The winner of our poll to select the best UNTB decision of 2023 is the UN Human Rights Committee’s March 2023 decision (published in June 2023) in the case of Krikkerik v Russia.
Krikkerik v. Russia received 25.64% of all votes cast. Alonzo et al v Philippines (CEDAW) came in second place with 23.08% of the vote and third place was shared between Bellini v Italy (CRPD) and C.P. et al. v France (CAT) which each received 12.82%.
Krikkerik v Russia concerns homophobic violence by counterdemonstrators during a pride parade on 29 June 2013, and an assault by two unknown men on 3 November 2013, who stormed into the office of a project for the lesbian, gay, bisexual and transgender community with their faces covered by masks and scarves. Both incidents occurred in Saint Petersburg. Sasha Maimi Krikkerik argued that the police not only failed to protect those taking place in the pride parade, but that they also failed to effectively investigate both attacks as hate crimes against lesbian, gay, bisexual and transgender individuals. The Human Rights Committee agreed with Krikkerik on these points.
Firstly, the Committee held that whilst the state authorities cannot prevent all forms of violence in private settings, state authorities have clear positive obligations to protect individuals from reasonably foreseeable threats of harm in the context of peaceful assemblies. The Committee then assessed the measures taken by the police during the pride parade:
"A metal fence erected by the police created a cage-like enclosure for participants, who then faced humiliating and aggressive verbal attacks, as well as having stones and eggs thrown at them by the counter-demonstrators. The Committee notes the author’s claim that, apart from erecting a fence, the police otherwise remained inactive. They did not advise the counter-demonstrators not to attack, tell them to cease throwing objects at the participants and insulting them, or take any action to stop the violence or protect the participants." (para. 9.5)
For the operational reasons outlined above, the Committee held that the police exposed those taking part in the parade to verbal and physical attacks by the counterdemonstrators and failed to guarantee the applicant’s safety, contrary to the obligations under Article 7 of the ICCPR (the prohibition on torture and cruel, inhuman or degrading treatment or punishment).
Secondly, the Committee highlighted the inaction of the police in identifying the perpetrators and hearing the witnesses, as well as their disregard for the evidence brought by the applicant. According to the Committee, the fact that 5 years passed since the second attack also indicated the lack of an effective investigation required by Article 7 of the ICCPR (par. 9.6).
Thirdly, the Committee decided that the failure to adopt a clear legal framework protecting lesbian, gay, bisexual and transgender individuals from discrimination violated the principle of equality under Article 26 of the ICCPR. The Committee’s application of the principle of equality in the context of violence against LGBTQI+ individuals is worth quoting in full:
"The Committee recalls that the enjoyment of rights and freedoms on an equal footing does not mean identical treatment in every instance. The principle of equality sometimes requires States parties to take action to diminish or eliminate conditions that cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population, such as lesbian, gay, bisexual and transgender persons, prevent or impair their enjoyment of human rights, including through violent attacks against them, the State should take specific action to correct those conditions. Article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In the present case, those principles obliged the State party to enact clear legal provisions and apply them to provide effective protection to the author as a member of a targeted social group – lesbian, gay, bisexual and transgender persons – instead of leaving it to the discretion of an investigator. Failure to establish a clear legal basis left the clearly homophobic attacks against the author unpunished. It also contributed to furthering a hostile environment where the author, as a member of a targeted social group, was deprived of the opportunity to exercise his fundamental rights equally with other persons." (para 9.9)
Thank you to all who took part in our inaugural poll and in our efforts to disseminate leading decisions of the UNTBs. We will be back in December 2024 for the next one.