancement opportunities in as a teacher, but that he was under strong pressure from all areas of public service, including all levels of the authorities and had to let her go. government service and employment in public functions, including serving in the police and COURT STEPS TAKEN military, and provide appropriate training and On 21 April 2015, the district court dismissed Alevtina’s awareness-raising programmes to counter case to be reinstated at work and to have her dismissal discriminatory attitudes. recognized as discrimination. Afterwards the city court dismissed the appeal. The appeals to the cassation courts Yogyakarta Principles on the Application of International did not change the course of the case either. We exhausted Human Rights Law in relation to Sexual Orientation all national legal remedies, so we decided to appeal to the and Gender Identity – Principle 12: The Right to Work. European Court of Human Rights.

UPDATE In December 2017 the ECHR communicated Alevtina’s complaint about the violation of her right to respect of private and family life (Article 8 of the Convention) and the prohibition of discrimination (Article 14 of the Convention), prepared with the support of “Coming Out”. This was the first complaint communicated by ECHR from the start of “Coming Out”’s Strategic Litigation program, and the first complaint in Russia regarding dismissal of an employee

66 ЛГБТ-инициативная группа «Выход» Chapter 5. Labor discrimination on the grounds of sexual orientation. In February 2018 the Denis’s case – Government of Russia refused to acknowledge the fact of denied employment discrimination against Alevtina due to sexual orientation. However it was indicated that she had been dismissed due to the expression of behavior incompatible with the peda- WHAT HAPPENED gogical worker activities. In the summer of 2015, Denis Davydov had a successful job interview and he was offered the position in “Captains” fund . In order to communicate more effectively a fund representative suggested that Denis add her as a friend on the social media ‘Vkontakte’. In the evening Denis received a message, asking him to ‘clarify his orientation’.

Dmitry Bartenev, lawyer, representing Alevtina The message also mentioned that the organization at the ECHR in cooperation with the LGBT initiative had certain ‘explicit criteria for its employees’. Denis group Coming Out answered the Fund representative, saying that he had a stable relationship with his boyfriend. He received “According to the facts the teacher’s homosexuality was a message in response that stated, ‘the ideology and revealed to the school principal in order to put pressure management of our program are such that we adhere to on the school and to dismiss the applicant . a traditional point of view on many questions.’ The same day, Denis received an e-mail message from the Fund Instead of criticizing and fighting against homophobic representative, which stated that it would not be possi- acts of Mr. Isaev, the school and the courts subsequently ble for them to work together. indulged his actions and increased the pressure and the applicant’s discrimination due to her sexual orientation. COURT STEPS TAKEN In the fall of 2015, a legal claim in defense of Denis’s Alevtina considers that demonstration of relations between interests was sent to the Nagatinsky District Court two people, when they hug each other or kiss, does not of Moscow by a lawyer from Coming Out. contradict public morality. The Moscow Court did not recognize the refusal of These are generally accepted forms of manifestation of lov- employment as discriminatory, believing that Denis had ing relationships between two persons of different sexes. not been made an official offer, since the interview took Therefore, the authorities considered it inappropriate for a place via Skype. Moreover, the court saw no proof that teacher to have photos with signs of attachment between the woman communicating with Denis was an official people of the same sex. This indicates a discriminatory Fund’s representative. attitude towards her. I hope that the ECHR will confirm that everyone can openly demonstrate their sexual orientation UPDATE and the state does not have the right to force teachers The Moscow City Court and the Supreme Court of the to hide their homosexuality.” Russian Federation upheld this decision in 2016.

Currently the exchange of positions between the parties In March 2018, the European Court of Human Rights at the ECHR is over and Coming Out is waiting for registered Denis’ complaint in the case of denial of em- the Court’s decision. ployment on the basis of sexual orientation.

67 Strategic Litigation: defending rights of LGBT People

The case of intersectional Anastasia Vasilyeva, plaintiff discrimination “A printer is not a common profession, but I really enjoyed my job. I was fired from a company, which deals WHAT HAPPENED with manufacture of printing forms. Printing forms are In 2017 Anastasia changed a gender marker in the pass- mainly used to print packaging. Candies, chewing gums, port from male to female and reported this to the employ- mayonnaise, tobacco products - everything that is pro- er, who fired her two weeks later. duced in a very large amount.

An official reason was that the profession of Anasta- Me and other printers checked the quality of ready-made sia is included in the list of 456 professions prohibited forms. With the help of a special equipment, not manu- for women in Russia. After having worked at the enter- ally, we produced a galley proof of the form on a neces- prise as a printer for over 10 years, complying with all sary material. Then the quality control service checked the norms and work quotas, in a blink Anastasia lost her the galley proof for defects. We could barely be called right to her profession. printers. I would rather call it a quality control of finished goods. No danger. Anastasia asked to recognize her dismissal as unlawful and discriminatory, to reinstate her at work in her previ- I discussed change of documents with my manager and ous position and to recover compensation from the printing the company’s lawyer in advance. I didn’t want to be house for moral damages of 50 thousand rubles. fired. I didn’t know how long would it take to change all the documents and working at the moment of transition In November 2017 the Frunzensky District Court of Saint is very important because it’s almost impossible to get a Petersburg examined the case and denied all the claims. new job and you need money. The manager and the law- Coming Out appealed the decision to the City Court. yer assured me that there was no need to worry. But be- On April 5 2017, the City Court examined the appeal and fore I made an announcement to my colleagues, I had left the district court decision unchanged. been offered to resign as agreed by parties with a big compensation on behalf of the company management. After the case was heard in courts of two instances, They just didn’t want to have any fuss. I refused. Anastasia’s former employer demanded her to reimburse the legal costs the company incurred in the sum By applying to the court, I want to fight discrimina- of 370 000 rubles. tion. Many women are faced with the fact that they cannot do something simply because somebody decided so. The company has German capital and sent a Rus- They decided that women should give birth, cook soups, sian-speaking lawyer from Germany to represent their babysit and nothing else. These are gender stereotypes. interests in court. However Coming Out managed to I see my situation as an opportunity to change the situ- convince the court that Anastasia did not have to pay for ation and attempt to reduce this list of banned profes- an attempt to protect her rights. The court accepted the sions for women, or cancel it altogether. Using my dis- arguments of Anastasia’s representative in court and missal, I want women to gain the right to choose where refused the company to reimburse money from the and how they want to work.” plaintiff in full.

68 ЛГБТ-инициативная группа «Выход» Chapter 5. Labor discrimination

Coming Out appealed to the Presidium the decision of the City Court of non-discrimination. At a meeting on December 19 2018, the city court accepted the arguments of Coming Out and sent the case for a new consideration.

Max Olenichev, lawyer and representative of Anastasia The district court ordered a medical examination. It showed in the courts that a woman can do the job of printer and there are no contraindications after changing the gender marker. “This situation showed another aspect of latent discrimination of transgender people. This is a clear example On April 9 2019, the court recognized the dismissal as of an intersectional discrimination. Anastasia corrected unlawful, ordered to reinstate Anastasia in her former a gender marker in her legal documents and then met office, paid her 10 000 rubles compensation for non- a challenge as a woman. pecuniary damage and 1 850 000 rubles as a payment for forced absence. The courts, considering the dismissal, referred to the fact that Anastasia’s prohibition to work at her position was established to protect all women, including interests of Anastasia. However if she wants to do this job, the state does not have a right to limit her ability to choose a profession.

Such a dispute in defense of a transgender person’s right to work is being considered in the courts of Russia for the first time. This is a strategic matter for Coming Out and its results can help all transgender people in Russia.

Our ultimate goal is to recognize the dismissal of Anastasia after changing her gender marker as illegal, as well as to raise the problem of discrimination against transgender people and to change a legal regulation if possible.

Despite the fact that it’s forbidden to work as a printer for women, the trial court took our position and reinstated Anastasia in her office. Two years of litigation led to the obvious conclusion: no one should fire people just for changing their gender marker in documents. And the company will now respond in ruble for a discriminatory behavior.

Unfortunately the court decision is not final and can be changed in case of a contestation, but we will do everything to ensure that it is not canceled. I hope, that this court decision will give transgender people more strength and confidence to protect their rights in Russia.”

69 New York, 2017. REUTERS Photo: Carlo Allegri CHAPTER 6 LEGAL GENDER RECOGNITION Strategic Litigation: defending rights of LGBT People

OUR GOALS The Committee recommends that the State put in place Establishment of a quick, transparent, and accessible pro- a quick, transparent and accessible procedure for legal cedure for changing the gender markers and names of gender recognition, to facilitate the enjoyment of Cove- transgender individuals in official documents, particularly: nant rights by transgender persons. • guaranteeing that civil registry offices and courts do not require gender reassignment surgery or a partic- Concluding observations on the sixth periodic report of the ular number of such surgeries as a necessary step Russian Federation (2017). Committee on Economic, Social for changing transgender persons’ documentation, and Cultural Rights. E/C.12/RUS/CO/6, paragraph 23. • guaranteeing that any individual can choose any given name regardless of the gender marker indicated in his The possibility of changing legal documents by transgender or her documents. people was established at the legislative level in Russia in 1997. The law established that it is necessary to apply to an THE PARLIAMENTARY ASSEMBLY OF THE COUNCIL office of civil registration and submit a “gender change on OF EUROPE CALLS ON MEMBER STATES TO documents” issued by a medical organization. The form and Develop quick, transparent and accessible procedures, procedure for issuing such a document should have been based on self-determination, for changing the name and determined by the Ministry of Health of Russia. registered sex of transgender people on birth certificates, identity cards, passports, educational certificates For over 20 years the Ministry of Health of Russia could and other similar documents; make these procedures not determine the form and the procedure for such a docu- available for all people who seek to use them, irrespec- ment, as a result the civil registry offices refused document tive of age, medical status, financial situation or police change for transgender people, even if they provided cer- record; abolish sterilization and other compulsory med- tificates by medical professionals. The transgender people ical treatment, as well as a mental health diagnosis, as then appealed to courts, and the courts took different posi- a necessary legal requirement to recognize a person’s tions, but did not request mandatory surgery. gender identity in laws regulating the procedure for changing a name and registered gender.

Discrimination against transgender people in Europe, Resolution 2048 (2015), Parliamentary Assembly of the Council of Europe

72 ЛГБТ-инициативная группа «Выход» Chapter 6. Legal Gender Recognition

CHANGE OF DOCUMENTS: so transgender people must earn a lot without HOW DISCRIMINATORY PRACTICES having legal documents). IN THE REGISTRY OFFICES WERE CHANGED In 2015 – 2016 “Coming Out”, in collaboration with the “The medical document [presented to a Civil Registry Transgender Legal Defense Project, initiated several Office regarding a gender marker change] must contain lawsuits in St. Petersburg aimed at abolishing the prac- evidence of a diagnosis of ‘transsexualism’ and of the tice of compulsory gender reassignment surgeries to necessity of a change of one’s official gender marker. change documents in St. Petersburg. These appeals We do not consider surgeries and hormone replacement produced results: the courts stopped asking for gender therapy to be mandatory requirements. reassignment surgeries to change legal documents, and the civil registry offices were forced to execute court From 1991 to 2010, 118 transgender people changed decisions that came into legal force. their official documents at Saint Petersburg Civil Regis- try Offices.” In 2017 Coming Out took part in the preparation of an alternative report to the UN Committee on Economic, Letter from the Civil Registry Office Committee of the Social and Cultural Rights, where they discussed lack Saint Petersburg City Government from 18 March 2011 of a quick, transparent and accessible procedure for No. 5.03-б-126/11-0-1. changing documents in Russia.

This is an example of good practice of document change, By this time it’s been 20 years that the Ministry of Health which was the case until the summer of 2015.. Before the of Russia could not adopt a standardized form/certificate summer of 2015 Saint Petersburg was a kind of mecca for for legal document change that would greatly simplify transgender people in Russia.The legal gender recognition this procedure. procedure, despite the gaps in the national federal legislation, remained progressive and adhered to the main Euro- As a result the UN Committee in October 2017 recom- pean human rights standards in this area. mended Russia to “introduce an expeditious, transparent and accessible procedure for legal recognition of a gender In 2015 the situation changed dramatically. Offices of identity in order to facilitate the exercise of rights enshrined civil registration of St. Petersburg began to demand from in the Covenant by transgender people”. E/C.12/RUS/CO/6, transgender people to have gender reassignment surgery subparagraph b of 23 paragraph of recommendations. to be performed, which clearly failed to follow European standards for a procedure to change documents: The same month the Ministry of Health of Russia announced project planning of a decree, which entered • Such a procedure was not quick (Civil Registry into force on 2 February, 2018. From this point on, med- Offices denied document changes via administrative ical commissions began to issue certificates to trans- procedures, forcing people to turn to the courts; gender people in accordance with one form approved by instead of a one month process, they had to wait the Ministry of Health of Russia and the civil registry for 6-7 months or more); offices began to change a gender marker in the birth • Such a procedure was not transparent (the criteria record. As a result the procedure for changing docu- that applicants had to meet in order to change their ments has become faster, transparent and accessible. documents were made up spontaneously by the However there are still cases when to change one’s Civil Registry Offices and the courts – for example, passport, to register for military service or take one’s surgery is not listed as a requirement in any law name off the register without additional medical evalua- or medical protocol); tions, or to receive other kind of documents is not • Such a procedure was not accessible (the cost so easy because the law enforcement agencies have of gender reassignment surgery is very high neither experience working with these kinds of ques- and it’s not being covered by public insurance, tions, nor relevant methodological recommendations.

73 Strategic Litigation: defending rights of LGBT People

In May 2019, the World Health Organization approved Transgender people is one of the most vulnerable social the 11th edition of the International Classification of Dis- groups in terms of discrimination. eases (ICD), excluded transgender from the chapter on Due to the lack of public awareness and the prevalence mental and behavioral disorders and introduced a new of stigma, transgender people often do not have access to chapter on “conditions related to sexual health”, which medicine, employment and education; they are subjected to included new categories related to transgender. “Gender violence, threats and pressure from family members, ac- mismatch (incongruence) in adolescence or adulthood” quaintances, colleagues and random people. and “gender mismatch (incongruence) in childhood”. We see our goal as gradually changing the situation of A new chapter has been introduced to provide transgender people through supporting the community and medical support to the needs of transgender people. informing transgender people about their rights and op- It depathologizes transgenderism and opens up new portunities that exist, through educating the general public opportunities for the adoption of non-discriminatory and supporting specialists about the needs of transgender national legislation. Each state independently decides when people, and through helping to create positive administra- to adopt to the next 11th edition of the ICD, therefore, the tive and judicial practice with regards to legal documents 10th edition of the ICD is still operating in Russia. change. We want people to be able to live, not to survive.

Jonny Dzhibladze, Trans*Mission” Program Coordinator of Coming Out LGBT Initiative Group

Until 2018 the legal aspect of transitioning was not actually settled in our country, and most transgender people had to change documents through the court, faced with many un- justified obstacles and requirements.

A new form of a “gender marker change” certificate made the process of changing documents more predict- able and faster. Now documents can be changed in an administrative way. But for many transgender people the legal transitioning process is still unavailable. There are very few medical commissions where transgender people can be examined and get all necessary information. In practice documents can only be changed at the place the place of “permanent residence”; there are also widespread cases of discrimination and excessive demands on transgender people when receiving military registration cards and interacting with military registration and enlistment offices.

74 ЛГБТ-инициативная группа «Выход» Chapter 6. Legal Gender Recognition

Anna’s case PART 2: CHANGE OF NAME AND PASSPORT GENDER MARKER PART 1: MAKING A NAME CHANGE WITHOUT A CHANGE OF GENDER MARKER In 2016 both the Transgender Legal Defense Project and Coming Out supported Anna in changing her name and WHAT HAPPENED passport gender marker. a transgender woman named Anna wanted to change her name in the passport from male to female, keep- In 2016 Anna applied to the Frunzenskiy District Court ing the gender mark the same. The registry office refused of Saint Petersburg for a further change of documents to change the name, referring to the fact that they should (name and passport gender marker). On May 25 2017, keep records in Russian and according to the rules of Rus- the court ruled to satisfy Anna’s application to change sian language, men should have male names and women the birth certificate. should have female names. At the beginning of July 2017 the court decision was ex- COURT STEPS TAKEN ecuted and Anna received a new passport of a citizen in July 2015, the Frunzensky District Court of Saint Pe- of the Russian Federation, indicating the female gender tersburg refused a name change to Anna. The court’s and a changed name. refusal was motivated by the argument that a citizen’s name change affects the public interest, meaning that the absence of a ban on name choice cannot be interpreted as the right to use any name. Therefore, an individual with a gender marker of male does not have the right to use a female name.

UPDATE In November 2015, the Saint Petersburg City Court left the decision of the district court unchanged. Making the decision, the court noted that according to Article 68 of the Constitution of the Russian Federation, the official language is Russian and according to paragraph 5 of Article 6 of the Federal Law «On acts of civil status», records in the civil registry offices are written in the state language of the Russian Federation.

‘‘.. living in Russia and realizing rights and freedoms in relations with other people and the state, the applicant cannot but reckon with the norms of the Russian language’’ - from the statement of the Judicial Collegium

The decision and the appeal ruling were later appealed to the higher courts, which left them unchanged.

The last step was an appeal to the European Court of Hu- man Rights, Anna wrote it with the support of the Trans- gender Legal Defense Project.

75 Strategic Litigation: defending rights of LGBT People

The case of changing parental data in “father” field and to leave “mother” field blank, due to changes in his legal gender and name. status The registry office unreasonably refused to satisfy his application, explaining that such a procedure was not Changing documents for transgender people includes established by law. Lawyers of Coming Out applied to not only making changes to the birth certificate and the court. receiving a new passport, but also requires making changes to the documents for children who were born before the change of the gender marker. In this case it is necessary to change columns in a civil status act record: respectively, a mother or a father, indicating the parent according to the changed legal gender, and also change the child’s patronymic name.

Russian registry offices and courts rarely encounter such situations, since the procedure of getting a new passport takes a long time and requires emotional resources from transgender people, and not many people who changed gender marker are ready to tackle changing birth records of their children.

Coming Out considers it important to take into account needs of transgender people and remove barriers in the process of changing all necessary legal documents. Therefore the issues of changing information about parents in children’s documents after their parents received a new passport is included in its legal strategy.

The name of a person who asked for help will not to be used for security reasons. Therefore, we illustrate the case through the statements of lawyers.

Few years ago a transgender man gave birth to a child. The registry office of St. Petersburg issued a birth certificate and put female data of the transgender man in a “mother” information field and left a “father” information field empty.

Later he made a medical transgender transition. Now it was possible to change a transcript of the birth certificate of the transgender man in terms of gender marker change from “female” to “male”. The name was also changed to male.

The man applied to the civil registry office at his place of residence with a request to make changes to the record of his daughter’s birth certificate. He asked to put his

76 ЛГБТ-инициативная группа «Выход» Chapter 6. Legal Gender Recognition

Max Olenichev, Strategic Litigation Program Advisor, Galina Ibryanova, Coming Out’s lawyer, representative of “Coming Out” LGBT Group: the transgender man in court

“The law does not limit the range of data and docu- “This situation resolved positively because we managed ments that can be changed in accordance with the pro- to prove in court, if there is no indication of the possi- cedure established by Article 70 of the federal law “On bility to change documents for children and information Acts of Civil Status”. Therefore if you change informa- about the parent’s field has been changed, nobody can tion about a gender of a person it’s possible not only to use it to leave the situation in limbo. change the person’s data (gender marker, name, sur- name and patronymic in the record of the person’s birth The court analyzed the Russian legislation and interna- certificate), but also to make changes to the documents tional obligations of Russia and even in the absence of where they have been already listed (for instance it in- a clear legal regulation it supported the need for a legal cludes birth certificates of children born before a gender settlement of the situation that had appeared.” marker change of the parent). The law does not directly indicate how to act in such situations. Civil registry offic- Unfortunately there are frequent cases of refusals of reg- es refuse to make information different and transgender istry offices and courts to change documents for children people have to defend their rights in courts.’’ when parents change their gender markers on documents in Russia. This strategic case inspires many transgender The man also mentioned that he had married a wom- people in St. Petersburg as an example of well-coordinated an who wants to adopt his daughter and to become her work of the applicant, the lawyers of Coming Out and the mother. Before contacting the registry office, they had court, which executed its functions well enough. been living like a family for several years and raised their children together. As the legal situation of transgender people has improved, “Coming Out” launched a separate sub-program within the The court upheld the position of lawyers of Coming Out scope of its legal work specifically for questions of legal after analyzing Russian legislation, the UN Convention documents change for transgender people. on the Rights of the Child and the European Conven- tion for the Protection of Human Rights and Fundamen- tal Freedoms and turned the court’s decision to immediate implementation.

“Making these changes ... will contribute to the interests of the child as well as ensure the rights of the child and the applicant to privacy, personal and family secrets.’’ from the decision of the court: While the court decision was being executed, the man received new documents on the birth of a child. He was finally indicated as a father and an information field “mother” was left empty. In addition, the child’s patronymic was changed.

77 Entrance to the Sterligov grocery store in Nizhny Novgorod, October 26, 2017 Photo: Roman Yarovitsyn, ‘‘Kommersant’’ CHAPTER 7 DISCRIMINATION IN THE PRIVATE SPHERE Strategic Litigation: defending rights of LGBT People

The growth of homophobia and transphobia in Rus- OUR GOAL sian society is caused by the propaganda of intolerance, To ensure non-discriminatory access of LGBT* people to goods, work and coming from some public figures, television channels, services by creating positive judicial practice and streamlining its results. officials. This affects how people act in relation to their peers: in everyday life, family, when using services, buying goods, or using products of someone’s work.

Homophobic and transphobic people are not ready to accept other people as they are. Because of fears and stereotypes they discriminate against LGBT* people, including gender-nonconforming people, refusing them goods or services.

This leads to the fact that LGBT* people, subjected to discrimination, tend to stay closeted more often. They do not feel free while shopping, going to fitness centers, theaters and other public places. And access to these places should never depend on sexual orientation or gender identity.

It is necessary to strengthen LGBT* communities to ensure equality for all people. The more LGBT people* will be accepted, the more freedom all members of society will experience.

From 2016 to 2019 several cases of discrimination against LGBT* people occurred in St. Petersburg. They were refused goods and services solely on the basis of their belonging to the LGBT* community.

80 ЛГБТ-инициативная группа «Выход» Chapter 7. Discrimination in the private sphere

STATE OF THE NATIONAL LEGISLATION The Committee is concerned that despite the infor- In Russia there is no comprehensive anti-discrimina- mation about existing anti-discrimination provisions, tion legislation. Separate legal norms ensuring the right to including the Constitution and the Penal Code of the equality, for example, in labor, are contained in some laws. State party, provided by the delegation, the comprehensive anti-discrimination legislation in the State However, no legal act clearly indicates a prohibition of dis- party has not yet been adopted. crimination based on sexual orientation and gender identity. In such a situation, the lawyers of Coming Out use an The Committee is also concerned about the wide- analysis of all the mosaic legal norms on ensuring the right spread social stigma and discrimination on the ba- to equality contained in national legislation, using interna- sis of disability, ethnicity, sexual orientation, gender tionally developed approaches to prove discrimination. And identity and health status(art. 2). it sometimes works in Russia. The Committee recommends the State party to take Another problem is the practice of shifting the obliga- steps to enact comprehensive anti-discrimination tion to prove the fact of discrimination onto the person legislation that would cover all grounds for discrimi- who suffered from it. This approach does not contribute to nation, including sexual orientation and gender iden- the elimination of discriminatory attitudes, the legislation tity. should provide for the obligation of a person or organization that has not ensured the right to equality, to prove the Committee on Economic, Social and Cultural Rights (2017) absence of discrimination, however, this approach is not Concluding comments to the Russian Federation, para- currently used in our country. graphs 22-23 E/C.12/RUS/CO/6

“The state guarantees equality of rights and freedoms of a person and a citizen regardless of their gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, belief, membership in public associations, as well as other circumstances. Any form of restriction of the citizens’ rights on the basis of social, racial, national, linguistic or religious affiliation is prohibited.’’

Constitution of Russia, Article 19, part 2

“Discrimination or in other words violation of the rights, freedoms and legitimate interests of a person and a citizen, depending on their gender, race, skin tone, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, convictions, affiliation or non-affiliation with public associations or any social groups - entails the imposition of an administrative fine in the amount of from one thousand to three thousand rubles on citizens and from fifty thousand to a thousand rubles on legal entities.’’

Code of the Russian Federation on Administrative Of- fenses, Article 5.62

81 Strategic Litigation: defending rights of LGBT People

The case of the fitness club S., the plaintiff:

WHAT HAPPENED “The law cannot require from a person to conform to some In 2016 S. came for a new gym membership in the fit- standard and each person should be given the right to be ness-club, where she had been training for six months. who they are by nature and how they refer to themselves. It was necessary to show a passport and pay for a new How the person speaks of themselves should be the only subscription to sign a new contract, but the fitness club’s proof required.” administration put forward one more requirement. The young woman was asked to use men’s dressing room. She was told that visitors were spreading «bad rumors’’ and they were annoyed by her gender expression.

S. has never heard any criticisms from the administration or from other visitors at any point while using the club, but the club’s staff refused to comment the situation when refusing to prolong her contract.

S. went to Coming Out and asked for help and legal assistance. She filed a lawsuit to the district court of St. Peters- burg in summer 2016. In her lawsuit S. asked to recognize the actions of fitness-club’s administration as contrary to the right to equality and non-discrimination, to oblige the club to sign a new contract and to pay 100,000 rubles as non-pecuniary damage compensation.

In November 2016 two witnesses were questioned at the court hearing. They complained that S. had a “large body” that did not correspond to the “standards of a female body” and therefore could not use the same dressing room and shower. The court wasn’t convinced with such an argument. The claim was satisfied immediately in the court of first instance. It recognized the club’s administration actions as discriminatory and a refusal to give a new contract as unreasonable.

On 5 December 2016 the court sided with the young woman. The court acknowledged the fact of discrimination in the actions of the fitness club and asked it to pay the plaintiff a non-pecuniary damage compensation in the amount of 10 thousand rubles. The fitness-club tried to challenge the decision in the City Court of St. Peters- burg and failed it. In August 2017 the court decision was executed. S. received 10 thousand rubles and gave all the money to Coming Out for charity.

82 ЛГБТ-инициативная группа «Выход» Chapter 7. Discrimination in the private sphere

IN 2018 “COMING OUT” CONDUCTED AN ONLINE SURVEY ON AVAILABILITY OF FITNESS CLUBS FOR TRANSGENDER PEOPLE. 164 PEOPLE TOOK PART IN THE SURVEY. THE ANSWERS WERE AS FOLLOWS:

The question about discrimination experienced in fitness clubs:

• 55% - would like to work out in a fitness club, but fear discrimination, therefore they don’t go there

• 12.6% - were using a fitness club, but were forced to leave it because of discrimination or the risk of facing it (for example, when changes in appearance became noticeable or when passport information was changed or for some other reason)

• 8.4% - are using a fitness club and have faced or face discrimination

The question ”what are the most frequent problems when you visit a fitness club”:

• 20% - experiencing pressure from other clients of the fitness club due to respondent being a transgender person

• 17% - being forced to use a changing room, a shower, or a bathroom that does not match the respondent’s identity by the club’s administration.

The question “what exactly makes a fitness club uncomfortable or unsafe”:

• 67% - having to use open showers, where other visitors can see the respondent

• 64% - no private space to change clothes

• 60% - locker rooms and showers being strictly divided into male and female, and admittance being by passport gender marker only (in case when it does not correspond to the person’s identity)

83 Strategic Litigation: defending rights of LGBT People

The case of Sterligov’s shops «According to the Part 2 of the Article 19 of the Constitu- tion of Russia, the state guarantees the equality of rights WHAT HAPPENED and freedoms of a person and citizen, regardless of their In 2017 German Sterligov, who claims himself to be an en- gender, race, nationality, language, origin, property and of- trepreneur, opened 3 food stores in St. Petersburg. They ficial status, place of residence, attitude to religion, beliefs, installed wooden plates saying «No entry for faggots» in membership in public associations, as well as other cir- the shops’ windows. In the atmosphere of increasing ho- cumstances. Any form of limiting rights of citizens on the mophobia Russian society divided into two camps: those basis of social, racial, national, linguistic or religious affilia- who clearly saw that these signs contained unacceptable tion is prohibited. discrimination of LGBT* people, and those who supported this restriction of the rights of LGBT* people. By virtue of the Constitutional Court’s position of the Russian Federation (Paragraph 4, Clause 2.1 of the Res- In 2017 activists of Coming Out appealed to the prosecu- olution of the Constitutional Court of the Russian Feder- tor’s office of St. Petersburg with a statement. They asked ation dated September 23, 2014 N 24-P “On the case of to check the legality of installing plates with such con- verifying the constitutionality of Part 1 of Article 6.21 of tents, suggested the prosecutor’s office to oblige the shops the Code of the Russian Federation on Administrative Of- to remove the wooden plates and to hold store owners fenses in connection with the complaint of citizens of N. administratively liable for discrimination. Alekseev, Y. Evtushenko and D. Isakov ”) LGBT* people should be considered as a social group.

Installing and locating the plates in stores of German Ster- ligov in St. Petersburg restrict the access of LGBT* social group representatives to the shops. It violates the civil rights of any person from LGBT* community and therefore Max Olenichev, Strategic Litigation Program Advisor, requires the prosecutor to take action. “Coming Out” LGBT Group The employees of German Sterligov’s stores in Saint Pe- «Installing of plates «No entry for faggots» in the shops’ tersburg refuse LGBT* people to buy goods (concluding a windows indicates that the store’s employees refuse to sell public contract) on a discriminatory basis, due to a sexual goods to representatives of LGBT social group due to their orientation of customers (LGBT* social group affiliation).’’ sexual orientation. From the mass statements of the activists of the Coming Therefore the stores violate equal rights of buyers (and Out to the prosecutor’s office of Saint Petersburg. shop visitors) on the basis of sexual orientation. Meanwhile in Russia the concept of a public contract is enshrined in law. It applies to shops and precludes refusal to sell goods to people on the basis of their sexual orientation or gender identity.

Therefore we demanded the prosecutor’s office, as the only law enforcement agency in Russia, which has the right to initiate an administrative offense case, to apply Article 5.62 of the Russian Federation Administrative Offence Code and to bring the guilty part to responsibility’’.

84 ЛГБТ-инициативная группа «Выход» Chapter 7. Discrimination in the private sphere

After receiving the appeals, the prosecutor’s office of St. Petersburg began to readdress them to the prosecutor’s offices of the city districts and the latter readdressed them to the internal affairs departments of the city districts. In the end the statements were received by the police departments. The police had no authority to initiate a discrimina- Grigory, the case applicant tion case and began to check statements for the presence of an “insult” offense in the actions of the shop owners. «When me and my friend came to the shop, we were choosing tea for a long time. We are not customers of However the activists insisted that they did not ask to check this store, but we decided to check if they would sell us the signs for insults; they claimed discrimination against some tea. When I went to the counter to pay, the store LGBT people, which is not an insult. employee refused to sell the goods, because in her opinion I “behaved like a homosexual.” Complaints were filed and as a result police refusal or- ders to start “insult” offense cases were canceled by the At this point I felt that unlike others I can not buy the prosecutor’s offices and the materials were sent for a product I choose in this store. Not because I have no new inspection. money or they ran of goods, but just because I look like a homosexual. At present the prosecutor’s office has not considered any complaints of discrimination and lawyers are seeking deci- It was not an insult for me. It was a message of the sions from the prosecutor’s office. store that I have no equal rights with other people. This situation clearly shows that the law enforcement Such restrictions should not exist for any people, be- agencies of Saint Petersburg are not ready to work with cause they divide us into groups, when some human be- cases in the field of discrimination, identifying and bringing ings can enjoy their rights and others cannot. This is in- those responsible to justice. equality and it leads to conflicts in society. And the goal of the case of Sterligov’s shop is to make the That is why I sent a statement to the prosecutor’s office prosecutor’s office think about the necessity of applying and I hope they would do their job and put an end to the a legal norm, which establishes a fine for discrimination discriminatory treatment in Sterligov’s stores.” against LGBT * people.

85 Court in the case of Kirill Baranov 2016 Photo: Valery Zaitsev, SCHSCHI for ‘‘Medusa’’ CHAPTER 8 FAKE DATES Strategic Litigation: defending rights of LGBT People

Several organized criminal gangs, responsible for nu- OUR GOAL merous crimes against homosexual and bisexual men to reduce the number of “fake dates” by effectively in- have been active in Saint Petersburg vestigating and bringing those responsible to justice for under the guise of “fake dates”. the violent crimes they have committed.

Criminals lure the victim into a rented apartment, «The Committee is concerned at consistent reports threaten to disclose their sexual orientation, use physi- that ….. gay, bisexual…... are subjected to violence cal violence and steal large sums of money. Sometimes because of their sexual orientation or gender identity, they cause injuries. including physical attacks and other ill-treatment.

Victims are always homo- or bisexual men. Crimes in- The State party should: ensure that those responsi- clude robbery, theft, extortion, beatings, harming health. ble for violent attacks and hate crimes against per- The actions of criminals fall under the articles of the sons on the basis of their sexual orientation or gen- Criminal Code of Russia, and should incur criminal lia- der identity…...are charged, investigated, prosecuted bility ranging from fines to actual imprisonment. and, if found responsible, punished. “

The gangs are well organized, with specific roles assigned Committee against Torture. Concluding observations on to every member: “the tenant” rents an apartment; “the the sixth periodic report of the Russian Federation, para- bait” lures the prospective victim into the apartment and graphs 32-33. CAT/C/RUS/CO/6, 2018 creates a compromising situation; “the journalist” films the scene as well as gives proof of access to the media where the compromising information can be published. Some- times there are people who claim to be “police officers” (showing fake police ID). Rarely the gang operates in a minimum mode: “bait” and “robber.”

In 2015 12 victims of “fake dates” came to Coming Out. Then there were 11 people in 2016, 9 in 2017, 6 in 2018 and 4 in 2019 (during first 6 months of 2019).

It seems that the numbers reflect a positive tendency to reduce, but in reality this is not quite true.

People are afraid to ask for help and we can only guess about the real number of crimes. Widespread homophobia does not allow victims to report crimes committed or demand prosecution of the criminals.

Choosing representatives of a vulnerable group of the pop- ulation as victims, the criminals expect that their victims will not seek protection from law enforcement agencies because of fear of facing the police homophobic reaction. They think these criminal acts escape unpunished.

88 ЛГБТ-инициативная группа «Выход» Chapter 8. Fake dates

Story of Kirill Baranov, the Demonstrating a sewing needle and using it as a weapon, the accomplice threatened the victim with violence case of a classic fake date dangerous to health, which the victim perceived to be real and frightening, and again unlawfully demanded WHAT HAPPENED the victim’s money.” In January 2016 Kirill met a young man in the dating service . When he came to the meeting, a group of peo- From the verdict of the Krasnogvardeysky District Court ple was waiting in the apartment and threatened him to of the city of Saint Petersburg, dated 08.09.2016 call police and TV-media. Before the trial one of the criminals Kulikov P. was un- They explained that the age of the young man was alleged- der a written undertaking not to leave the place and two ly 16 years old. The criminals used physical violence to other accomplices Semkina Y. and Vasilyev I. were de- Kirill. He was forced to give the criminals 50,000 rubles. tained in a remand prison. Kirill asked for a legal assistance in Coming Out, which started to work on the case. As a result of actions of the lawyers and attorneys of Coming Out, one of the criminals was sentenced to 2 “Around 7 pm on 16 January 2016, he [the criminal] met years and 2 months of imprisonment, the second and with K. at the intersection of Udarnikov and Nastavnikov the third one were sentenced to two years of probation. Avenue in Saint Petersburg. They went to the apartment together. When he was with K. in the apartment’s However, the prosecution of the criminals was not over. kitchen he began to undress according to his role in the In 2017 with the support of Coming Out the victim Kirill criminal conspiracy. His accomplices entered the apart- filed a civil claim against the criminals. He asked for ment after opening the door with a second set of keys. compensation for the harm caused by the crime.

At the same time he (Kulikov) immediately left the On January 25, 2018, Kalininsky district court upheld kitchen and went to the bathroom. his claim. The decision entered into force on the same day: the criminals were sentenced to pay 50,000 rubles Two of his unidentified accomplices came to the kitch- in material damage and 58,000 in moral damage and en, where the first unidentified person struck the vic- court fees to the survivor. tim’s right temple, not less than 2 kicks to the right calf, did multiple punches to the neck from behind, applying physical violence that caused the victim pain but was not dangerous to health.

He also lied to the victim about Kulikov allegedly being underage, that the victim’s actions constituted child sexual abuse, and that this information would be passed on to Kulikov’s brother.

Then the accomplice unlawfully demanded money from the victim for not disclosing the above (false) information. The victim refused.

After that the accomplice and the second unidentified accomplice attacked the victim K., hoping to crush the victim’s will and ability to resist.

89 Strategic Litigation: defending rights of LGBT People

Max Olenichev, Strategic Litigation Program Advisor, Jack Harrison-Quintana, head of Grindr for Equality “Coming Out” LGBT Group «Safety of users is extremely important for Grindr. In Saint “Each case of fake dates, being considered in the court, Petersburg we cooperate with Coming Out and distribute demonstrates to other criminals the fact of the inevitability information about the basic rules for the safe dating of punishment. All their crimes are based exclusively on the using our application. Each Grindr user regularly receives vulnerability of homo- and bisexual men in conditions of a information on how to behave on a date, how to protect widespread homophobia in Russian society. yourself and where to go in case of a crime.

Root causes of such crimes are homophobia cultivated by Setup dates are crimes and criminals must be punished. politicians and other public figures, existence of a law “on LGBTQ people should not be afraid to meet online or offline. prohibition of propaganda of non-traditional sexual rela- The safety of LGBTQ people is one of our top priorities. tions” and propaganda of traditional values, which politicians see as restoration of conservative norms in society. We look forward to working with Coming Out and other LGBTQ organizations all across Russia and want to As a result of the official approval on the fight against gays, continue making Grindr a safe space for our community.’’ the criminals feel unpunished and are ready to commit crimes against members of vulnerable groups, believing that victims will not go to law enforcement agencies, and the latter will not take complaints from gay men seri- ously or react to them.

However these are exactly the cases where we are able to work successfully with the police and to seek real imprisonment for especially dangerous criminals. Coming Out makes great efforts to obtain evidence of the crimes committed and to transfer them to the police in time.

A quick reaction and immediate filing of the victim for legal support plays a great role in the effective investigation of such crimes.

In connection with a growing number of “fake dates”, we organized some preventive work: to publish and distribute leaflets how not to become a victim of such a date. We also built effective cooperation with the dating applications “Hornet” and “Grindr”, who are interested in safe dating and try to make a big contribution to this.”

90 ЛГБТ-инициативная группа «Выход» Chapter 8. Fake dates

The case of a fake Badoo date

WHAT HAPPENED In December 2017 Sasha Renov met “Shamil” at Badoo application and made an appointment. It all began as usu- al. They met in a crowded place near a shopping center and went to an apartment. Within minutes of arriving “Sham- Kseniya Mihaylova, Coming Out’s lawyer and Sasha’s il” (this is a fake name of the criminal, indicated in the pro- representative in court file on Badoo) tried to strangle Sasha and began to rob the apartment. Later an accomplice joined him, the criminals “As a rule the police are satisfied after having found at took away money and valuable objects. least one criminal of the group and then don’t look actively for any others. What we see here, the case is al- Sasha Renov, victim located in a separate proceeding and there is no infor- ‘‘Before leaving they argued what to do with me: to kill, mation on how is it going. Although there are indications to tie or to knock me senseless.’’ that crimes continue to be committed: the same profile with the same photos is used. We assume this is the The same evening, Sasha called Coming Out’s lawyer second accomplice, who was lost. and filed a statement to the police. Police reacted quickly. “Shamil” was found within three days, using a “bait”, A proper investigation of fake dates is quite necessary. a similar profile in the dating app. They are still looking It is important to identify all the participants of these for a second criminal within a separate criminal case. unlawful actions. LGBT people belong to a vulnerable group and criminals use this vulnerability and stigmati- The accused pleaded guilty in court. On 4 October, 2018, zation for fake dating. the Vyborgsky District Court of St. Petersburg sentenced him to three years of imprisonment in a colony for a Bringing such people to criminal responsibility and high- robbery on a fake date. lighting these situations in the media serves to punish the criminals and to identify all participants of sim- He is already serving a sentence and Coming Out is pre- ilar criminal communities. It is also a signal that LGBT paring a lawsuit against him for victim’s compensation community is not a legitimate victim for violence and it’s for the harm caused by the crime. time to get rid of the stigma.”

91 Strategic Litigation: defending rights of LGBT People

The case of setup dates Alexey managed to break free and escape down the stairs. He called the police, reported the crime and left. in Rybatskoe A police officer arrived at the crime scene and called Alexey, but the latter, suffering from stress and injuries, WHAT HAPPENED refused to come back and gave a detailed description of Alexander Salnikov and Vadim Sergeev lured gay men the incident by telephone. to “fake dates” in the Rybatskoe metro area. The crimes were committed “en masse”: during 9 days in November The next day, experiencing a severe physical discom- 2017 they organized 3 “fake dates.” fort, Alexey went to a hospital where he began his treatment at a trauma center. Alexey later reported the crime On 1 November, 2017, a student named Stanislav Iva- to the police in person. nov, was contacted by a young man named “Arthur” via the dating service “Hornet”. Arthur, who turned out to be The actions of the criminals were qualified as an attempt a part of the criminal group, asked Stanislav for a date. to rob and usage of violence that is not dangerous to life and health. Alexey asked for help in Coming Out. When Stanislav met “Arthur” and followed him up the staircase into an apartment building, a man suddenly Considering the stress and physical injuries sustained emerged and demanded that Stanislav give them all his during the fight and the escape, I didn’t really want to money, threatening him with physical violence. The stu- tell any stories to the police officers, who by no means dent obeyed, making a cash transfer to the card number would take a position of compassion and empathy. the robbers had given him, whereupon he was released. I realised that if I showed messages, photographs, and On 2 November, a similar crime was committed against told the details of the story, I would feel ashamed. I Alexey Soloviev. Around 10 p.m. the survivor met “Ar- didn’t want to endure the condemnation in front of those thur” who invited him to the apartment (the address was people whose job is to protect us. the same as in the previous case). The criminal then claimed that he had dropped his keys in the taxi and left. However, I reported this episode to Coming Out. I found 10 minutes later he came back with a man. Alexey had out that my case was not the only one. After talking with a feeling that “something was off” and tried to leave, but Coming Out representatives, I decided to write a state- “Arthur” and the newly arrived accomplice blocked all ment to the police. And I am glad that I did this,” the exits. says Alexey.

The criminals started questioning Alexey about his sex- On November 9 2017, Sergeev and Salnikov invited an- ual orientation, mocking and insulting him; they claimed other man for a “date”. Criminals blocked his path at the that “gays must all be exterminated or deported to a entrance of a building and demanded to send 30 thousand separate country”. They demanded Alexey “to give them rubles to them during 10 minutes after fighting with him. all he had”, intimidating him and threatening to disclose the information on his sexual orientation on social me- By a coincidence, lawyers of Coming Out were in the vicin- dia and to send screenshots of his conversations with ity of the crime scene, collecting video footage from the “Arthur” to his parents. surveillance cameras. They saw what was happening and instantly called the police. Police tried to catch the crim- Then the criminals threatened to call their accomplices inals. One of them was arrested immediately, “Arthur” and to take Alexey elsewhere. They informed him that managed to escape, but was caught afterwards. they were members of a “gay hunting” gang. They tried to force Alexey to get more money by calling his friends, acquaintances and parents. Then they physically assaulted him, hit him several times and tore his jacket.

92 ЛГБТ-инициативная группа «Выход» Chapter 8. Fake dates

It is very important that the criminals were detained thanks to the “Coming Out” team, who helped the investigation in every way and often did the investigator’s work. Their moral support and company played a great part especially in the early stages of the investigation. I am convinced that the simplicity of the case, the clear nature of the criminals’ motives Galina Ibryanova, Coming Out’s lawyer and the evidence in the case should have contributed to a quick investigation. But a year passed from the “This is an absolutely fair court decision and the moment of the crime till the actual verdict. said Alexey punishment is quite adequate, given that there was Soloviev. more than one episode of the attack. I think it might be a good warning to those who organize “fake dates”. On 10 November 2017, criminal proceedings were initiated as a case of “robbery, premediated and committed by a group of persons, with the use of violence not threatening to life and health, or under threat of such violence.”

In 2018 all criminal cases were merged into one and transferred to the court for consideration.

On 12 October 2018, Salnikov was put on probation for 4 years and Sergeev was sentenced to 5 years and 6 months of a real sentence by the Nevsky District Court. The verdict to Sergeev was more severe due to the fact that he had a criminal record, and at the time of organizing the “fake date he was wanted.

The defendants pleaded guilty, the case was examined in a special order at their request, without examin- ing the evidence by the court. This is the biggest punishment that the organizers of setup dates in Saint Pe- tersburg ever received.

In March 2019, the sentence entered into its legal force and the Saint Petersburg City Court did not change it.

Coming Out is currently preparing the claims for compensation for non-pecuniary damage to be paid by the criminals, which will soon be sent to court.

93 St. Petersburg, 2020 Author: Maxim Olenichev Editor: Sasha Babenko Design and layout: Vasily Chumakov “COMING OUT” LGBT INITIATIVE GROUP

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