In a judgment in the case of Bayev v Russia ( ECHR 572) handed down on 20 June 2017, the Third Section of European Court of Human Rights found – by six votes to one – that the so-called Russian “gay-propaganda law” banning the promotion of homosexuality violated both Article 10 and Article 14 of the Convention.
The judgment is an important one for both freedom of expression and equality and a strong message that the Court will not permit states to hide behind their margin of appreciation to enact oppressive and discriminatory laws.
The Applicants are three Russian gay rights activists. Initially at a regional level in 2003 and in 2006 and then at a federal level in 2013, the Russian Government introduced a series of laws prohibiting so-called “homosexual propaganda”. In fact, these laws constituted a near blanket ban on any public mention of homosexuality. Notably, the Code of Administrative Offences was amended in 2013 to ban “the promoting of non-traditional sexual relationships among minors, […] creating a distorted image of the social equivalence of traditional and non-traditional sexual relationships.”
The Applicants staged various demonstrations in protest against these laws between 2009 and 2012. They held banners stating that homosexuality was natural and normal and not a perversion. All of the applicants were arrested and found guilty of administrative offences for which they received fines. Their appeals were unsuccessful, including a challenge to the compatibility of the laws with the Russian Constitution, which guarantees the principles of equal treatment and non-discrimination. The Constitutional Court found that the ban was justified on the ground of protecting “public morals” referring in particular to what it perceived to be the potential dangers of “creating a distorted impression of the social equivalence of traditional and non-traditional marital relations” and of children being lead into “non-traditional” sexual relations.
The Applicants lodged a complaint with the Court alleging that the laws violated their rights to freedom of expression under Article 10 and Article 14 on the prohibition of discrimination.
In relation to Article 10, the Applicants argued that in reality the law banning the promotion of homosexuality amongst minors was being used in order to suppress an open expression of protest against the same legislation. They also claimed that the prohibition of “homosexual propaganda” constituted a blanket ban on the mere mention of homosexuality in the presence of minors. They also said it was inherently discriminatory.
The Court held by a majority of 6 votes to 1 that the Russian laws violated both Article 10 and Article 14 of the Convention. It expressly rejected the Russian Government’s claim that the interference with the Applicants’ Article 10 rights (which was not in dispute) was justified on the ground of moral imperatives. While noting that the Court would ordinarily – where there is a lack of consensus amongst Member States – apply a wide margin of appreciation to such issues, in the case of homosexuality it noted that “there is a clear European consensus about the recognition of individuals’ right to openly identify themselves as gay, lesbian, or any other sexual minority, and to promote their own rights and freedoms”. 
It also noted that the extent of a margin of appreciation depended in large part on its assessment of the legitimate aim advanced by the Government. Here, the Court found that it
“would be incompatible with the underlying values of the Convention if the exerciser of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority group’s rights to freedom of religion, expression and assembly would become merely theoretical rather than practical and effective”. 
The Court also held that, contrary to the position advanced by the Government, the banning of the promotion of information about homosexuality to minors was likely to have a counterproductive effect on public health. 
Finally, the Court considered whether the ban could be justified on the ground of protection of the rights of others. It rejected this argument. In particular, it agreed with the Applicants that if there was an alleged risk of exploitation and corruption of minors then any measure to address that risk should apply equally to heterosexual individuals. It recognised the “sensitive” nature of public discussion of sex education and the need to balance that against parental views, educational policies and the rights of third parties. However, the information in question here was not, as in other cases “unwarrantably offensive to others, constituting an assault on their rights” and did not seek to advocate any particular type of sexual behaviour. Furthermore, “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 took a robust approach to the Russian Government’s near blanket ban on the discussion of homosexuality in public, and particularly where children were concerned. It is an important recognition that a state will not be able to rely on their margin of appreciation, even where the subject matter is a sensitive one, in cases where the issue in question is one raising fundamental issues of equality and considered to be a social norm across Member States. It is however interesting to note the Court’s distinction between speech which, as here, was relatively neutral and speech which it considers to be “offensive” because it relates to sexual conduct. It seems then that the Court is still of the view that it may be perfectly proper for states to restrict speech where it is considered particularly offensive to a group of people. What constitutes offensive speech will be fact sensitive. However, this is an important statement by the Court that discriminatory restrictions on freedom of expression will not be tolerated. Whether Russia heeds that warning is another matter.
Kirsten Sjøvoll is a member of Matrix Chambers and specialises in media and information law.
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