Strasbourg Observers

Bayev and Others v. Russia: on Judge Dedov’s outrageously homophobic dissent

July 13, 2017

Earlier this week, we published a blog post by Pieter Cannoot and Claire Poppelwell-Scevak on the judgment of Bayev and Others v. Russia in which the Court held that Russia’s so-called gay propaganda law violated the European Convention. In this blog post, I will not further dwell upon the outcome of the case or the reasoning by the majority. However, it is necessary to highlight and protest against the dissenting opinion by Judge Dedov. In his dissent, the Russian judge has crossed a line by making outrageously homophobic statements that are unworthy of a judge at the European Court of Human Rights.

Dedov’s homophobic dissent

Dedov’s dissent consists of a number of arguments. A first argument relates to the margin of appreciation doctrine. Relying on the Handyside judgment, he stresses that “[w]hereas States only have a narrow margin of appreciation in respect of political expression, they should enjoy a wider margin of appreciation in respect of public morals, decency and religion.” Certainly, framing the case in this respect ignores the fact that, according to the Court’s established jurisprudence, the margin of appreciation in cases related to differences of treatment based on sexual orientation is narrow, requiring “particularly convincing and weighty reasons” by way of justification, and according to which “[d]ifferences based solely on considerations of sexual orientation are unacceptable under the Convention” (see, inter alia, X and Others v. Austria, para. 99). While such selective reading and misrepresentation of the case law may have been intellectually dishonest, concluding his dissent by holding that the relevant law fell within the State’s allegedly wide margin of appreciation would have been an elegant way to hold that the Court should not have found a violation of the Convention. However, Dedov decided to continue his dissent by resorting to a number of outrageously homophobic statements…

According to Dedov, in line with the Government’s arguments, the case should have been constructed as involving a conflict of rights between the applicants’ freedom of expression and the protection of minors against sexual abuse, referring inter alia to the case of K.U. v. Finland which concerned the positive obligation under Article 8 to protect children from being targeted by paedophiles via the Internet. Given “children’s inexperience and credulity”,

“the forcible informing of children without their desire or consent, in any form, about sex in general should be prevented; as regards non-traditional sex, it is a much more complex issue on which children should be informed as late as possible when they become mentally mature.”

He distinguishes the case from the cases of Appel-Irrgang and Others v. Germany and Dojan and Others v. Germany, on the basis that

“those cases dealt with education relating to ethics, inter-cultural dialogue, and awareness of the problem of sexual abuse of children by strangers. In the present case the purpose of the demonstration is the opposite – to raise awareness of non-traditional sex, thus making children more vulnerable to sexual abuse.”

He then goes deeper into the question of children’s vulnerability, by holding that

“[m]ental immaturity is a decisive element of vulnerability. It is well known that children are vulnerable and credulous because of their lack of experience and incapacity to judge. Children may easily become interested in any information or ideas, especially in homosexual relations, without understanding their nature. The idea that same-sex sexual relations are normal indeed creates a situation where they are ready to engage in such relations, just because of the curiosity which is an integral part of a child’s mind. This is how the dissemination of ideas works vis-à-vis children.

Subsequently, he qualifies his dissent by holding that he would agree that the applicants had just neutrally disseminated information, “if the problem of paedophilia were completely resolved.” However, referring to the findings of a study by David Finkelhor, he holds that:

“Up to thirty per cent of children subjected to sexual abuse are boys, and seventy per cent are girls. If we note that all offenders are men, then same-sex violence constitutes a significant part of such cases, so that it deserves to be taken into consideration by making a special reference to same-sex relations in the law.”

He ends his dissent by arguing that the relevant law should be considered as “positive discrimination […] to protect the traditional values of Russian society”, calling on the Council of Europe to “respect family relationships as these are traditionally understood in Russia”; by dismissing the majority’s argument that the information concerned had pedagogical value, holding that “it is difficult to agree that a slogan raised on the street can satisfy any educational purposes”; and by holding that, in any event, “society in Russia in general is tolerant of this phenomenon” and that “[i]n the event of violence against homosexuals, any such case could be brought before the Court if the national authorities have failed to fulfil their positive obligations.”

Read as a whole, Dedov’s dissent is blatantly homophobic in nature. It is particularly outrageous how he attempts to link homosexuality and paedophilia. Using the words used by the majority to criticize the Russian authorities, by linking homosexuality and paedophilia, Dedov “reinforce[s] stigma and prejudice and encourage[s] homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society” (cf. § 83). In this respect, it is worthy to recall the majority’s dismissal of the Russian authorities’ arguments: “Even more unacceptable [than the predisposed bias against homosexuality inherent in the domestic law] are the attempts to draw parallels between homosexuality and paedophilia” (§ 69). While it is unacceptable for domestic authorities to do so, this applies with even more force to a judge at the European Court of Human Rights, whose function is to serve as the ultimate guarantor of human rights in Europe, irrespective of an applicant’s sexual orientation. Anybody concerned about human rights cannot accept such statements from a judge at the European Court of Human Rights. We as a scholarly community in the area of human rights cannot accept this, nor should Dedov’s colleagues at the Court for that matter.

Dedov’s progressively worsening track record

Rereading Dedov’s opinions in other cases, it is clear that they have gone downhill in recent months. For example, in May he wrote a dissenting opinion in the case of Trabajo Rueda v. Spain that was overly populist to be appropriate for a judge at the European Court. In this case, the Court found a violation of Article 8 because the police had accessed a computer containing child pornography material without obtaining prior judicial authorisation, despite the fact that the computer in question was already in the hands of the police and that prior authorisation could have been obtained fairly quickly without impeding the police investigation. In this case, Dedov accused his colleagues of having “preferred to protect the right to privacy, even when the ‘protected’ lifestyle is of criminal nature”, considering instead that the applicant “has abused his right to individual petition before the Court” (translation from French). Regardless of the outcome of the case and the abhorrent nature of the facts, it was clearly inappropriate for Dedov to resort to the kind of language that we’re used to from tabloids, typically accusing the Court of only being there to protect the activities of criminals or arguing that criminals should not enjoy human rights.

In the present case, another remarkable aspect of his dissenting opinion is how Dedov openly mocks his colleagues for being too liberal, holding that:

“the position of the Court could be understood as saying that such demonstrations, even if held in the vicinity of the schools, are relevant and even useful in a democratic society. I am not sure that the parents would agree with such a far-reaching liberal approach!”

It is not the first time that Dedov takes this kind of openly anti-liberal positions, suggesting that the individual should be subordinate to the society as a whole, which makes you wonder whether he is not ill-suited for a job which exactly requires him to protect the rights of the individual against majoritarian encroachments. Take the example of the case of Z.A. and Others v. Russia from March this year, in which the Court found violations of Articles 5 and 3 of the Convention on account of the length of detention of four asylum seekers in the airport transit zone and the conditions in which they were held for several months. In his dissenting opinion, Dedov first of all blatantly denies that the applicants were deprived of their liberty “as they were free to leave the transit zone and fly to any other country, including their country of origin.” More strikingly, with respect to the applicants’ complaint that the authorities did nothing to take care of them:

“In my view, this is a strange statement, but the Court has again agreed with this shifting of the burden from irresponsible aliens to the State authorities. This neo-liberal concept prevents the Court from raising the question: did the applicants try to solve their problems themselves?”

Making matters worse, he continues:

Such an interpretation (guided by a neo-liberal concept) has already led to the current ideological and political crisis in the West triggered by mass (and mostly economic) migration. The approach based on the above-mentioned concept makes it possible to require more from governments than is necessary. This approach does not encourage individuals to seek independence and responsibility, but instead develops completely opposite human qualities. Thus tolerance is expressed for those who would leave their home country for a better place rather than try to improve their life at home, make their own contribution to the national economic situation or fight for peace in their homeland. Why do we expect ourselves to be constantly active, to be involved in the education process, to show responsibility and initiative, to develop culturally, but not require such ambitions from others, or at least expect others to also be motivated to demonstrate those qualities?”

According to Dedov – I kid you not – the applicants should have rather followed Tom Hanks’ example from The Terminal, “whose character did not complain, but retained his dignity in difficult conditions, thanks to his personal qualities, his education and knowledge.” He concludes by holding that:

“Neo-liberals should accept that the freedom of movement is not without limits. I believe that this freedom is not limited by borders, but only by our own personal capabilities and aptitude. It could be never restricted for those who develop their personality and create new opportunities, and who are active. There are no borders for those who are in demand from professional companies, employers or an audience.”

Considering them too lazy and untalented to take their lives in their own hands, preferring instead to abuse human rights to get a free ride on state assistance, it is clear that, as with homosexuals, Dedov has not become a judge at the European Court to protect the rights of asylum seekers. One may wonder what kind of message this conveys to asylum seekers at a time when their rights are massively violated.

What about the required high moral character?

Article 21, § 1 ECHR sets out the criteria to become judge at the European Court of Human Rights: “The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.” While there is scope for reasonable disagreement among judges on questions such as the role of the European Court of Human Rights (e.g. the judicial activism vs. judicial restraint debate), in order for them to be considered “of high moral character” one can at least expect from judges that they are not against human rights and that they do not abuse their office to spread discriminatory discourse, be it homophobic, xenophobic, sexist or otherwise discriminatory. It is for the Parliamentary Assembly to avoid electing persons with such attitudes to the post of judge at the European Court. And while this faux pas will not easily be forgotten, it is for Judge Dedov, during the rest of his mandate, to prove that he is nonetheless worthy for office by living up to these standards. We at Strasbourg Observers will surely continue to keep an eye on him.

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