Information Note on the Court’s case-law 208
June 2017
Bayev and Others v. Russia - 67667/09, 44092/12 and 56717/12
Judgment 20.6.2017 [Section III]
Article 10
Article 10-1
Freedom of expression
Legislative prohibition on the promotion of homosexuality among minors reinforcing stigma and prejudice and encouraging homophobia:violation
Article 14
Discrimination
Unjustified difference in treatment between heterosexual majority and homosexual minority: violation
Facts – The applicants, gay rights activists, were fined in administrative proceedings for having staged a protest against laws banning the promotion of homosexuality among minors. Such laws had been enacted first at regional and subsequently at federal level.
Before the European Court the applicants complained under Article 10 about the ban on public statements concerning the identity, rights and social status of sexual minorities. They further argued that this ban was discriminatory under Article 14 as no similar restrictions applied with regard to the heterosexual majority.
Law – Article 10: The central issue in the case was the very existence of a legislative ban on the promotion of homosexuality or non-traditional sexual relations among minors which the applicants argued was inherently incompatible with the Convention. It was of relevance that even before any administrative measures had been taken against the applicants the ban had arguably encroached on the activities in which they might personally have wished to engage, especially as LGBT activists. The chilling effect of a legislative provision or policy could in itself constitute an interference with freedom of expression. The Court was not required to establish the existence of interference on the basis of the general impact of the impugned laws on the applicants’ lives, however, because the laws had actually been enforced against the applicants in the administrative proceedings.
In order to determine the proportionality of a general measure, the Court had to primarily assess the legislative choices underlying it, regard being had to the quality of the parliamentary and judicial review of the necessity of the measure, and the risk of abuse if a general measure were to be relaxed. In doing so, it had to take into account its implementation in the applicants’ concrete cases, which were illustrative of its impact in practice and were thus material to the measure’s proportionality. As a matter of principle, the more convincing the general justifications for the general measure were the less importance the Court would attach to its impact in a particular case. Accordingly, the Court’s assessment would focus on the necessity of the impugned laws as general measures, an approach which was to be distinguished from a call to review domestic law in the abstract.
The Government defended the need for the legislative ban with reference to the protection of morals and family values, the protection of health and the protection of the rights of others.
(a) Justification on the grounds of protection of morals – There was a clear European consensus about the recognition of individuals’ right to openly identity themselves as gay, lesbian or any other sexual minority, and to promote their own rights and freedoms. There was no reason to consider that, as argued by the Government, maintaining family values as the foundation of society and acknowledging the social acceptance of homosexuality were incompatible, especially in view of the growing tendency to include relationships between same-sex couples within the concept of family life and the acknowledgement of the need for their legal recognition and protection.
The Court had consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority. Those negative attitudes, references to traditions or general assumptions in a particular country could not of themselves be considered to amount to sufficient justification for the differential treatment, any more than similar negative attitudes towards those of a different race, origin or colour. The legislation at hand was an example of such predisposed bias, unambiguously highlighted by its domestic interpretation and enforcement, and embodied in formulas such as “to create a distorted image of the social equivalence of traditional and non-traditional sexual relationships”.
The Court took note of the Government’s assertion that the majority of Russians disapproved of homosexuality. It was true that popular sentiment could play an important role in the Court’s assessment when it came to the justification on the grounds of morals. However, there was an important difference between giving way to popular support in favour of extending the scope of the Convention guarantees and a situation where that support is relied on in order to narrow the scope of the substantive protection. 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 their 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 as required by the Convention.
(b) Justification on the grounds of protection of health – It was improbable that a restriction on potential freedom of expression concerning LGBT issues would be conducive to a reduction of health risks. Quite the contrary, disseminating knowledge on sex and gender identity issues and raising awareness of any associated risks and of methods of protecting oneself against those risks, presented objectively and scientifically, would be an indispensable part of a disease-prevention campaign and of a general public-health policy.
It was equally difficult to see how the law prohibiting promotion of homosexuality or non-traditional sexual relations among minors could help in achieving the desired demographic targets, or how, conversely, the absence of such a law would adversely affect them. Suppression of information about same-sex relationships was not a method by which a negative demographic trend might be reversed.
(c) Justification on the grounds of protection of the rights of others – The position of the Government concerning possible forceful or underhand “recruiting” of minors by the LGBT community had not evolved since Alekseyev* and remained unsubstantiated. The Government had been unable to provide any explanation of the mechanism by which a minor could be enticed into a “homosexual lifestyle”, let alone any science-based evidence that one’s sexual orientation or identity was susceptible to change under external influence.
In sensitive matters such as public discussion of sex education, where parental views, educational policies and the right of third parties to freedom of expression had to be balanced, the authorities had no choice but to resort to the criteria of objectivity, pluralism, scientific accuracy and, ultimately, the usefulness of a particular type of information to the young audience. It was important to note that the applicants’ messages were not inaccurate, sexually explicit or aggressive. Nor did the applicants make any attempt to advocate any sexual behaviour. Nothing in the applicants’ actions diminished the right of parents to enlighten and advise their children, to exercise with regard to their children the natural parental functions as educators, or to guide their children on a path in line with the parents’ own religious or philosophical convictions. To the extent that the minors who witnessed the applicants’ campaign were exposed to the ideas of diversity, equality and tolerance, the adoption of those views could only be conducive to social cohesion.
The legal provisions in question did not serve to advance the legitimate aim of the protection of morals, and such measures were likely to be counterproductive in achieving the declared legitimate aims of the protection of health and the protection of the rights of others. Given the vagueness of the terminology used and the potentially unlimited scope of the application, the provisions were open to abuse in individual cases, as evidenced in the applications at hand. By adopting such laws the authorities reinforced stigma and prejudice and encouraged homophobia, which was incompatible with the notions of equality, pluralism and tolerance inherent in democratic society. In adopting the measures in question and implementing them in the applicants’ cases the Russian authorities had overstepped the margin of appreciation afforded by Article 10.
Conclusion: violation (six votes to one).
Article 14 in conjunction with Article 10: The State’s margin of appreciation was a narrow one with regard to differences in treatment based on sexual origination. Such differences required particularly convincing and weighty reasons by way of justification. Differences based solely on considerations of sexual orientation were unacceptable under the Convention. The legislation at hand stated the inferiority of same-sex relationships compared with opposite-sex relationships. The legislative provisions embodied a predisposed bias on the part of the heterosexual majority against the homosexual minority and the Government had not offered convincing and weighty reasons justifying that difference in treatment.
Conclusion: violation (six votes to one).
Article 41: Between EUR 8,000 and EUR 20,000 in respect of non-pecuniary damage; between EUR 45 and EUR 180 in respect of pecuniary damage.
(See Smith and Grady v. the United Kingdom, 33985/96 and 33986/96, 27 September 1999; Animal Defenders International v. the United Kingdom [GC], 48876/08, 22 April 2013, Information Note 162; and Lashmankin and Others v. Russia, 57818/09 et al., 7 February 2017, Information Note 204)
* Alekseyev v. Russia, 4916/07 et al., 21 October 2010, Information Note 134.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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