At a time of increased media attention on laws in the Russian Federation that ban either 'homosexual propaganda' (at a regional level) or propaganda of 'non-traditional sexual relations' (at a national level) to minors, it is worth pausing to consider what action the European Court of Human Rights has taken in respect of these legislative developments.
Although the Court recently communicated the complaint in Bayev v Russia, which contains linked complaints under Article 10 of the Convention about the existence of regional laws regulating 'homosexual propaganda', there has been no judgment in respect of this or any other related complaint. This is despite the application in Bayev being lodged with the Court four years ago, in 2009.
Of course, all complaints to Strasbourg take a considerable time from application to judgment, but in the absence of the Court having ever issued a positive Article 10 judgment in respect of sexual orientation discrimination, and the increasingly hostile environment for sexual minorities in Russia and other European states, the Strasbourg organs could have ensured that a definitive judgment on this issue was given by now.
This is not to say the Council of Europe have not been dealing with the question of anti-gay law in Russia. The Council of Ministers, in their supervision of the execution of the judgment in Alekseyev v Russia, have made repeated statements about the laws. The Venice Commission issued a strongly worded opinion on the subject back in June 2013, the substance of which was supported in a Resolution by the Parliamentary Assembly of the Council of Europe. Secretary General Jagland has also expressed his concern about homosexual propaganda laws.
Whilst these activities at the Council of Europe are welcome, they are no substitute for a direct judgment from the Court which, if it found that the propaganda laws were in violation of Article 10 of the Convention, would bind the Russian government to undertake measures to address this. If the Court concluded that the mere existence of such laws violated the Convention right to freedom of expression, it would effectively require the Russian Federation to significantly modify if not repeal these laws.
However, the judgment in Bayev v Russia could be years in the coming. Worse still, no complaint has been communicated about the federal law prohibiting propaganda of 'non-traditional sexual relations' and, because the Court does not make public a list of complaints that have been lodged, it is difficult to know if any complaint has been made.
As the world looks on to the plight of LGBT people in Russia, and claims about a rising tide of violence are increasingly made, it seems essential that the Court, the highest authority on human rights in Europe, provides a definitive judgment at the earliest time on this central question: do laws that regulate forms of public expression about homosexuality violate the human right to freedom of expression?