Presentation by Tanya Lokshina, Senior Russia Researcher for Human Rights Watch, at the Hearings by the Public Chamber of the Russian Federation “On Restrictions of Freedom of Expression”
Russia is a party to the European Convention on Human Rights and the International Covenant on Civil and Political Rights, and so has undertaken legal obligations to guarantee the rights to freedom of assembly and expression and to ensure the enjoyment of those rights without discrimination. The European Court of Human Rights and the UN Human Rights Committee have both issued several decisions that make it abundantly clear to any state party that the type of legislation banning “homosexual propaganda,” which already exists in five regions of Russia and is proposed on federal level, would violate those rights and be a breach of international human rights law.
It is long established that the right to freedom of expression guarantees the expression of ideas or thoughts that might offend, shock, or disturb some sections of the population (see ECHR Handyside v. United Kingdom, judgment of December 7, 1976). Any restriction on the right to freedom of expression must be demonstrably proportionate and necessary to achieve a legitimate aim. The existing regional laws banning “homosexual propaganda” as well as the proposed federal draft law fails this test. Moreover, according to European Court case law, any measure that results in a difference of treatment in enjoyment of the right based solely on sexual orientation, amounts to discrimination – and is therefore a violation under the Convention.
Russia is already on notice. In October 2010 the European Court of Human Rights ruled that Russia had violated freedom of assembly by repeatedly denying activists the right to hold gay pride marches.
Unable to find justice in Russia, a leading gay rights advocate Nikolay Alexeyev sought the assistance of the European Court, claiming that his rights to freedom of assembly, to a remedy, and not to be discriminated against on grounds of sexual orientation (guaranteed by articles 11, 13, and 14 of the European Convention on Human Rights respectively) had been violated. In its judgment delivered on October 21, the European Court emphasized that by refusing LGBT rights activists the right to peaceful assembly and by referring to "blatantly unlawful calls" of violence against gay men and lesbians as grounds for the ban, "the authorities effectively endorsed the intentions of persons and organisations that clearly and deliberately intended to disrupt a peaceful demonstration in breach of the law and public order." The court reiterated that it would be incompatible with the underlying values of the European Convention if the exercise of rights like the freedom of assembly by a minority group were made conditional on its 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."
The European Court firmly rejected the Russian government's argument that there was no general consensus on issues relating to the treatment of sexual minorities. The ruling stated that there is “no ambiguity” about “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 freedom of peaceful assembly.”
Indeed just six months earlier in March 2010, Russia had acknowledged this by its support for the recommendation of the Committee of Ministers of the Council of Europe to end discrimination on the grounds of sexual orientation or gender identity. The document includes provisions for the right to freedom of assembly and freedom of expression without discrimination on grounds of sexual orientation or gender identity.
In response to the adoption of discriminatory homophobic legislation on a regional level, activists from relevant regions of Russia are already planning to apply to the European Court. If such legislation comes into force at a federal level, submission of a similar application to the European Court will be inevitable. And there is little doubt that, just as in Alexeyev’s case, the Court will find a violation of the European Convention, and the discriminatory legislation will need to be repealed.
In conclusion, allow me to emphasize that this legislation will do significant damage to Russia’s image internationally and, to pass it with full knowledge that it violates Russia’s international legal obligations, will call into question the essence of its commitment to international treaties it ratifies. Rejecting the federal draft law and annulling existing regional laws is an essential step to foster a normal environment for the LGBT community, in line with Russia’s international obligations.