On 28 July, the Human Rights Centre of Ghent University submitted a third party intervention in connection to two Russian cases, namely Nikolay Alekseyev and Movement for Marriage Equality v Russia and Nikolay Alekseyev and Others v Russia. Both cases involve the domestic Russian court upholding the refusal by the authorities to register two LGBTI rights organisations on the grounds that they were considered ‘extremist organisations’ due to the allegedly immoral character of their activities. The Human Rights Centre (HRC) have sought leave of the European Court of Human Rights (‘ECtHR’) to intervene on the grounds that this constitutes an unjustifiable restriction on the freedom of association (Article 11 ECHR).
The two principal matters laid out in the third party intervention are firstly, the need to analyse the legitimate aim used to justify a restriction of the right of freedom of association; and secondly, the need for considerations in relation to Article 14 ECHR (prohibition of discrimination) due to stereotyping and stigmatising judicial decisions at a domestic level.
The HRC are of the opinion that States sometimes rely on broad interpretations of the legitimate aims that may justify restricting certain rights. Governments should not use these wide interpretations as a smokescreen for hiding the true purpose of the limitations, e.g. suppressing opposition or repressive/discriminatory practices.
In considering Article 11 ECHR, the HRC call on the ECtHR to interpret the justifications strictly, stating that “public order refers to the sum of rules ensuring the peaceful and effective functioning of society” and that “national security refers to the political independence and/or territorial integrity of the State”. They went on to say that public morality does differ widely depending on different societies and cultures, but recognised that the concept of morals cannot be derived exclusively from a single tradition. In relation to the cases under discussion, the HRC submitted that the domestic courts undertook a discriminatory interpretation of the law, and therefore this cannot be a genuinely legitimate aim. Thus the ECtHR should, in such a case, give a clear message that if the policy objective is itself illegitimate under the ECHR, it therefore cannot justify any restriction of rights, and there is consequently no need to verify whether it is ‘necessary in a democratic society’.
The HRC further suggested that Articles 8-11 should be read in conjunction with Article 14, meaning that considering an inherently discriminatory aim as ‘legitimate’ would be incompatible with the Convention. They noted that “the Court has previously stressed that democracy does not simply mean that the views of the majority override those of the minority, nor that the exercise of Convention rights by the minority is made conditional upon the acceptance of the majority”. In other words, the fact that a portion of Russian society would be shocked and offended by homosexual acts does not justify the government denying the LGBTI community their freedom of association.
It was also submitted by the HRC that the Court should consider Article 14 jointly with Article 6 (right to a fair trial). This is on the basis that if the domestic judges are discriminating and using harmful stereotypes, this is incompatible with the independent and impartial role of the judiciary. The HRC also focuses on the positive obligations enshrined in Article 14 – that States must facilitate a culture of acceptance and encourage tolerance and debate. Different treatment is allowed and encouraged in order to correct ‘factual inequalities’, and the HRC submit that the negative stereotypes and discrimination against LGBTI people observed here constitute ‘factual inequalities’ which the State must work towards to correct.
The intervention concludes by accepting that the issue at stake was not whether Europe can force Russia to accept full equality. It is rather that it cannot be justified that the Russian state would prevent its people from debating the matter.
Click here to read the commentary on this issue.
Click here to read the full text of the third party intervention.