Strasbourg Observers

Human Rights Centre submits third party intervention in case concerning LGBT rights activism

August 19, 2016

The Human Rights Centre of Ghent University[1] has submitted a third party intervention in the cases of Nikolay Alekseyev and Movement for Marriage Equality v. Russia and Nikolay Alekseyev and Others v. Russia. The case concerns the refusal by the Russian authorities to register two LGBT rights organisations because they were considered extremist organisations on account of the allegedly immoral character of their activities. The full text of the third party intervention can be found here, the main arguments are summarized hereunder.

First of all, the Court is invited to take the legitimate aim analysis seriously by thoroughly scrutinizing the question whether the interference with the applicants’ freedom of association rights pursues a legitimate aim in the sense of Article 11 § 2 of the ECHR. In particular, it is argued that the Court should verify whether the aim invoked by the authorities as a justification of the interference can genuinely be considered as legitimate or whether it should rather be considered as an ulteriorly homophobic or discriminatory one. In the latter case, this should in itself suffice to find a violation of Article 11 on account of the illegitimacy of the interference, discarding the need to verify whether such interference is “necessary in a democratic society”.

Secondly, the Court is invited to examine the case from the viewpoint of Article 14 (prohibition of discrimination) in conjunction with Article 11. It is argued that, in doing so, the Court should tackle the use of homophobic discourse and harmful stereotypes concerning sexuality by the domestic authorities, in particular the stigmatizing idea that LGBT people seek to “recruit” or “convert” heterosexuals or that LGBT activism would lead to a drop in the birth rate. The Court is further invited to examine the case from the viewpoint of Article 14 in conjunction with Article 6 § 1 (the right to a fair trial). In particular, it is argued that stigmatizing and discriminatory attitudes and statements by the judiciary cannot be reconciled with their duty of independence and impartiality.

Finally, the Court is invited to acknowledge that Article 14 encompasses a positive obligation on the State to use all available means to combat homophobia and discrimination on the ground of sexual orientation and to take measures to counteract the societal conclusion of LGBT people. This is in line with the State’s obligation under international human rights law to promote cultural change in order to realize human rights. While this is not an obligation of results but one of means, the State should be able to demonstrate that it is working towards the realization of such cultural change. One way of doing so is by supporting the work of civil society organisations that combat discrimination and prejudice, rather than hampering their work as the State did in the case at hand.

[1] In particular Eva Brems, Helena De Vylder, Corina Heri, Eline Kindt and Laurens Lavrysen.

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