Submitted by lratledge on
Title:
Bayev and others v. Russia
Court:
European Court of Human Rights
Citation:
[2017] Application No. 67667
Date:
20 June 2017
Instruments cited:
European Convention on Human Rights, Articles 10 and 14
Constitution of Russia
Federal Law No 436-F3 of 29 December 2010 on the Protection of Children from Information that is Harmful to their Health and Development
Federal Law No. 124-FZ of 24 July 1998 on the Main Guarantees of the Rights of the Child in the Russian Federation
Code of Administrative Offences of the Russian Federation
Law No. 172-22-OZ of the Archangelsk Oblast On Administrative Offences
Law No. 41-OZ of the Ryazan Oblast of 3 April 2006 on Protection of the Morality and Health of Children in the Ryazan Oblast
Law No. 273-70 of St Petersburg of 31 May 2010 On Administrative Offences in St Petersburg
Case summary:
Background:
Three LGBT activists held protests outside schools or children’s libraries in Russia, where they had held signs including slogans such as “Homosexuality is normal”, “Children have a right to know. Great people are also sometimes gay” and “Homosexuality is not a perversion. Field hockey and ice ballet are”. The three activists were all charged and found guilty of the administrative offence of “public activities aimed at the promotion of homosexuality among minors” and fined. The activists unsuccessfully challenged the constitutionality of the Law on Protection of the Morality and Health of Children in the Ryazan Oblast through the national courts and to the Constitutional Court. One of the activists also challenged the constitutionality of the Code of Administrative Offences before the Constitutional Court. After the challenges failed, the activists brought complaints to the European Court of Human Rights.
Issue and resolution:
Discrimination and LGBT rights. The prohibition on public activities aimed at the promotion of homosexuality among minors violates the rights to freedom of expression and non-discrimination under the ECHR.
Court reasoning:
The parties to the complaint agreed that Russian law infringed the freedom of expression of the applicants. The court addressed whether this interference was justified on any of the grounds permitted under the European Convention on Human Rights (ECHR).
The Court rejected the government’s argument that the restriction on freedom of expression was permitted on the grounds of the protection of morals. Specifically, the Court rejected the argument that there is a conflict between maintaining family values and the social acceptance of homosexuality, particularly in light of the growing tendency to include same-sex couples within the concept of family life under the ECHR. The Court’s case law has consistently declined to endorse policies and decisions which embody a bias on the part of the heterosexual majority against a homosexual minority. While popular sentiments may play a role in the Court’s assessment, the Court drew a distinction between using popular support to extend the scope of the Convention’s guarantees and using it to narrow the scope of protection.
The Court rejected the government’s argument that the ban was justified on the grounds of the protection of health. The Court found that the government had not demonstrated that the applicants had advocated unhealthy personal choices finding that, quite the contrary disseminating information about sex and gender identity and awareness of associated risks would be an indispensable part of disease prevention. The Court also found that the government had not demonstrated that the suppression of information about same sex relationships would reverse a negative demographic trend.
The Court also rejected the government’s argument that the ban was justified for the protection of the rights of others, by ensuring that children were not converted to a “homosexual lifestyle” that would be detrimental to their development and make them vulnerable to abuse. The Court held that the government had been unable to provide any explanation of the mechanism by which a child could be enticed into a “homosexual lifestyle” nor scientific evidence that sexual orientation or identity is susceptible to change under external influence. Rejecting the government’s argument that the law was necessary for the protection of the children from exploitation and corruption, the Court upheld the applicants’ arguments that protection from such risks should not be limited to same-sex relationships and that Russian law already provides for criminal liability for sexual actions against children and the dissemination of pornogrpahy to minors.
The Court found that the legislation violated the prohibition on discrimination under the ECHR as the law a predisposed bias on the part of the heterosexual majority against the homosexual minority and that the government had not offered convincing and weighty reasons justifying the difference in treatment.
Dissent (Judge Dedov, Russia):
The judge argued that the majority of the Court had erred in analysing the case as a matter of discrimination with regards to freedom of expression rather than a case of a conflict of rights between the freedom of expression and the right to private and family life. The dissenting judgment argued that the freedom of expression of the protestors conflicted with the private life of the children and the right of their parents to educate their children in accordance with their religious and philosophical convictions.
Link to full judgment:
http://hudoc.echr.coe.int/eng?i=001-174422
