Based in Sydney, Australia, Foundry is a blog by Rebecca Thao. Her posts explore modern architecture through photos and quotes by influential architects, engineers, and artists.

How Controversial is »Gay Propaganda« according to the ECtHR?1

INTRODUCTION2

In the light of the recent adoption of the controversial Russian federal legislation concerning »gay propaganda« and a 100-year ban on pride festivals in Moscow, and due to the organization of Winter Olympic Games in Sochi, the spotlight is once again placed on the LGBT3 community – at least for a while. Therefore the opportunity to raise some important issues regarding the protection of human rights of this so often marginalized minority seems to be that more important. In search of answers, one must most definitely look at the practice of the European Court of Human Rights (thereinafter: ECtHR) for it seems that in certain countries the problems with the recognition of basic human rights of freedom of expression and assembly, in regard to the LGBT community, cannot be solved domestically. The aim of this post is to represent the obligations imposed upon the Council of Europe member states by the European Convention on Human Rights’ (thereinafter: ECHR) Arts. 10 and 11, and the accompanying practice of the ECtHR.4 What follows is an evaluation of the practice of some states, focusing on Russia, with regard to those obligations.

RUSSIAN LAWS – PROTECTING CHILDREN FROM SLOGANS?

Let us firstly take a closer look at the federal legislation, signed by the Russian president Vladimir Putin on the 29th of June 2013, which stirred so much controversy. It is an amendment to the Federal Law ‘On Protection of Children from Information that is Harmful to their Health and Development’, with the aim of protecting children from information that is promoting the denial of traditional family values. It enforces administrative bans on the »Propaganda of non-traditional sexual relations among minors expressed in distribution of information that is aimed at the formation among minors of non-traditional sexual attitudes, attractiveness of non-traditional sexual relations, misperceptions of the social equivalence of traditional and non-traditional sexual relations, or enforcing information about non-traditional sexual relations that evokes interest to such relations.«5

The term »non-traditional sexual relations« is not defined in the law itself, but as a suspicious reader might have figured, the first people to be sentenced under the law were the renowned LGBT activist and the co-founder of the Moscow Pride Movement Nikolai Alekseyev and his fellow activist Yaroslav Yevtushenko, for carrying banners with the slogans:» Gay propaganda does not exist. People do not become gay, people are born gay«, outside a Children’s Library.6

Such »anti-propaganda« laws were already in force in some of the cities, namely St. Petersburg, before the federal law was enacted.7 There is therefore probably very little doubt as to the fact that one (or perhaps the only?) of the pretensions of this law was to silence the LGBT community and to disable the members from expressing their views and organizing protests and manifestations, where they could raise awareness about their rights not being respected. All that with the noble aim of protecting children and public morals. This assertion can undoubtedly be supported by the decision of the Moscow authorities to ban Pride Parades for 100 years, from March 2012 until May 2112.8

But before digging further into the matter it should be noted that Russia is not a lone rider in this field in Europe. Similar problems persist in other former Soviet republics9, as well as in Serbia10, Croatia11 and very recently, Montenegro12, although such legislation is (for now) unconventional even in those countries.

THE CONVENTION AND OF THE COURT

General principles – in a nutshell

The main focus here is placed on Arts. 10 and 11 of the ECHR which respectively provide freedom of expression and freedom of assembly.

As every other human being, members of the LGBT community are entitled to hold meetings and express their views, as long as the authorities do not find valid and sufficient reasons to interfere with their rights. The Court has repeatedly held that freedom of expression and freedom of assembly are two of the hallmarks of democratic societies and therefore call for strict protection.13 Any limitation on the rights set out in the first paragraphs of these two articles can only be in conformity with the ECHR if it complies with the demands of the second paragraphs. Such a limitation has to (1) be prescribed by law, (2) pursue one of the legitimate aims, listed in the paragraphs and (3) be necessary in a democratic society. All the exceptions have to be interpreted strictly.

In the case of Pride Festivals, reasons for the ban generally include protection of the rights of others (in the case of Russia, children; some other times even freedom of religion), the protection of morals and the interests of public safety and prevention of disorder or crime. If we set aside the »prescribed by law« aspect, and also recognize that all the above listed aims are generally accepted as legitimate by the Court. The core issue is whether an interference is necessary in a democratic society. The state has to demonstrate a pressing social need that the right should be interfered with and show that the interference is proportionate to the legitimate aim pursued. In this regard the states enjoy a margin of appreciation, which means that the Court primarily lets them decide which measures are best suited for their specific circumstances, as long as the interference does not go against the ECHR. In the end it is thus still the Court who decides whether a specific measure taken to limit one of the rights in question is in compliance with the demands of the ECHR.14 The principle of subsidiarity is also important here, as the Court requires strong reasons to substitute its view for that of a domestic court,15 as the national authorities are generally better placed to asses the need for a specific measure.16

ARTICLE 10

Freedom of expression

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in con?dence, or for maintaining the authority and impartiality of the judiciary.

The relationship between Arts. 10 and 11 is also important. Usually the Court does not consider themseparately, but only decides the case under Art. 11. The reason for that is the fact that the Court, in similar cases, considers Art. 10 as a lex generalis in relation to Article 11, a lex specialis. In such cases, it considers Art. 11 in light of Art. 10, as protection of personal opinions is one of the objectives of Art. 11.17 When discussing Pride festivals it can generally be assumed that the Court will apply this approach, as the focus and the bigger problem is usually the manifestation itself.

WHAT DOES THE COURT SAY?

The leading case in this field is Alekseyev v. Russia,18 and the name is no coincidence. As the case is a comprehensive demonstration of the Court’s approach it will be used as a tool to present possible arguments for both sides.

Alekseyev case

The efforts of the before mentioned Nikolai Alekseyev to organize a Pride Festival in Moscow were denied by the city authorities for 3 consecutive years.19 The mayor’s decision to refuse was based on grounds of public order, prevention of riots and the protection of health, morals and the rights and freedoms of others. His stance was supposed to be further supported by the fact that the public opinion seemed to have been firmly against holding such an event, there with even some threats of violence.

The Government claimed that, due to the safety risks involved, the ban on the event was inevitable. They further asserted, that the promotion of homosexuality was incompatible with the religious doctrines of the majority of the population and that the believers would perceive the events as an intentional insult to their religious feelings and a terrible debasement of their human dignity. The adverse effect on children and vulnerable adults was also brought into discussion. The State also claimed that there was no common European consensus in this matter and that therefore they should be afforded a wide margin of appreciation.

It could be said that the State in Alekseyev case decided to attack on all fronts. Their plea essentially covers all the arguments that are generally presented for banning a Pride festival.

PARTICIPANTS’ SAFETY, PREVENTION OF RIOTS, PUBLIC OPINION

The argument of the state was that it would not be safe to hold the events because of the public opposition to the event. The Court started by stating that Art. 11 protects demonstrations that may annoy or offend other people and that participants should be able to enjoy their right without having to fear that they will be subjected to physical violence – the state has a positive obligation to ensure that a demonstration proceeds peacefully. As the Court has held, this obligation is of particular importance for persons holding unpopular views or belonging to minorities because they are more vulnerable to victimization.20 Therefore only when there exists an imminent threat of violence, supported by concrete estimates and its potential scale, can the state, as a last resort, ban an event.21 To do otherwise would mean to endorse the intentions of people or organizations that deliberately intend to disrupt and disable a peaceful demonstration.22 Besides that, in the Court’s own vocabulary, »it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority.«23

Public opposition and general threats of violence therefore cannot as such be enough to ban an event. Even in cases of past violence at similar events, that is not enough to ban all subsequent events of this kind.24

One has to agree here that when a state refuses to enable its citizens, especially minorities, to enjoy their basic human rights, people have very little left to cling to. In the case of Pride Festivals, public opposition, usually stemming from relatively small groups of people, normally endorsed by religious agents, is very intensive. But by succumbing to such pressure the state fails to justify one of its basic purposes, which is to protect its citizens and ensure normal enjoyment of their rights. Usually counter-demonstrations in similar situations are not of such dimension, that the state could not provide safety – often the problem seems to be the political will of the government.

ARTICLE 11

Freedom of assembly and association

  1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
  2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

But even in such cases opponents have presented a very reasonable argument: How far does the obligation to respect the freedom of assembly (and expression) go in such cases? Is the right to organize such events above the right to physical integrity or even life? What if an event is allowed and several people are killed as a result – in that case, the State might be held responsible for allowing the event. The Court already answered that, stating that »while it is the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used.«25 The answer to this question is certainly a very difficult one and it lies in the finding of the correct balance of rights and interests in every specific case. Proportionality is crucial here and alternatives have to be weighed and ruled out in order for the ban of an event to be in compliance with the ECHR.

But for now, as stated above, it seems that the reason for the bans in most cases is not the clear and imminent possibility of violence that could not be efficiently repressed by the state but the lack of political will and strength. And the latter is definitely not a legitimate aim under the Convention.

PROTECTION OF MORALS AND RIGHTS OF OTHERS (CHILDREN)

In normal conditions, the argument of the protection of morals does not come into play when it comes to Pride Festivals. The core purpose of such festivals is the promotion of human rights, respect and tolerance of the members of the LGBT community. Therefore it is most frequently the case, as in Alekseyev, that it is not the behavior or the attire of the participants that is problematic, as the parades don’t include any sexually explicit content, but rather the fact that the participants wish to openly identify themselves as gay or lesbian.26 The problem is not the event itself but the prejudices of other people.

When it comes to the question of the collision between the rights pursuant to Art. 10 and 11 on one side and the right to freedom of religion (Art. 9) on the other, such an argument is also unlikely to be accepted by the Court. There is admittedly no case law with regard to Pride Festivals but we can nevertheless find support for this claim, as the Court held that those who exercise the freedom of religion cannot reasonably expect to be exempt from all criticism and must tolerate and accept the propagation by others of doctrines hostile to their faith.27 In Alekseyev, the Court did not specifically deal with the question of weighing these two rights but it did however state that the Festival was aimed at promoting respect for human rights and freedoms and to call for tolerance towards sexual minorities and that there was no intention to exhibit nudity, engage in sexually provocative behavior or criticize public morals or religious views.28 Based on previous experience, the same could be said for

Pride Festivals throughout Europe. With its final decision the Court implied, that the mere fact of holding a Pride Festival is not problematic with regard to one’s rights pursuant to Art. 9.

The main reason for the enacted legislation in Russia was the protection of the rights of children. In Alekseyev, the Court dismissed this argument by 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, including the individuals concerned. It would also clarify some common points of confusion, such as whether a person may be educated or enticed into or out of homosexuality, or opt into or out of it voluntarily.«29 To that, there is very little to be added.

The protection of children is undoubtedly a legitimate aim, protected by the convention and per se, the legislation adopted in Russia cannot be deemed incompatible with the Convention – in certain cases it would certainly prove to be necessary. However it cannot be used as an argument to ban Pride festivals or similar manifestations as they, if conducted in an orderly manner, are not by themselves problematic in any way.30

EUROPEAN CONSENSUS

The Russian government also claimed that there is no common European consensus in this field and that it should accordingly be allowed a wide margin of appreciation. However the Court did not accept this assertion and very importantly held that »there is no ambiguity about the other member States’ recognition of the right of individuals to openly identify themselves as gay, lesbian or any other sexual minority, and to promote their rights and freedoms, in particular by exercising their freedom of peaceful assembly.«31 Therefore, when it comes to the right to campaign for the rights of homosexual individuals, by exercising their Art. 10 and 11 rights at events like the Pride Festivals, there exists a common European practice of allowing such events, which in turn narrows the State’s margin of appreciation.

A GENERAL BAN

If the federal law is, only in principle and on paper, not all that much problematic, the general 100-year ban of Pride festivals in Moscow is a different story. As already implied above, the Court uses the proportionality test when assessing the aspect of »necessity of an interference in a democratic society«. The test, inter alia, demands, that each case be dealt with individually and all relevant circumstances taken into account.32 A ban can only be justified when there is a real danger of disorder which cannot be prevented by less stringent measures.33 A general ban on such an event, obviously inspired by homophobic hatred, cannot in any case satisfy those requirements. If we are to claim that even in ordinary cases the Court would be very reluctant to allow for a Pride Festival to be banned, regardless of the interests pursued, we can conclude with certainty that a bianco ban would be held incompatible with the ECHR.

In Alekseyev, the Court dismissed this argument by 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«.

TAKING ADVANTAGE OF THE OPPORTUNITY

In view of the presented ECtHR case law one could speculate that Russia might get into some (or better said, even more) trouble with the Council of Europe. While the complete ban in Moscow is undoubtedly problematic, the practice shows that the federal law is also not innocent. Taking into account the recent developments regarding human rights in Russia it seems that the authorities became aware of that fact themselves. The international pressure has at least given some minor results, which is mostly due to the organization of Winter Olympic Games in Sochi. On the one hand it is sad that that the problems regarding respect for fundamental human rights only raise public attention when the organization of such a major event is in question, but on the other hand it would nonetheless be shameful not to take advantage of this opportunity. A call for systemic changes has already been made and the pressure must persist. Hopefully, these actions will have a positive and far-reaching effect on the society. Consequently, in the long term, things will have to take a turn for the better as the rights of the members of the LGBT community (with a few aforementioned exceptions) are being increasingly recognized in European countries. That is also the only right way to go. Let us hope that one day we will look back and wonder: »How could we ever have been so narrow-minded in the past?« It will certainly (and unfortunately) not be the first time.


1 A similar version of this paper was already published in an online international relations magazine, DeFactual.

2 The research of the ECtHR case law used in this article was made during the preparations for the Trans-Regional Moot Court Competition Before the ECtHR in 2013 and is a collective work of all the members of the team Henrik Steska from the Faculty of Law in Ljubljana: Matej Brajnik, Katja Doležalek, Domen Kavka, Ema Končan, Maja Ramšak, and the author of this article, Marjan Kos.

3 LGBT is an abbreviation that stands for lesbian, gay, bisexual, and transgender. Although there are many different and newer variations of it, this simplification should suffice for the purposes of this paper.

4 It should be noted that Art. 14, which prohibits discrimination, is also very important in connection with the LGBT community’s rights from Arts. 10 and 11, but because of the wide scope and complexity of the subject it is not included in this paper.

5 The translation is an unofficial one, provided by the Russian LGBT Network.

6 Avialable: http://www.civilrightsdefenders.org/news/russia-first-lgbt -activists-sentenced-under-federal-propagan da-law/.

7 After Ryazan, Arkhangelsk and Kostroma, St Petersburg is the fourth city to pass such a law.http://www.theguardian.com/world/2012/mar/12/st -petersburg-bans-homosexual-propaganda.

8 Avialable: http://www.bbc.co.uk/news/world-europe-19293465, http://www.humanrightsfirst.org/2012/06/07/ gay-pride-parade-banned-for-100-years-in-russia/, http://rt.com/politics/moscow-city-courtgay-247/ (9. 2. 2014).

9 Latvia: http://www.hrw.org/news/2006/07/21/latvia-reverse-bangay-rights-demonstration; Ukraine: http://www.theguardian.com/ world/2013/may/23/ukraine-court-blocks-gay-pride-rally (9. 2. 2014).

10 Avialable: http://www.reuters.com/article/2013/09/27/us-serbiagaypride-idUSBRE98Q14K20130927 (9. 2. 2014).

11 Avialable: http://www.hrw.org/news/2012/05/31/croatia-don-t-force-change-pride-march-route (9. 2. 2014).

12 Avialable: http://www.huffingtonpost.com/2013/10/20/montenegro-gay-march-_n_4133860.html (9. 2. 2014).

13 Bączkowski and Others v. Poland, no. 1543/06, 3 May 2007, §63; Barankevich v. Russia, no. 10519/03, 26 July 2007, §30.

14 Harris, O’Boyle, Bates, Buckley: Law of the European Convention on Human Rights (2009), p. 342–359.

15 Faber v. Hungary, no. 40721/08, 24 July 2012, §28.

16 Otto-Preminger-Institut v. Austria, no. 13470/87, 20 September 1994, §56.

17 Ezelin v. France, no. 11800/85, 26 April 1991, §§35, 37; Harris, O’Boyle, Bates, Buckley: Law of the European Convention on Human Rights (2009), p. 516.

18 Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, 21 October 2010. It should be added here, that there have been 3 cases, concerning Art. 10, 11 and 14 rights of the LGBT community before the ECtHR. The other two are Bączkowski and Others v. Poland, no. 1543/06, 3 May 2007 and Genderdoc-M v. Moldova, no. 9106/06, 12 June 2012.

19 In fact, his efforts have been denied for a much longer period of time but in the case at hand only three refusals (in years 2006, 2007 and 2008) to hold the Festival in Moscow were at issue.

20 Bączkowski and Others v. Poland, no. 1543/06, 3 May 2007, §64.

21 Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, 21 October 2010, §75; Faber v. Hungary, no. 40721/08, 24 July 2012,§40.

22 Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, 21 October 2010, §76.

23 Ibidem, §81.

24 Faber v. Hungary, no. 40721/08, 24 July 2012, §44.

25 Plattform »Ärzte für das Leben« v. Austria, no. 10126/82, 21 June 1988, §34.

26 Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, 21 October 2010, §82.

27 Otto-Preminger-Institut v. Austria, no. 13470/87, 20 September 1994, §47. However, to be fair, leaving general principles introduced in the case aside, this judgment can also be used as a counter-argument, as the Court recognized the great role of religion and the final decision was that the right of freedom of religion takes precedence to the right of freedom of speech in that concrete case.

28 Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, 21 October 2010, §82.

29 Ibidem, §86.

30 The current practice of issuing bans for holding banners with slogans as described above can therefore be deemed questionable.

31 Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, 21 October 2010, §§83–85.

32 Barankevich v. Russia, no. 10519/03, 26 July 2007, §33.

33 Christians against Racism and Fascism v. the United Kingdom, no. 8440/78, 16 July 1980, §5.

Goran Klemenčič: predsednik KPK

Krivda in nevroznanost