Communicated on 6 July 2017

THIRD SECTION

Application no 42395/15 Dmitriy Olegovich CHECHETKIN against Russia lodged on 17 August 2015

STATEMENT OF FACTS

The applicant, Mr Dmitriy Olegovich Chechetkin , is a Russian national who was born in 1986 and lives in Washington, DC, United States of America. He is represented before the Court by Ms O. Tseytlina , a lawyer practising in St Petersburg.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Attack on “Rainbow Tea Social” event

On 3 November 2013 an HIV prevention centre in St Petersburg hosted a “Rainbow Tea Social”, a weekly event held to support LGBT people. About twenty participants, including the applicant, were present.

At about 7.30 p.m. two young men in hoods armed with a baseball bat and an air pistol entered the centre. In the corridor they were stopped by Ms P, one of the organisers of the event. The applicant was nearby. As soon as he turned his head in their direction, one of the intruders shot him in the eye. Ms P. started running away and the attacker fired several shots in her direction The applicant crouched down, covering the injured eye with a hand and attempted to hide. One of the attackers shouted at him: “Where are you going, you faggot?” The two men then kicked the applicant on his shoulder and leg and left the centre. The police and an ambulance were called.

The applicant was taken to Mariinskaya Hospital in St Petersburg for eye surgery. A pellet was removed from his eye, but the applicant lost his sight in that eye. Five days later he was discharged from the hospital.

2. Criminal investigation

In the meantime, on 4 November 2013, at the request of Ms P., the police opened a criminal case in respect of the attack. The incident was classified as a disorderly act committed by a group (Article 213 § 2 of the Criminal Code of Russia – hereinafter “the CC”).

On 12 November 2013 the applicant was granted victim status.

The next day he was interviewed by the police. The applicant said that on 3 November 2013 he had attended a regular LGBT meeting. He described the attack, and cited the insult addressed to him by one of the assailants. The applicant told the police that the organisers of the “Rainbow Tea Social” events had been receiving intimidating ph one calls before the 3 November 2013 event, and suggested that the attack had been a hate crime against LGBT people.

On 19 November 2013 a forensic expert, at the request of the investigating authorities, assessed the seriousness of the applicant ’ s injuries. She concluded that the applicant had sustained grave damage to his health.

The police questioned Ms P. and thirteen other participants in the 3 November 2013 “Rainbow Tea Social” event.

On 26 December 2013, having considered the gravity of the applicant ’ s injuries and those of Ms P., the investigator classified the offence against the former as the intentional infliction of serious bodily harm for disorderly motives (Article 111 § 2 (d) of the CC); the investigator classified the offence and that against Ms P. as aggravated beating (Article 116 § 2).

On the same day the investigator refused a request lodged by the applicant ’ s lawyer for the motive of hatred to be added to the legal classification of the offences; furthermore, the investigator refused a request lodged by the applicant ’ s lawyer for her to be permitted to make copies of the applicant ’ s interrogation records, of the decision to open a criminal case, and of the decision to order an expert examination of the applicant ’ s injuries.

The applicant ’ s lawyer brought an action in the Leninskiy District Court of St Petersburg, challenging those refusals .

On 5 March 2014 the Leninskiy District Court dismissed the lawyer ’ s action. It found that the investigator had acted lawfully and that at such an early stage of the proceedings it had been impossible to reach a final conclusion on the legal classification of the offence in question.

On 21 April 2014 the St Petersburg City Court, after an appeal by the applicant ’ s lawyer, remitted the issue regarding her access to the case-file for fresh examination by the District Court. The remainder of the complaint was dismissed.

On 30 May 2014 the District Court granted the applicant ’ s lawyer access to the case-file.

In the meantime, on 4 March 2014, the authorities suspended the investigation, on the grounds that they had been unable to find the attackers.

Eight days later that decision was overturned by a higher police authority, which was unsatisfied that the investigation had been sufficiently thorough. It noted that the investigator in charge should have investigated owners of air pistols, people who demonstrated intolerance towards LGBT people, and those who had complained about LGBT meetings being held in the community centre. It was also recommended that footage from video surveillance cameras installed nearby be examined and to check whether football fans had called for violence against LGBT people on the Internet.

On 26 April 2014 the investigating authorities again suspended the investigation. It does not appear that any measures listed in the decision of 12 March 2014 had been undertaken.

On 8 May 2014 the Admiralteiyskiy district of St Petersburg prosecutor ’ s office (“the Prosecutor ’ s Office”) overturned the decision of 26 April 2014, referring to the ineffectiveness of the investigation. It was pointed out that to identify the attackers the investigator should consider material adduced in respect of all criminal cases involving violence against LGBT people in St Petersburg, and to obtain, from the Police Centre for Combating Extremism, a list of persons involved in anti-LGBT events.

It appears that the investigator contacted the Police Centre against Extremism and obtained the names of four persons who might have been involved in the attack.

By a decision of 16 July 2014 the investigation was suspended for a third time. The applicant was not informed of that decision.

On 30 September 2014, in response to an enquiry by the applicant ’ s lawyer about the progress of the investigation, the authorities sent her a copy of the decision of 16 July 2014. A request lodged by the lawyer to be allowed to study the case file was refused. On 21 October 2014 she brought an action in the District Court, challenging the decision to suspend the investigation and to refuse her access to the case file.

Two days later the Prosecutor ’ s Office quashed the decision of 16 July 2014, citing the investigator ’ s failure to interview the persons mentioned by the Police Centre against Extremism and to obtain their fingerprints to compare with the fingerprints found at the crime scene. The applicant was not informed about the decision taken to quash the decision of 16 July 2014.

The lawyer amended her claim and asked the court to declare unlawful the authorities ’ failure to inform her of the decision of 23 October 2014. She also asked that the investigator classify the offence as a hate crime and undertake further investigative actions.

On 28 November 2014 the District Court examined the action. It declared unlawful the failure of the investigator to inform the applicant of the decisions of 16 July 2014 and 23 October 2014. The remainder of the claim was dismissed.

On 10 February 2015 the St Petersburg City Court quashed that decision on procedural grounds and remitted the case for fresh examination.

On 6 March 2015 the District Court terminated the proceedings in respect of the unlawfulness of the decision of 17 July 2014 as it had already been annulled by the Prosecutor ’ s Office. The remainder of the claim was dismissed. On 7 May 2015, after an appeal by the applicant, the St Petersburg City Court upheld the judgment.

In the meantime, on 26 March 2015 the investigative authorities adjourned the investigation for the fifth time. It appears that the proceedings are still ongoing.

B. Relevant domestic law

The relevant provisions of the Criminal Code, as in force at the material time, read as follows:

Article 66 Aggravated circumstances

“1. Aggravated circumstances are:

...

e) committing a crime on the grounds of political, ideological, racial, national, or religious hatred, or on the grounds of hostility or hatred towards any social group.”

Article 111 Intentional infliction of serious injuries

“1. The intentional infliction of serious injuries ... is punishable by up to eight years ’ deprivation of liberty.

2. The same act if committed:

...

d) for disorderly motives;

e) on the grounds of political, ideological, racial, national, or religious hatred, or on the grounds of hostility, or hatred towards any social group;

...

is punishable by up to ten years ’ deprivation of liberty, [with or without] the [subsequent] restriction of liberty for up to two years.”

Article 213 Disorderly Acts

“1. Disorderly acts, that is to say serious breaches of public order which display flagrant disrespect towards the community:

a ) combined with the use of a weapon or objects used as a weapon;

b) on the grounds of political, ideological, racial, national, or religious hatred, or on the grounds of hostility or hatred towards any social group;

is punishable by a fine of 300,000 to 500,000 Russian roubles , or by a fine in the amount of two to three times a convict ’ s yearly salary, or by community service for a maximum total length of 480 hours, or by correctional labour for a term of between one and two years, or by forced labour for a maximum term of five years, or by deprivation of liberty for a term of the same length.

2. The same act, if committed by a group of individuals acting in conspiracy or by an organised group, ... is punishable by a fine of between 500,000 and 1,000,000 Russian roubles , or by a fine in the amount of between three and four times a convict ’ s yearly salary, or by forced labour for the maximum term of five years, or by the deprivation of liberty for up to seven years.”

C. Human Rights Watch Report, 15 December 2014

The relevant part of the report reads as follows:

“ Russia ’ s Criminal Code establishes hate motivation as an aggravating circumstance to certain kinds of crimes. The Russian law enforcement and justice system is therefore capable of prosecuting hate crimes committed against LGBT people.

Under article 63 of the Russian Criminal Code, the “commission of a crime by reason of political, ideological, racial, national or religious hatred or enmity or by reason of hatred or enmity with respect to a social group” triggers additional penalties to such crimes as murder, inflicting bodily injury, battery, and the like. The Criminal Code does not explicitly list sexual orientation and gender identity among the types of enmity on which a hate crime can be based. However, the law allows law enforcement officers and judges to determine whether a crime was motivated by hatred of “a social group,” which could encompass LGBT people. No aspect of the law prevents law enforcement agencies from treating LGBT people as a “social group” and applying article 63 in the investigation and prosecution of homophobic violence, but they clearly have chosen not to do so.

In replies to letters from Human Rights Watch, Russian law enforcement authorities confirmed that this aggravating circumstance has not been applied to prosecute crimes against LGBT people who were attacked for their sexual orientation or gender identity.

LGBT activists say that Russia ’ s hate crime laws are inadequate for prosecuting homophobic crimes. The absence of the definition of a “social group” in Russian legislation, which would encompass LGBT people and allow Russian prosecutors and courts to apply hate crime laws against homophobic crimes creates an insurmountable barrier for victims and their lawyers. Courts are expected to rely on experts to tell them whether LGBT people comprise a social group. In the absence of a definition of a “social group” accepted in Russia, different experts give different opinions. Considering the prevalence of homophobic sentiments in public life, these opinions are not favorable to victims of anti-LGBT crimes.

In several cases documented by the LGBT group Coming Out, prosecutors pressed extremism charges against perpetrators of homophobic violence, but courts dismissed the cases because they reasoned that LGBT people were not a recognized social group.

In its response to Human Rights Watch ’ s letter regarding investigations into homophobic violence, the Russian prosecutor general ’ s office confirmed that according to law enforcement data no hate crimes against LGBT people were registered from 2012 to May 2014. In response to Human Rights Watch ’ s question, the prosecutor general ’ s office did not explain why article 63 has not been applied in such cases.

The letter also stated, “Russian law does not provide for the registration of police complaints from LGBT people and collection of statistics about the number of hate crimes specifically committed against lesbians, gay, bisexual or transgender individuals.” Therefore, the prosecutor general ’ s office could not provide this information to Human Rights Watch, since no such data existed.

Likewise, the Russian Ministry of Interior informed Human Rights Watch that it does not gather any “statistical data about crimes committed against lesbian, gay, bisexual and transgender people, as well as about results of investigations, prosecution and measures to eliminate the consequences of committed crimes in the framework of the statistical reporting by the Russian Interior Ministry.”

The Investigative Committee did not include any information about the collection of hate crime data in their response to Human Rights Watch ’ s written inquiries.”

COMPLAINT

The applicant complained under Article 3, taken in conjunction with Article 14 of the Convention, of the authorities ’ failure to investigate adequately the attack of 3 November 2013, that attack having been motivated by hatred against LGBT persons, and more generally about the refusal to consider LGBT people as a social group, to register offences against them as hate crimes and to combat anti-LGBT violence.

QUESTIONS

1. Having regard to the procedural protection from inhuman and degrading treatment, was the investigation in the present case in breach of Article 3 of the Convention? In particular:

a) was the investigation thorough? In particular, did the investigating authorities comply with the recommendations given by their superiors as to specific measures to take?

b) did the authorities take into account the sensitive nature of the case before them? Did they duly consider the possibility that the offence could have been a hate crime?

c) was the applicant informed in a timely manner of the decisions taken by the investigator? Did the applicant have access to the prosecution file?

d) was the length of the investigation in breach of the requirement of diligence and expedition set by the Court in its case-law?

2. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the grounds of his sexual orientation, contrary to Article 14 of the Convention, read in conjunction with Article 3 of the Convention?

3. The Government are asked to provide a copy of the investigation file. In addition they are asked to submit data collected by the police on a number of hate crimes against LGBT individuals committed in Russia between 2013 and 2016, if such data is available.