July 11, 2017
By Pieter Cannoot, PhD researcher, Human Rights Centre (Ghent University) and Claire Poppelwell-Scevak, FWO Research Fellow, Human Rights Centre (Ghent University)
On 20 June 2017, the European Court of Human Rights issued a particularly strong-worded judgment in the case of Bayev and Others v. Russia. The Court not only found Russia’s legislative prohibition of the ‘promotion of homosexuality’ among minors to be a violation of Article 10 and Articles 10 j. 14 ECHR, but also did so in a well-reasoned, straightforward judgment that easily set aside every argument by the Russian Government. The boldness of the judgment for the protection of LGB rights heavily contrasts with the dissenting opinion of Judge Dedov, whose inexcusable assimilation of homosexual persons with child abusers is a black mark on the Strasbourg Court.
The case concerned the applications of three Russian gay rights activists who were each found guilty of the administrative offence of ‘public activities aimed at the promotion of homosexuality among minors’. The first applicant held a demonstration in front of a secondary school, holding two banners, which stated “Homosexuality is normal” and “I am proud of my homosexuality”. The second and third applicants also held a demonstration in front of a children’s library, holding banners that stated “Russia has the world’s highest rate of teenage suicide. This number includes a large proportion of homosexuals. They take this step because of the lack of information about their nature. Deputies are child-killers. Homosexuality is good!” and “Children have the right to know. Great people are also sometimes gay; gay people also become great. Homosexuality is natural and normal”. Both the Parliamentary Assembly of the Council of Europe and the Venice Commission considered the relevant provisions to be incompatible with the ECHR and international human rights standards.
The applicants claimed before the ECtHR that the Russian legislation violated article 10 ECHR and was discriminatory, given that no similar restrictions applied with regard to the heterosexual majority (Article 14 ECHR).
Since the Government acknowledged the interference with Article 10, the Court immediately applied the justification test of Article 10, §2. However, it only addressed whether the administrative offence was based on a legitimate aim.
According to the Court, Russia failed to demonstrate how freedom of expression on LGBT issues would devalue or otherwise adversely affect actual and existing ‘traditional families’. Moreover, it saw no reason to consider social acceptance of homosexuality incompatible with the maintenance of family values. Rather the Court held that it is ‘incumbent on the State’ to take into account developments in society. In this regard, it reiterated its support for Kozak v Poland that there is no singular correct way for an individual to lead their personal family or private life.
Importantly, the Court argued that the legislation at hand in fact embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority which cannot of itself be considered to amount to sufficient justification for the differential treatment. Even more unacceptable are the attempts to draw parallels between homosexuality and paedophilia. And although it is true that popular sentiment (according to the Government, the majority of Russians disapprove homosexuality) may play an important role when it comes to the justification on the grounds of morals, there is an important difference between giving way to popular support in favour of extending the scope of the Convention and a situation where that support is relied on to narrow its scope. The Court reiterated that it would be incompatible with the underlying values of the Convention if the exercise of rights by a minority group were made conditional on its being accepted by the majority.
Next, the Government argued that the promotion of same-sex relationships had to be banned on the grounds that same-sex relationships posed a risk to public health and Russia’s demographic situation. In response, the Court found that the Government’s actions were actually in direct contradiction to the promotion of general public health. Indeed, presenting sex and gender issues in an objective and scientific way would be ‘an indispensable part of a disease prevention campaign’.
The Court found it equally difficult to see how the law prohibiting promotion of homosexuality or non-traditional sexual relations among minors could help in achieving the desired demographic targets, or how, conversely, the absence of such a law would adversely affect them.
Finally, the Government argued that minors need to be shielded from information which could convey a positive image of homosexuality, as a precaution against their conversion to a ‘homosexual lifestyle’ which would make them vulnerable to abuse. The information also encroached upon the educational choices of their parents. The Court first pointed out that the essence of the offence is in fact defined by the content of the expression in question, independent of the presence of minors. Despite the Constitutional Court having clarified that the prohibition did not concern information presented in a neutral context, in practice, however, the requirement of neutrality may prove unattainable. After all, the absence of a negative connotation may in itself be perceived as conveying a positive attitude. Moreover, the Court held that the Government was unable to provide any explanation how a minor could be enticed into ‘a homosexual lifestyle’. The Court argued in the same sense that the Government had not shown why the criminal offences of child abuse and dissemination of pornography to minors (which are applicable irrespective of the sexual orientation of those involved) were insufficient and why they considered that minors were more vulnerable to abuse in the context of homosexual relationships.
Furthermore, the Court reaffirmed that the Convention does not guarantee the right not to be confronted with opinions that are opposed to one’s own convictions. The applicants’ messages were not inaccurate, sexually explicit or aggressive. Nor did the applicants make any attempt to advocate any sexual behaviour. Nothing in the applicants’ actions diminished the right of parents to enlighten and advise their children. Moreover, the Court pointed out that, to the extent that the minors who witnessed the applicants’ campaign were exposed to the ideas of diversity, equality and tolerance, the adoption of these views could only be conducive to social cohesion.
The Court concluded that the legal provisions in question do not serve to advance the legitimate aim of the protection of morals, and that such measures are likely to be counterproductive in achieving the declared legitimate aims of the protection of health and the protection of rights of others. Above all, by adopting such laws, the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society. Russia therefore violated Article 10 ECHR. The Court considered these findings also sufficient to find a violation of Article 14 ECHR.
Although the outcome of the case is not much of a surprise, especially considering the Court’s judgment in Alekseyev v. Russia, the judgment is remarkably straightforward and strong-worded. Indeed, by solely addressing the legitimate character of the aims pursued by the anti-gay propaganda law, the Court sends a strong signal to Russia. Moreover, by repeatedly pointing out the many discriminatory biases, and stressing the counterproductive character of the anti-propaganda law for the protection of the health and education of children and the solution of demographic challenges, the Court could even be seen to go have gone so far as ridiculing the Russian Government’s arguments. This is very clear in par. 75, where the Court rightly states that with regard to the vagueness of the margins of the Russian legislation, “the requirement of neutrality may prove unattainable with regard to the expression of opinions, and even statements of facts, since the absence of a negative connotation may in itself be perceived as conveying a positive attitude. Further, the Court bluntly states in par. 78, “[t]he position of the Government has not evolved since Alekseyev and remains unsubstantiated”.
The Court not only condemns the homophobic nature of the Russian legislation, it also calls for the inclusiveness of LGB persons within society. Indeed, it not only refuses to take into account that the majority of Russians have a negative opinion on homosexuality; it even denounces the importance of this viewpoint. After all, in par. 82 the Court finds that, to the extent that minors who witnessed the applicants’ campaign were exposed to the ideas of diversity, equality and tolerance, the adoption of these views could only be conducive to social cohesion.
In this regard, the Court has made two sweeping statements:
The first point illustrates that there is push from the Court to remind states to be aware of societal changes and to adapt accordingly. This may not seem to be revolutionary given this is a cornerstone to the Court’s dynamic approach and a rework of Kozak and X and Others v Austria. However, it is an important statement of support for LGB rights and not one to be over-looked.
However, with the second point, there is a certain degree of confusion, as this could potentially lead scholars to optimistically conclude that this commitment to LGB rights can be transferred to a protection of same-sex marriage. Despite the Court’s apparent favour towards LGB rights in this case, it must be noted that this is an Article 10 case, not one concerning a lex specialis right such as Article 12 – the right to marry. There is no indication from the precedent used (arguably Schalk and Kopf was referred to in this judgment but only in relation to the expansion of Article 8 not 12) in this case that the Court has changed its mind here. Rather the Court has only looked to whether Russia’s interference of Article 10 is justified. As mentioned above, there has been an overlap with Article 8, but this does not necessarily translate to an overlap into Article 12.
Even though the advancement of the protection of LGB rights in the ECtHR’s case law has been a slow process, especially with regard to same-sex marriage, the judgment nevertheless reflects the strong foundation that the ECHR currently offers to LGB persons. In this regard, it is interesting to note how the Court uses the “flow of applications” regarding marriage, parenthood and adoption to the benefit of the applicants considering its reluctance to push forward on these issues. At the very least, the Court cemented its stance that LGB rights are to be included in all future policy concerns of the State.