On June 20, 2016, a chamber of the European Court of Human Rights (ECtHR) ruled that legislation in Russia banning the promotion of homosexuality, especially to minors, violated three gay activists’ rights to the freedom of expression and the prohibition of discrimination, enshrined in articles 10 and 14, respectively, of the European Convention on Human Rights. See ECtHR, Bayev and Others v. Russia, no. 67667/09, ECHR 2017, Judgment of 20 June 2017. Regarding the violation of the activists’ freedom of expression, the Court concluded that the law did not serve a legitimate goal to protect the morals or health of the public, and further held that it impermissibly deepened the stigmatization of the country’s homosexual minority, in contravention of the European Convention. See id. at para. 83. The law, the Court concluded, is discriminatory since it provides for different treatment solely on the basis of sexual orientation. See id. at para. 90. Civil society organizations have previously warned that Russia’s gay propaganda law has spread to other countries with proposals to enact similar legislation, including in other States that are subject to the European Court’s jurisdiction, such as Armenia, Latvia, and Lithuania. [Human Rights First; HRW]
European Court Decision
A Russian court held the three gay activist applicants guilty of the administrative offense of “public activities aimed at the promotion of homosexuality among minors,” because of signs they held while protesting the law in 2009 and 2012 in violation, according to the domestic court, of Russia’s law banning the “propaganda of homosexuality,” which was federally implemented in 2013 and reportedly prohibited discussing homosexuality publicly. See id. at paras. 7-18, 26-34, 51. Their signs pronounced homosexuality normal and good, and one sign said children should know that “gay people also become great.” See id. at paras. 10, 14, 17. The applicants were fined for their administrative offenses, and they appealed to the Constitutional Court of Russia on the grounds that the law violated the principles of equal treatment and freedom of expression. See id. at paras. 11, 15, 18, 24. On appeal, the Constitutional Court held that the law did not violate these rights, and concluded that the ban was justified as a means of protecting morals and protecting against the risk of influencing children into “non-traditional sexual relations.” See id. at para. 25.
The applicants brought the present case alleging that the domestic ruling and the legislative ban on publicly discussing the identity, rights, and social status of sexual minorities violates their right to freedom of expression and is discriminatory. See id. at paras. 51, 53-54, 61, 85. Ultimately, the ECtHR ruled in favor of the activists and awarded compensation ranging from 8,000 EUR to 20,000 EUR to the applicants. See id. at paras. 94-98.
Freedom of Expression
The ECtHR rejected Russia’s claims that the ban was justified and that it pursued a legitimate aim; the Court held that the law violates the right to freedom of expression and found that it reinforces “stigma and prejudice and [encourages] homophobia, which is incompatible with notions of equality, pluralism and tolerance inherent in a democratic society.” See id. at para. 83. Russia conceded that its legislation impeded the exercise of freedom of expression of the activists, so the ECtHR directed its analysis to whether such a restriction on freedom of expression was justified. To be justified, the interference, in this case the gay propaganda law, would have to be established by law for a legitimate aim and the measures taken to achieve that aim must be necessary and proportional to the aim sought. See id. at para. 42. While the applicants argued that the law was not justified because it was not sufficiently established by the law due to it being allegedly vague and “unforeseeable in its application,” the Court focused on the necessity of the measure to achieve the purported legitimate aim and the risk of abuse of the measure. See id. at para. 63. The facts of the applicants’ cases, the Court determined, are illustrative of the impact of the law in practice and, therefore, also illustrative of proportionality of the law to its aim. See id.
The Court did not accept the State’s argument that the legislation was necessary to protect morals, and it found that there was no evidence to support the Government’s claim that promoting homosexuality would adversely affect notions of “traditional families.” See id. at paras. 46-49, 67, 71. The Court stated that Member States must take into account evolving societal perceptions when devising legislation aimed to protect morals. See id. at para, 67. Further, the Court asserted that enforcing such a rationale reflects the “predisposed bias on the part of a heterosexual majority,” which runs contrary to the widely agreed upon principle in Europe to the right to openly identify and promote any sexual identity. See id. at para. 66. The ECtHR reflected on its own jurisprudence on predisposed bias, noting that it has held that these “negative attitudes, references to traditions, or general assumptions in a particular country” are not on their own sufficient to justify unequal treatment, and that such unequal treatment would be inconsistent with the guarantee of rights under the Convention. See id. at para. 68, 70.
The Court also rejected the State’s arguments that the law was necessary to protect the health and rights of others, noting that dissemination of knowledge on sex and gender identity issues was an important part of public-health policy, and that the risk of “converting” minors to homosexuality was wholly unsubstantiated. See id. at paras. 72, 74, 78. In relation to the rights of others, the Court also concluded that the risk of exploitation of minors should be addressed through criminal liability legislation irrespective of sexual orientation, and that the activists did not impede on the right of parents to choose the education of their children since the activists did not try to engage directly with minors. See id. at paras. 79-80. Finally, the ECtHR stated that the vague language of the legislation was problematic since it could be used unpredictably and too broadly in ways that could violate individual rights. See id. at para. 83.
Prohibition of Discrimination
The ECtHR, having already found the legislation to be an unjustified intrusion into the right to freedom of expression, also held that Russia violated the right to the prohibition of discrimination by treating homosexual and heterosexual individuals differently under the law, without sufficient justification. See id. at paras. 91-92. The Court highlighted its prior jurisprudence, which demonstrated that to be discriminatory there must be a difference in treatment of persons “in relevant similar situations,” that has “no objective and reasonable justification,” meaning when it does not pursue a legitimate aim or when the means employed are not proportional to the aim. See id. at para. 88.
The ECtHR reiterated that in the specific context of discrimination based on sexual orientation, Member States must provide “particularly convincing and weighty reasons,” to justify differences in treatment. See id. at para. 89. The Court emphasized that different treatment based solely on sexual orientation is incompatible with the European Convention. See id. The ECtHR concluded that the language of the law, which stated that promoting homosexuality was “creating a distorted image of the social equivalence of traditional and non-traditional sexual relationships,” and the conclusions of the Constitutional Court, sent a clear, and unacceptable, message that homosexual relationships are inferior to heterosexual relationships. See id. at para. 90.
Relevant European Court Jurisprudence
The European Court has previously ruled on cases concerning sexual orientation and the rights to freedom of expression and non-discrimination. The Court, for example, has found that the right to freedom of expression was violated where public authorities seized all of the copies of a magazine published by a gay and lesbian association. [IJRC: Kaos] See also ECtHR, Kaos GL v. Turkey, No. 4982/07, ECHR 2016, Judgment of 22 November 2016. The Court held that the interest in protecting public morals invoked by the authorities was insufficient, despite the possibility of a significant social need to limit access to the content of the magazine to minors, because the authorities had not attempted narrower preventive measures, like barring the sale of the magazine to minors or issuing protective packaging around the magazine. See Kaos GL v. Turkey, Judgment of 22 November 2016.
The Court, though, previously refused to find a violation of the right to freedom of expression where the domestic court convicted the applicants of “agitation against a national or ethnic group” for distributing leaflets that were offensive and disparaging to homosexuals; the European Court found that the leaflet contained serious and prejudicial allegations that violated the rights of others and emphasized that discrimination based on sexual orientation was as grave as discrimination based on “race, origin, or colour.” See ECtHR, Vejdeland and Others v. Sweden, No. 1813/07, ECHR 2012, Judgement of 9 February 2012, paras. 15, 21, 49, 54, 55, 56, 59.
The Court has also found violations of the right to prohibition of discrimination based on sexual orientation in the context of the rights to freedoms of association and assembly, among others. In particular, the Court held in a 2010 ruling that bans on gay pride demonstrations in Russia violated the right to freedom of assembly and nondiscrimination. See ECtHR, Alekseyev v. Russia, Nos. 4916/07, 25924/08, 14599/09, ECHR 2010, Judgement of 21 December 2010; see also ECtHR, Bączkowski and Others v. Poland, No. 1543/06, ECHR 2007, Judgment of 3 May 2007, paras. 11, 73, 84, 101.
Russia’s Influence in the Region
Civil society organizations have reported that several countries have enacted legislation based on Russia’s federal ban on “propaganda of nontraditional sexual relations to minors,” since Russia’s enactment of the law in 2013. [Human Rights First; HRW] Russia’s federal law is in effect in Crimea, and in other countries, similar legislation has been successfully implemented or has been introduced and remains pending. For example, in 2016 in Belarus, a bill was signed into law prohibiting disseminating information “that discredits the institution of the family and marriage,” which LGBT advocates fear could be used to infringe upon their human rights. In Kyrgyzstan and Moldova, legislation limiting the freedom of expression of LGBT persons is still pending. In other countries, similar bills have been introduced and have subsequently failed to gain the necessary support to enter into force, including in Armenia, Kazakhstan, Latvia, Lithuania, and Ukraine. [Human Rights First]
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