Thursday, 18 April 2013

Alekseyev v Russia - Russian NGOs defend 'homosexual propaganda' laws

In a Communication to the Committee of Ministers of the Council of Europe two NGOs based in the Russian Federation - the Family and Demography Foundation, and the Interregional Public Organization 'For Family Rights' - have provided an extensive defence of recently enacted 'homosexual propaganda' laws in Russia. 

The Communication relates to the Committee of Minister's ongoing supervision of Alekseyev v Russia which I have detailed in a number of earlier posts.

The principle argument of the NGO's Communication is that 'there is no incompatibility between ECtHR's judgment on Alekseyev v Russia and Russian regional laws prohibiting propaganda of homosexuality to minors'. 

To substantiate this claim (as I imagined in my recently published Working Paper) these NGO's have cited the Court's reasoning from §86 of the Alekseyev judgment ('There is no scientific evidence or sociological data at the Court's disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities' social status, would adversely affect children or “vulnerable adults”') to argue that:

'The Court, therefore, completely overlooks the issue of purposeful propaganda of homosexualism targeted at children, which clearly exceeds mere mention of homosexuality, or open public debate about sexual minorities' social status'.

The NGO's provide extensive detail about why 'purposeful propaganda of homosexualism targeted at children' can not be considered protectable as freedom of expression under Article 10(1) of the Convention and can justifiably be regulated under the restrictions contained in Article 10(2). 

In summary, an interference with the freedom of expression of homosexuals is argued to be justified because:
  1. Homosexual propaganda laws protect the 'health of children'. The NGO's argue that: 'Extensive scientific data reliably links homosexual lifestyle to increased risks to one's physical and mental health'. In light of this, they argue, any claim of discrimination under Article 14 is also negated because the 'objective data linking homosexual behaviour to heightened physical and mental health risks' means that protecting children from exposure to homosexuality has 'entirely objective and reasonable justifications'. 
  2. Homosexual propaganda laws protect 'the family'. The NGO's argue that the heterosexual family is foundational to the 'public order' outlined in Article 10(2) which allows for an interference with freedom of expression. 
  3. Homosexual propaganda laws protect 'public morals'. The NGO's argue that Russia should enjoy a wide margin of appreciation to determine the restrictions on freedom of expression that are necessary to protect its domestic moral standards.
These points are fairly easy to contest using the Court's recent case law insofar as they relate to public assemblies such as 'gay pride' events. Perhaps because they recognize this, later in the Communication the NGO's state that they feel 'compelled to raise a number of issues with ECtHR's judgments on Alekseyev v Russia, as well as a number of other cases'. They note that 'these judgments contain serious flaws, which cause grave concerns' and that should the 'Court's case-law continue to include such flaws, this might significantly undermine its legitimacy and the authority of its decisions'. The key 'flaws' identified are:
  1. A 'disregard for the need to protect minors'. The NGO's accuse the Court of failing to recognize the key reasons why a regulation of homosexuality in the public sphere is necessary to protect minors in Russia. 
  2. A 'disregard for the interests of the child'. The NGO's accuse the Court of failing to 'properly take into account the interests of the child in some of its judgements, particularly on cases dealing with the issue of the upbringing and adoption of children in relation to the rights of so-called "sexual minorities"'. The Court, they argue, has 'thrown away' internationally recognized norms relating to heterosexual parenting and child rearing and 'totally ignored the interests of the child'. In place of a concern with children the Court is said to have substituted 'artificially contrived legal concepts'.
  3. A disregard for 'international consensus'. The NGO's accuse the Court of substituting international consensus with 'trends', a practice they describe as 'extremely dangerous'.
  4. 'Deciding on the basis of ideology'. The NGO's argue that the 'ECtHR in its judgments at times finds itself depending on controversial ideological principles'. 
  5. Reaching 'untenable' judgments that threaten the Court's legitimacy.
These criticisms are not novel (and are the subject of wider debate about the Court) but their use does reveal an implicit recognition that the Court's existing case-law is not in favour of this NGO's arguments. 

Nevertheless, insofar as the NGO's arguments relate to a wide range of different forms of public expression (and not just gay pride events), they demonstrate that the Court will be required to significantly evolve its jurisprudence in respect of Article 10 if it is to recognize that homosexual propaganda laws are a violation of the ECHR. 

My Working Paper available on SSRN shows where such evolution is needed:


The Committee of Ministers will consider this Communication at a forthcoming quarterly DH meeting. 


[If after reading this post you feel in need of something more cheerful or uplifting, perhaps yesterday's song in the New Zealand Parliament, just after the Marriage (Definition of Marriage) Amendment Bill was successfully read for a third time, will suffice.]
 


   

1 comment:

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