LGB rights in Russia - Alekseyev v Russia (an update)

In advance of the forthcoming human rights meeting by the Committee of Ministers of the Council of Europe on the 23-25 September 2014 (1208DH Meeting) the Russian Federation have submitted an additional action plan in respect of Alekseyev v Russia. 

The additional action plan is a lengthy document which covers three keys areas: 

• first, it provides information about the federal and regional legislation relating to 'propaganda of non-traditional sexual relations among minors' (I detailed the nature of the propaganda laws in a working paper last year, but since then several Russian regions have repealed their local legislation in light of the federal law coming into force); 
• second, it provides information about how domestic authorities have handled requests to hold public events relating to sexual orientation and the rights of sexual minorities; 
• and third, it reports on the domestic remedies available to citizens who appeal the decisions of public authorities who refuse permission for holding public events. 

Close reading of this document is recommended since it contains important data relating to the current state of both federal and regional law, and how it is being enforced to limit the public assembly and freedom of speech of sexual minorities. 

A key aspect of the additional action plan

Of particular note in the action plan is the now familiar argument by the Russian authorities that the 'propaganda' laws do not discriminate against sexual minorities but exist only to protect minors:

"These law do not provide for a general prohibition or censure of homosexuality but are rather aimed at protection of the morals and spiritual development of the minors. These law do not contain any indication of discrimination and by implication do not allow any excess actions by the public authorities. The laws are not aimed at banning non-traditional sexual relations or their disapproval, but rather at the protection of mental, moral and spiritual development of the children".

The document shows that this interpretation of the propaganda laws is used as a basis for justifying the repeated refusal by domestic authorities to grant permission for public events relating to the rights of sexual minorities. 

For example, in Moscow the public authorities recently refused 92 applications by Mr. Alekseyev and others to hold public events because:

"the conducting of public events in the chosen by the organisers place of the minors' mass gathering may negatively influence their mental development, especially as the topic of the many of the declared public events had an intentionally provocative nature".

An example of the 'provocative nature' of the public events said to threaten the mental development of minors is given as:

"Congratulations to the Muscovites and the capital guests with the coming New Year 2014 on behalf of the homosexual Fathers Frost and transgender Snow Maidens".

When will the Committee of Ministers take action?

I have argued in several previous posts that the action taken by the Committee of Ministers in supervising the execution of the Alekseyev judgment is inadequate. 

It is inadequate because, despite what the Russian authorities continue to state, the Alekseyev judgment is clear that suppression of public discussion of homosexuality on the grounds that it is in the presence of minors is not necessary in a democratic society:

"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'". (§ 86)

The Alekseyev judgment is also clear that whilst the suppression of the public assembly of sexual minorities may be proscribed by law, and that the enforcement of such law may be argued to pursue a legitimate aim, this does not justify the interference with the right to freedom of assembly: "irrespective of the aim and the domestic lawfulness of the ban [on 'gay pride' events], it fell short of being necessary in a democratic society" (§ 69).

Although in my working paper I criticised the Strasbourg organs for their historic failure to establish the principle that the suppression of public discussion of homosexuality is in violation of the Convention - which has resulted in a complete lack of Article 10 jurisprudence in this area - the Alekseyev judgment is absolutely clear that the public assembly of sexual minorities cannot be justified solely to 'protect' children from exposure to a discussion of homosexuality.

Four years after the judgment in Alekseyev, and in light of the arguments made by the Russian authorities, the Committee of Ministers needs to decisively state that the Russian Federation has comprehensibly failed to comply with the judgement.