Information Note on the Court’s case-law 231
July 2019
Zhdanov and Others v. Russia - 12200/08, 35949/11 and 58282/12
Judgment 16.7.2019 [Section III]
Article 11
Article 11-1
Freedom of association
Refusal to register LGBT associations: violation
Article 14
Discrimination
Refusal to register LGBT associations: violation
Facts – The applicants, four Russian nationals and three Russian non-profit organisations, alleged that the refusal to register associations set up to promote and protect the rights of LGBT people in Russia had violated their right to freedom of association and had amounted to discrimination on grounds of sexual orientation.
Law
Article 11: The refusal to register the applicant organisations had amounted to an interference with their freedom of association and had had a basis in domestic law.
(a) Legitimate aim – The aims of the applicant associations were to defend and promote the rights of LGBT people, including the right to same-sex marriage. Although States were still free to restrict access to marriage to different-sex couples, the issue in the case was not whether same-sex marriage should be recognised in Russia. The crux of the case was whether a refusal to register an association campaigning against discrimination on grounds of sexual orientation or for recognition of same-sex marriage could be justified on the grounds of the protection of morals. The absence of a European consensus on the question of same-sex marriage was therefore of no relevance, because conferring substantive rights on homosexual persons was fundamentally different from recognising their right to campaign for such rights. There was 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 rights to freedom of peaceful assembly and association. The refusal to register the applicant associations could not be justified on the grounds of the protection of moral values or the institutions of family and marriage and could not therefore be considered to pursue the legitimate aim of the protection of morals.
The national authorities had considered that the applicant associations had threatened Russia’s sovereignty, safety and territorial integrity because their activities might have resulted in a decrease in the population. The Court was not convinced that a refusal to register an association defending LGBT rights on such grounds could serve to advance the aims of protecting national security and public safety. Firstly, there was no link between the promotion of homosexuality and the demographic situation, which depended on a multitude of conditions, such as economic prosperity, social-security rights and accessibility of childcare. Secondly, neither the national courts nor the Government had explained how a hypothetical decrease in the population could affect national security and public safety; nor had they provided any assessment of such an impact.
Further, as regards the aim of protecting the rights and freedoms of others, it was the right not to be confronted with any display of same-sex relations or promotion of LGBT rights or with the idea of equality of different-sex and same-sex relations – which the majority of Russians apparently resented and considered to be offensive, disturbing or shocking – that the national authorities had sought to protect by refusing to register the applicant associations. The Convention did not guarantee the right not to be confronted with opinions that were opposed to one’s own convictions. 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.
The Court accepted that social or religious hatred and enmity represented a danger for the social peace and political stability of democratic States and was likely to lead to violence. It therefore accepted that the declared aim of preventing such hatred and enmity corresponded to the legitimate aim of prevention of disorder and proceeded on the assumption that the contested measures had pursued that aim.
(b) Necessity in a democratic society – It had never been claimed that the applicants themselves had intended to commit any violent, aggressive or otherwise disorderly actions. Instead, the authorities had considered that the applicants might potentially have become victims of aggression by persons who disapproved of homosexuality. It was incumbent upon public authorities to guarantee the proper functioning of associations or political parties, even when they annoyed or gave offence to persons opposed to the lawful ideas or claims that they were seeking to promote. Their members had to be able to hold meetings without having to fear that they would be subjected to physical violence by their opponents. Such a fear would be liable to deter other associations or political parties from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate could not extend to inhibiting the exercise of the right of association.
The positive obligation to secure the effective enjoyment of the right to freedom of association and assembly was of particular importance for persons holding unpopular views or belonging to minorities, because they were more vulnerable to victimisation. Reference to the consciousness of belonging to a minority, the preservation and development of a minority’s culture or the defence of a minority’s rights could not be said to constitute a threat to “democratic society”, even though it might provoke tensions. The role of the authorities in such circumstances was not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerated each other.
It followed that it was the duty of the Russian authorities to take reasonable and appropriate measures to enable the applicant organisations to carry out their activities without having to fear that they would be subjected to physical violence by their opponents. The domestic authorities had had a wide discretion in the choice of means which would have enabled the applicant organisations to function without disturbance, such as for instance making public statements to advocate, without any ambiguity, a tolerant, conciliatory stance, as well as to warn potential aggressors of possible sanctions. There was no evidence that the Russian authorities had considered taking any such measures. Instead, they had decided to remove the cause of tension and avert a risk of disorder by restricting the applicant’s freedom of association. In such circumstances the refusal to register the applicant organisations was not “necessary in a democratic society”.
Conclusion: violation (unanimously).
Article 14 in conjunction with Article 11: The decisive ground for refusing to register the applicant organisations had been their aim of promoting LGBT rights. In discrimination cases where more than one ground formed part of an overall assessment of the applicant’s situation, grounds should not be considered alternatively, but cumulatively. Consequently, it was immaterial that the Government had referred to other grounds relating to various irregularities in the registration documents; the illegitimacy of one of the grounds had the effect of contaminating the entire decision.
Taking into consideration the narrow margin of appreciation and the previous finding that the decisive ground was not necessary in a democracy, those refusals to register had been differences in treatment which were not reasonably or objectively justified.
Conclusion: violation (unanimously).
The Court also held, unanimously, a breach of the applicants’ right to effective access to a court under Article 6 as their appeal had not been examined on the merits although they had seemingly followed the rules for lodging appeals as established by domestic law.
Article 41: sums ranging between EUR 10,000 and EUR 13,000 in respect of non-pecuniary damage.
(See also Jehovah’s Witnesses of Moscow and Others v. Russia, 302/02, 10 June 2010, Information Note 131; Bayev and Others v. Russia, 67667/09 et al., 20 June 2017, Information Note 208; Alekseyev v. Russia, 4916/07, 21 October 2010, Information Note 134; Barankevich v. Russia, 10519/03, 26 July 2007, Information Note 99; and Ouranio Toxo and Others v. Greece, 74989/01, 20 October 2005, Information Note 79)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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