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26.10.2017

ECtHR: Russian laws encourage stigma, prejudice and homophobia

By Emil Weber

Legal acts in Russia prohibiting the "public promotion of homosexuality among minors” actually “reinforce stigma and prejudice” and “encourage homophobia”, says a landmark ruling of the European Court of Human Rights (ECtHR).

The European Court of Human Rights (ECtHR) in Strasbourg The European Court of Human Rights (ECtHR) in Strasbourg (photo: Nicoleon, Cour européenne des droits de l'homme, CC BY-SA 4.0)

Europe's top court decided on June 20, 2017, that Russia’s laws against promotion of homosexuality among minors and protests against such legislation amounted to violations of freedom of expression.

In March 2009, Mr Nikolay Viktorovich Bayev held a demonstration in front of a secondary school in Ryazan holding up two banners which read “Homosexuality is normal” and “I am proud of my homosexuality”. In less than a week a Ryazan court decided that Mr. Bayev had committed an administrative offence and he was fined 200 roubles (around 34 Euros).

His appeal was dismissed by the district court. In 2006 and 2008, the Ryazan Regional Duma (parliament) had adopted laws prohibiting the promotion of homosexuality among minors and administrative offences connected to such activities.

In January 2012, Mr Aleksey Aleksandrovich Kiselev and Mr Nikolay Aleksandrovich Alekseyev held similar demonstrations, standing still in front of a children’s library in Arkhangelsk. They held up banners saying that children were committing suicide due to the lack of information on their identity as homosexuals. The banners read “Homosexuality is good”, “Gay people also become great” etc. They were similarly charged for administrative offences  and fined the equivalent of 45 and 50 Euros. Their appeals were dismissed. In late 2011, the Arkhangelsk Regional Duma (parliament) had also adopted laws similar to those adopted in Ryazan. 

Mr Bayev’s and Mr Alekseyev’s applications were  twice considered inadmissible and were later dismissed by the Constitutional Court of the Russian Federation.

However, the European Court of Human Rights’ s recent ruling said there was no need for these laws in question as general measures. It challenged the motives behind the legislation, such as "maintaining family values”.

“The Government failed to demonstrate how freedom of expression on LGBT issues would devalue or otherwise adversely affect actual and existing ‘traditional families’ or would compromise their future”, the ECtHR ruling says.

The court also said there was biased wording and distorted imagery of homosexuality in the law. “Even more unacceptable are the attempts to draw parallels between homosexuality and paedophilia”, the court stressed.

According to the court, the government cannot demonstrate that freedom of expression among LGBT communities goes against disease-prevention policies. It also held that the suppression of freedom of information cannot be justified by the “difficult to see” argument that non-traditional sexual relations prevent population growth. “Population growth depends on a multitude of conditions - economic prosperity, social-security rights and accessibility of childcare being the most obvious factors among those susceptible to state influence”, the court said.

The ECtHR also held that the terms such as “recruiting”, “promotion” and “propaganda” for homosexuality among minors - as applied against the applicants - are vague. “The government was unable to provide any explanation of the mechanism by which a minor could be enticed into ‘[a] homosexual lifestyle’, let alone science-based evidence that one’s sexual orientation or identity is susceptible to change under external influence. The Court therefore dismisses these allegations as lacking any evidentiary basis”, the judgement reads.

It further challenged the need of a particular law against exploitation and corruption of minors among homosexual children as opposed to a single sanction concerning all children. “The government has not advanced any reasons why […] they considered that minors were more vulnerable to abuse in the context of homosexual relationships”, the ECtHR said. “The Court cannot but reiterate its finding that such an assumption would be a manifestation of pre-disposed bias”.  

According to the courts, the protests did not amount to an intrusion into education policies and parental choices on sexual education. “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 ECtHR argued that, instead, “by adopting such laws the authorities reinforce stigma and prejudice and encourage homophobia…”.

The court ruled the restrictions against the protests were a violation of article 10. “The legislative provisions in question embodied a pre-disposed bias on the part of the heterosexual majority against the homosexual minority and […] the government has not offered convincing and weighty reasons justifying the difference in treatment (based on sexual orientation)”, the judgement said.

Mr Bayev, Mr Kiselev and Mr Alekseyev were awarded in total 49,188 Euros in non-pecuniary damages and costs. 

Case of Bayev and Others v. Russia, application nos. 67667/09, 44092/12 and 56717/12. 20 June 2017





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