The European Court of Human Rights (ECtHR) has found Russia’s so-called ‘gay propaganda law’ amounting to violation of the rights to freedom of expression and prohibition of discrimination, enshrined in Articles 10 and 14 respectively, of the European Convention of Human Rights (ECHR).
Three Russian gay rights activists, Nikolay Bayev, Aleksey Kiselev, and Nikolay Alekseyev, lodged proceedings challenging the Russian law adopted in June 2013, “for the Purpose of Protecting Children from Information Advocating Denial of Traditional Family Values”. The legislation made it illegal to engage in any event or act that attempted to “promote” homosexuality to minors. As a protest against these laws, the applicants staged three separate demonstrations between 2009 and 2012, during which they held banners stating that homosexuality is natural or normal, and not a perversion. The applicants were subsequently fined for their administrative offences. They however appealed to the Constitutional Court of Russia on the grounds that the law violated the principles of equal treatment and freedom of expression. On appeal, the Constitutional Court held that the law did not violate their rights and concluded that the ban was justified as a means of protecting “public morals”.
Finding in favour of the applicants, the ECtHR rejected the government’s claim that regulating public debate on LGBT issues had been justified by the need to protect morals, and that it had failed to demonstrate how freedom of expression would devalue “traditional families”, as Russian officials had claimed. According to the Court there was a “clear European consensus about the recognition of individuals’ right to openly identify themselves as gay, lesbian or any other sexual minority, and to promote their own rights and freedoms”. Similarly, the Court failed to see how a restriction on potential freedom of expression concerning LGBT issues would be conducive to a reduction of health risks. It found that disseminating knowledge on sex and gender identity issues and raising awareness of any associated risks and of methods of protecting oneself against those risks, presented objectively and scientifically, would be an indispensable part of a disease-prevention campaign and of a general public-health policy.
On the issue of non-discrimination, the Court emphasised that “differences based solely on considerations of sexual orientation” are unacceptable under the Convention. The Court observed that the legislative provisions, 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 opposite-sex relationships. Such laws, according to the Court, “reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society”. Risk of exploitation and corruption of minors was equally relevant in the context of opposite-sex relationships, and Russian law already provides for criminal liability to protect vulnerable minors that is applicable irrespective of sexual orientation.
The Court ordered Russia to pay the three applicants a total of €43,000. The Russian Government intends to appeal the ECtHR decision and has three months to do so.
Click here for judgement in Bayev and OR’s v Russia.