Bayev and Others v. Russia (application nos. 67667/09, 44092/12 and 56717/12)  ECHR
On 20 June 2017, the European Court of Human Rights (the Court) ruled that Russia's so-called "gay propaganda" laws breached Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the European Convention of Human Rights (the Convention). The challenge was brought by three Russian nationals who are gay rights activists and were fined for allegedly promoting homosexuality while demonstrating in public places.
Between 2006 to 2012, a series of regional laws were enacted which prohibited the promotion of homosexuality, bisexuality and/or ‘transgenderism’ among minors and introduced administrative liability for breaches of these laws. These laws have since been replicated at a federal level by the Russian Government.
Over the course of 2009 and 2012, the Applicants staged various static demonstrations which involved holding banners with statements such as "homosexuality is normal" and "I am proud of my homosexuality" in front of a secondary school, a children’s library, and finally an administrative building where children may or may not be present. Each Applicant was found guilty of breaching the administrative offences and ordered to pay monetary fines.
After challenges to the validity of these gay propaganda laws were dismissed by the Russian Constitutional Court, the Applicants brought a challenge to the European Court of Human Rights.
The Applicants argued that the legislative provisions breached Article 10, which provides for freedom of expression, and Article 14, which provides that the rights outlined in the Convention shall be secured without discrimination. The Applicants complained about the general impact of these laws on their lives, in that they not only prevented them from campaigning for LGBTI rights but in effect required them to be aware of the presence of minors in their daily activities, in order to conceal their sexual orientation from them. The Applicants also pointed out that they had been convicted of administrative offences for displaying the most trivial and inoffensive banners.
The Russian Government conceded that the legislative provisions interfered with the right to freedom of expression, but argued that the laws served a legitimate aim and therefore were permissible under Article 10(2) of the Convention. Article 10(2) relevantly provides that the right to freedom of expression is subject to any restrictions that are prescribed by law and are necessary in a democratic society for the protection of health or morals.
The Court found that the gay propaganda laws did interfere with the Applicants freedom of expression, did not serve to advance any legitimate aim which would justify that interference, and discriminatorily targeted the LGBTI community in contravention of Articles 10 and 14 of the Convention. The Court's decision turned on whether the regional laws served a legitimate aim to protect morals, protect public health and/or protect the rights of others.
1. Protection of morals
The majority of the Court first considered the Russian Government's argument that homosexuality was incompatible with the foundations of a traditional family and that the laws were necessary to protect traditional family values. The Court emphatically disagreed with this line of argument, noting that there was a clear and growing consensus in Europe to include same-sex relationships within the concept of "family life". The Court further noted that it is incumbent upon member states to take into account changing perceptions on social, civil-status and relationship issues. The Court also found that the Russian Government failed to demonstrate how freedom of expression on LGBTI issues would devalue or otherwise adversely affect actual and existing ‘traditional families’ or compromise their future. Importantly, the Court considered that the legislative provisions possessed a pre-disposed bias towards the heterosexual majority against the homosexual minority. The Court reiterated that it would be contrary to the purpose of the Convention to predicate the rights of a minority on acceptance by the majority.
2. Protection of health and demographic targets
The Russian Government’s second argument was based on the premise that same-sex relationships posed a risk to public health. The Court questioned how restricting political freedom of expression concerning LGBTI issues would reduce health risks, particularly where the Russian Government had not demonstrated that the Applicant's messages advocated reckless or unhealthy behaviour. Rather, the Court considered that disseminating information on sex and gender issues raises awareness of any associated risks and that this information could be an indispensable component of disease-prevention campaigns and of a general public health policy.
The Court was also quick to dismiss the Russian Government's argument that promoting homosexuality would prevent achieving desired demographic targets in Russia. The Court held that population growth is based on a multitude of conditions (including social security rights, childcare and economic prosperity) and suppression of information about same-sex relationships is not a method to reverse a negative demographic trend.
3. Protection of the rights of others
Finally, the Russian Government argued that minors need to be shielded from information that could convert them to a homosexual lifestyle and make them vulnerable to abuse. Accordingly, it was argued that the freedom of expression of LGBTI activists encroached on the personal autonomy of minors who are susceptible to exploitation, and also encroached on the educational choices of their parents.
The Court disputed this argument on three grounds. First, the Russian Government was unable to provide any scientific evidence that one's sexual orientation is susceptible to change under external influence. Second, Russian law already provides criminal liability for "lecherous actions against minors" and those provisions are applicable irrespective of the sexual orientation of those involved. The Court considered that the Russian Government did not advance any reasons why it considered that minors were more vulnerable to abuse in the context of homosexual relationships than heterosexual ones. Third, the Court reiterated that the Convention does not guarantee the right not to be confronted with opinions that are opposed to one's own. It was held that nothing in the Applicants’ actions diminished the right of parents to enlighten and advise their children according to their own religious or philosophical convictions. The Court considered that the minors who witnessed the Applicants’ campaigns were exposed to the ideas of diversity, equality and tolerance, which all aid social cohesion.
The Court found that the legal provisions in question do not serve to advance the legitimate aim of the protection of morals, and that those measures are likely to be counterproductive in achieving the declared legitimate aims of the protection of health and the protection of rights of others. The Court found that the laws reinforced prejudice and encouraged homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society. Therefore the Court found that the laws violated Article 10 of the Convention. For similar reasons the Court also considered the laws inherently discriminatory to homosexual people in contravention of Article 14 of the Convention.
Judge Dmitry Dedov, a Judge from the Russian Federation, was the only dissenting voice in the judgment. His reasoning was largely based on the balancing of rights between the freedom of expression and the duty to respect the private life of children, however he made some concerning remarks about the LGBTI community Judge Dedov stated that the mere existence of homosexuality could make minors "interested in… homosexual relations". He made further comments drawing links between homosexuality and paedophilia, stating that "non-traditional sex" increased the vulnerability of children to sexual abuse.
This decision confirms that the Court will not allow states to hide behind their margin of appreciation to enact oppressive and discriminatory laws particularly in relation to LGBTI issues. It also highlights growing acceptance of diverse and inclusive definitions of "families" and "relationships".
However, the submissions by the Russian Government continue to demonstrate a deep misunderstanding and lack of acceptance of the LGBTI community. This is not the first time that the Russian Government has defended a claim of this nature on the international stage. The Court expressed concern that the Russian Government had failed to comply with the judgment in the 2010 case of Alekseyev v. Russia (nos. 4916/07 and 2 others, 21 October 2010) regarding the prohibition on Pride marches in Moscow in 2006, 2007 and 2008. In that case the Russian Government also argued this was necessary and authorised under a similar provision in Article 11(2) (freedom of assembly) regarding the protection of morals and children. For similar reasons to those in this case the Court found that the Russian Government breached Articles 11 and 14 of the Convention.
It is unclear how much impact this decision will have or whether there will be changes to the regional and federal laws given the Russian Justice Minister has publicly stated that the Government will appeal the Court's decision.
The full decision can be found here.
Stephanie Tran is a Solicitor at DLA Piper