‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

zaterdag 6 april 2013

Russia's anti-gay 'propaganda law' and the European Court of Human Rights

By Paul Johnson - Anniversary Reader in Sociology, University of York, United Kingdom 

If you live in the United Kingdom (as I do) the recent introduction of ‘anti-propaganda’ laws in Russia, Ukraine and elsewhere relating to homosexuality will remind you of one thing: section 28 of the Local Government Act 1988 which created a ‘prohibition on promoting homosexuality’. Section 28 stated that a local authority ‘shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality’ or ‘promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship’. Until its repeal (2000 in Scotland, and 2003 in England and Wales) section 28 had the effect of, among other things, limiting the discussion of homosexuality in schools by teachers and preventing local authorities from providing support services to gay and lesbian young people. Section 28 is remembered in the UK, almost universally by those who proposed and opposed it during its existence, as an ineffective and harmful piece of legislation.

As gay men and lesbians in the UK and throughout Western Europe emerge from the darkness of this type of legislative discrimination it is with understandable horror that we look at the increasing development of similar laws in nearby neighbouring states. These laws are much wider in scope than provisions such as section 28 because they regulate the public expression of all citizens and not just public officials. In this post I will examine the development of anti-propaganda laws in the Russian Federation. My aim is to consider the existence and enforcement of these laws in relation to the existing case law of the European Court of Human Rights (ECtHR). Russia is contracted to the European Convention on Human Rights (ECHR) and is bound by the ECtHR’s jurisprudence on freedom of expression and sexual orientation. I will examine the extent to which the ECtHR’s jurisprudence might be used to contest the anti-propaganda laws in Russia and how this jurisprudence could be evolved in the future to better protect gay men and lesbians in Russia and elsewhere.

The Anti-Propaganda Laws in Russia

Since 2006, 9 regions of the Russian Federation have enacted laws that prohibit the propaganda of homosexuality among minors (the Republic of Bashkortostan, the regions of Krasnodar, Arkhangelsk, Kostroma, Magadan, Novosibirsk, Ryazan and Samara, and the City of St. Petersburg). The Kalingrad region has also enacted a similar law but it is not limited to minors. The Ryazan Oblast was the first region to enact an anti-propaganda law by amending its Act of Administrative Offences (Section 3.10) to criminalize ‘public acts aimed at promoting homosexuality among juveniles’. As a result of this law several gay and lesbians activists have been fined for protesting against homophobia in public by holding up placards. The United Nations Human Rights Committee held in November 2012, in Irina Fedotova v Russian Federation, that a conviction under the Ryazan Oblast Law amounted to a violation of rights under article 19(2) (freedom of expression) read in conjunction with article 26 (equality before the law) of the International Covenant on Civil and Political Rights. Nevertheless, a federal law which prohibits ‘spreading homosexual propaganda among minors’ was subsequently passed at First Reading by the Duma (federal parliament) (by 388 to 1) and a Second Reading is scheduled for the middle of this year.

The Constitutional Court of the Russian Federation has given its approval to the anti-propaganda laws. In a ruling on 19th January 2010 (no. 151-O-O) the Constitutional Court upheld the Ryazan Oblast law as prohibiting ‘the activity aimed at purposeful and uncontrolled dissemination of the information which is able to cause damage to moral and spiritual development or to the health of minors, inducing them to form warped perceptions that traditional and non-traditional marital relations are socially equal, bearing in mind that minors due to their age are not able to estimate such information critically and indecently’. The Constitutional Court stated that the anti-propaganda laws do not violate any rights established by the Constitution of the Russian Federation.

The Supreme Court of the Russia Federation has also given its tacit approval to the anti-propaganda laws by rejecting appeals against convictions in the lower courts. The Supreme Court has emphasized that the regional laws do not prohibit all public expression of homosexuality and do not interfere with the right to obtain and convey general and neutral information regarding homosexuality. The Supreme Court has stated that the anti-propaganda laws do not prevent the holding of public events or debates but regulate the discussion of homosexuality specifically in relation to minors.

The Russian Government has stated that the measures outlined in the anti-propaganda laws are aimed at ensuring the intellectual, moral and psychological safety of children and are in compliance with federal law and the Constitution. The Government has also reiterated the view of the Supreme Court that the laws do not unnecessarily impair citizens’ rights to freedom of association and assembly but provide a well-balanced and proportionate response to the need to protect children.

Several groups and organizations have responded by stating that the existence of the anti-propaganda laws is incompatible with international human rights standards. The International Commission of Jurists, for example, have stated that the laws are not compatible with the right to freedom of expression because: they are so vague that they fail the requirement that a restriction be ‘prescribed by law’; they are not necessary for a legitimate purpose or proportional to achieving that purpose; they discriminate on the basis of sexual orientation. The International Commission of Jurists, along with the International Lesbian and Gay Association, have argued that the laws are in violation of the jurisprudence of the ECtHR in this area. In a previous piece for Jurist I also argued that the anti-propaganda laws can be understood to violate standards established by the ECtHR in respect of freedom of expression.

How does existing ECHR jurisprudence relate to the anti-propaganda law?

The most relevant aspect of the ECHR to a consideration of the anti-propaganda laws in Russia is Article 10 that guarantees the right to freedom of expression. The rights guaranteed by Article 10 include the right to hold opinions and to receive and impart information and ideas without interference by a public authority. Like the other qualified rights of the ECHR, Article 10 specifies that a public authority may only interfere with an individual’s right to freedom of expression when it is prescribed by law, pursues one of a number of legitimate aims and is necessary in a democratic society. Since its earliest judgments, the ECtHR has consistently held that freedom of expression is a vital element of a democratic society and, as such, includes the right to convey ideas that may be unpopular and offensive to others.

Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 […], it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued (Handyside v the United Kingdom).

However, whilst freedom of expression is regarded by the ECtHR as vital in a democratic society, it is striking that it has never found in favour of a gay or lesbian applicant who has lodged an Article 10 complaint. Aside from cases that involve complaints about the regulation of discussions of homosexuality by journalists and academics (Kobenter and Standard Verlags GMBH v Austria; Porubova v Russia; Sapan v Turkey), the ECtHR has never recognized an interference with the public expression of sexual minorities to be a violation of Article 10. Although applicants have invoked Article 10 in a range of complaints relating to various aspects of sexual orientation and expression, the ECtHR has been unwilling to extend this protection to homosexuals. For this reason, the ECtHR’s Article 10 jurisprudence is unhelpful on the specific issue of restricting freedom of expression on the grounds of sexual orientation.

Because of this, opponents of the Russian anti-propaganda laws have looked to ECHR jurisprudence on Article 11. This is not altogether surprising since the ECtHR has held that freedom of expression is a fundamental aspect of the rights protected by Article 11. In Ezelin v France, the ECtHR determined that Article 10 is to be regarded as a lex generalis in respect of Article 11, which is a lex specalis, and therefore the ‘protection of personal opinions, secured by Article 10 [...], is one of the objectives of freedom of peaceful assembly as enshrined in Article 11’. Article 11 provides for the right to freedom of peaceful assembly and to freedom of association with others. No restrictions on these freedoms are allowed other than when they are prescribed by law and are necessary in a democratic society for the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. In recent years the ECtHR has issued three significant Article 11 judgments in respect of complaints about restrictions placed on assembly and association on the grounds of sexual orientation. In Bączkowski and Others v Poland, Alekseyev v Russia, and Genderdoc-M v Moldova, the Court has upheld Article 11 complaints about restrictions placed on ‘gay pride’ events.

The ECtHR’s case law on Article 11 is undoubtedly relevant and significant in respect of the Russian anti-propaganda laws. The key case is Alekseyev v Russia, in which the ECtHR considered a complaint about the repeated refusals by public authorities in Moscow to allow the applicant to hold a gay pride event. The Russian government argued that the public authorities had acted lawfully and within their margin of appreciation when refusing permission for the event. Furthermore, in light of statements made by several religious groups suggesting that the proposed assemblies would cause moral offence and raise significant safety issues, the government argued that the authorities were pursuing the legitimate aims of the protection of public safety and the prevention of disorder, the protection of morals, and the protection of the rights and freedoms of others. The ECtHR upheld the applicant’s complaints, finding a violation of Article 11 alone and Article 14 taken in conjunction with Article 11. In its review, the ECtHR significantly evolved its jurisprudence on freedom of assembly in respect of sexual orientation. From the outset, the ECtHR dispensed with the parties’ disputes regarding the legality and legitimacy of the ban. The Court stated that it could ‘dispense with ruling on these points because, irrespective of the aim and the domestic lawfulness of the ban, it fell short of being necessary in a democratic society’. The elevation of the necessity test in this way is extremely important because it decisively articulates the view that the existence of domestic law designed to curtail the public assembly of homosexuals does not in itself provide a justification for interference with the Article 11 rights of homosexuals. Nor do the legitimate aims prescribed by Article 11(2) provide a secure basis for justifying the restriction of the peaceful assembly of homosexuals. Whilst the Russian government argued that the interference by public authorities was justified because it pursued the legitimate aims of ‘public safety’ and ‘the protection of health or morals or for the protection of the rights and freedoms of others’, the ECtHR stated that, although it would not consider the question of legitimacy, ‘in any event the ban was disproportionate to either of the two alleged aims’.

The most significant aspect of Alekseyev in respect of the anti-propaganda laws is that it explicitly rejects the claim that limiting freedom of assembly on the grounds of sexual orientation is necessary in a democratic society in order to protect minors. The Russian government had argued that gay pride events ‘should be banned as a matter of principle, because propaganda promoting homosexuality was incompatible with religious doctrines and the moral values of the majority, and could be harmful if seen by children or vulnerable adults’. The ECtHR decisively reject this claim, stating that:

There is no scientific evidence or sociological data at the Court's disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities' social status, would adversely affect children or “vulnerable adults”. On the contrary, it is only through fair and public debate that society may address such complex issues as the one raised in the present case. Such debate, backed up by academic research, would benefit social cohesion by ensuring that representatives of all views are heard.

In this sense, the ECtHR has implicitly endorsed the view that all members of society (including minors) benefit from open public debate that is comprised of a range of views.

In its subsequent supervision of the execution of the Alekseyev judgment, the Committee of Ministers of the Council of Europe have included a consideration of the development of the anti-propaganda laws. This clearly indicates to the Russian government that the Committee of Ministers regards the Alekseyev judgment as relevant to the issue. On 7th March 2013 the Committee of Ministers:
"expressed serious concerns with regard to the current legislative work aimed at introducing prohibition of the "promotion of homosexuality" at federal level and considered that the adoption of such a law could raise serious questions as to the compliance by the Russian Federation with its obligations under Article 46 of the Convention."
The Committee of Ministers also:
"called upon the Russian authorities to give full consideration to the future Venice Commission Opinion “on the issue of the prohibition of so-called propaganda of homosexuality in the light of recent legislation in some Council of Europe member States, including the Republic of Moldova, the Russian Federation and Ukraine” before taking a final stand on these issues."
Problems with current ECHR jurisprudence

Whilst Alekseyev v Russia can be used to make a compelling case that anti-propaganda laws in Russia are in violation of the ECHR it is also important to recognize some limitations in ECHR jurisprudence. The Alekseyev judgment is not a consideration of freedom of expression per se but is primarily concerned with the right to exercise freedom of assembly for the purposes of campaigning for gay and lesbian rights. Because of this, the Russian government has stated that domestic judicial interpretations of the term ‘propaganda’ establish that the anti-propaganda laws do not interfere with the right to freedom of assembly that is protected by the Alekseyev judgment. The government has stated that in the majority of regions that have adopted the anti-propaganda laws there have been no refusals to hold gay pride events on these grounds. It has further stated that in those regions where applicants have been refused permission to hold gay pride events on anti-propaganda grounds that public authorities have accommodated organizers and enabled events to take place at different times and places. The Russian government has cited several decisions from domestic lower courts that have held that forms of public expression relating to homosexuality (for example, picketing near a school with a sign saying ‘we do not choose our sexual orientation’) are not propaganda. However, the claim that anti-propaganda laws are narrowly interpreted and restrictively enforced has been disputed by NGOs who argue that the laws are operationalized indiscriminately on the basis that homosexuality is immoral and should not be discussed in the public sphere. It is claimed that laws which give expression to a long-standing (but widely discredited) idea that homosexuality is a threat to the moral development of children will be used to regulate a wide range of public speech in the future.

The absence of any Article 10 and the limited (although important) Article 11 jurisprudence relating to sexual orientation gives rise to concerns about how the ECtHR will approach a complaint about the anti-propaganda laws (it has one such complaint outstanding: Bayev v Russia, no. 67667/09, lodged 7 November 2009). In an ECtHR review, the Russian government would defend the laws as being narrow in scope, designed to meet a legitimate aim, and a proportionate response to meeting a pressing social need. The government would likely draw upon the emerging jurisprudence of the domestic courts to argue that there are clear delimitations in regulating specific types of expression about homosexuality that are regarded as detrimental to minors. Leaving aside the judgment in Alekseyev for the moment, there is nothing in the ECtHR’s case law on sexual orientation that explicitly suggests that it would regard the type of curtailment of freedom of expression which the anti-propaganda laws create as a violation of Article 10. On the contrary, ECtHR case law shows that it has often rejected Article 10 complaints relating to homosexuality precisely because of claims made about the necessity of protecting children from moral corruption. The most well known example of this is in Handyside v the United Kingdom in which the ECtHR considered an Article 10 complaint about the conviction of a publisher for publishing a school book that contained a discussion of homosexuality:

Basically the book contained purely factual information that was generally correct and often useful, as the Quarter Sessions recognised. However, it also included, above all in the section on sex and in the passage headed ‘Be yourself’ in the chapter on pupils [. . .], sentences or paragraphs that young people at a critical stage of their development could have interpreted as an encouragement to indulge in precocious activities harmful for them or even to commit certain criminal offences. In these circumstances, despite the variety and the constant evolution in the United Kingdom of views on ethics and education, the competent English judges were entitled, in the exercise of their discretion, to think at the relevant time that the Schoolbook would have pernicious effects on the morals of many of the children and adolescents who would read it.

Handyside is 37 years old and it is to be hoped that the ECtHR would no longer regard it reasonable to think that a factual discussion of homosexuality would have pernicious effects on the morals of children. However, since its case law does not show any concrete evolution in this area there is some uncertainty in how it will regard the anti-propaganda laws. Whilst it seems highly likely that the ECtHR would deem restrictions on public assemblies (such as gay rights marches) by anti-propaganda laws to clearly fall within the sphere of jurisprudence developed in Alekseyev v Russia, it is less certain whether it would consider, for example, the distribution of factual materials about homosexuality to children (like the school book in Handyside, or the material once regulated by Section 28 in the UK) as a violation of Article 10. Such material might be interpreted to go beyond ‘the mere mention of homosexuality, or open public debate about sexual minorities’ social status’ that is discussed in Alekseyev.

There is a chink of light to be found in the recent judgment in Vejdeland and Others v Sweden in which the ECtHR endorsed the view that children need protection not from factual material about homosexuality but from anti-gay hate speech. That judgment can be interpreted as a reversal of the principle established in Handyside insofar as the ECtHR indicates that children need moral protection from homophobia rather than homosexuality. The judgment in Vejdeland gives practical expression to Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity which requires ‘safeguarding the right of children and youth to education in a safe environment, free from violence, bullying, social exclusion or other forms of discriminatory and degrading treatment related to sexual orientation or gender identity’. Whilst there is therefore every reason to be optimistic that the ECtHR would uphold an Article 10 complaint about Russia’s anti-propaganda laws there is also a need to recognize (lest those of us in Western Europe who support gay and lesbian rights become complacent) that ECHR jurisprudence in this area is ‘thin’ and needs significant evolution.

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