Synopsis by Dr John I Fleming
On the 21st of October 2010 The European Court of Human Rights (ECtHR), in the case of Alekseyev v Russia, found that the banning of “Gay Pride marches” by Moscow authorities contravened Article 11 (and Articles 13 and 14 in reference to Article 11) of the European Convention on Human Rights (ECHR).
On the 21st of October 2010 The European Court of Human Rights (ECtHR), in the case of Alekseyev v Russia, found that the banning of “Gay Pride marches” by Moscow authorities contravened Article 11 (and Articles 13 and 14 in reference to Article 11) of the European Convention on Human Rights (ECHR).
It is the role of the Committee of Ministers (CM) to supervise the implementation of the findings of the ECtHR. In subsequent meetings of the CM, questions were raised about other laws in various parts of the Russian Federation which prohibited the propaganda on homosexuality being distributed to minors. The CM sought clarification from the Russian authorities as to how such laws could be compatible with the implementation of the Court’s decision in Alekseyev v Russia.
A response to the concerns of the CM has been prepared by two bodies, The Family and Demography Foundation and the Interregional Public Organization “For Family Rights”. Both “are Russian non-governmental organizations working to support the family, the “natural and fundamental group unit of society” entitled to “protection by society and the State” (Article 16(3) of UDHR), which includes protecting the relevant fundamental human rights. Both are independent NGOs and receive no public funding.” The response is titled “Communication to the Committee of Ministers of the Council of Europe concerning Alekseyev v. Russia (application no. 4916/07” (“the document”).
In this response the two NGOs argue that the laws prohibiting the propaganda of homosexuality to minors (propaganda to minors) are, in fact, compatible with Alekseyev v Russia. Moreover, they also call into question the findings in Alekseyev v Russia, suggest that the ECtHR is influenced by ideology rather than law, does not pay sufficient respect to differing moral views in the different societies which constitute the EU, and place little importance on the need to protect children from being influenced to enter into immoral and unnatural relationships with all of the physical and mental health impairments that that might bring.
Russian laws against propaganda to minors in ten regional legislatures, with similar laws under consideration in other Russian regions. As well there is a draft federal bill which has already passed the first reading stage in the Russian State Duma.
The purpose of these laws:
This legislation is aimed at protecting the children from information posing threat to their health and development. It is being introduced in accordance with the federal laws aimed at protecting the rights and interests of children, specifically Article 14(1) (“Protecting the child from information threatening his health, moral and spiritual growth, its promotion and propaganda”) of the 1998 Federal Law On Fundamental Safeguards of the Rights of the Child (no. 124-FZ of 24 June 1998) which charges Russian authorities with taking “action to protect the child from information threatening his health, moral and spiritual growth, its promotion and propaganda”. It should be noted that among types of information threatening health and/or development of children Article 5(4) of the law lists information undermining family values.
“The document” shows that the Constitutional Court of the Russian Federation has found that these laws in no way violate the constitutional rights and freedom of its citizens. The Supreme Court reached similar conclusions. The courts have made it clear that these laws do not prevent the public discussion of homosexuality or dissemination of information on the subject or debates about the social status of sexual minorities. It simply prohibits the propagating of these ideas to minors who, because of their immaturity, are not yet ready to critically evaluate such information.
“The document” also admits that the Russian laws in question somewhat restricts the freedom of expression protected in Article 10(1) of the ECHR. But this is legitimate since the ECHR itself places restrictions on the freedom of expression in Article 10(2) of the ECHR:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. [Emphasis added by JIF]
“The document” then goes to specify just how the Russian laws protect the health of children, the family, and public morality. In its next three sections the authors outline their reasoning:
1. The health risks inherent in the homosexual lifestyle as objectively identified in the academic literature. This includes greatly increased risks of STIs including HIV, as well as anal and rectal cancer. Reference is also made to far greater incidences of serious mental conditions and substance abuse among practising homosexuals. All of this means that propagating the homosexual lifestyle to children constitutes a serious risk to their future health status.
2. Where the family is concerned, the Russian Constitutional Court said that the Russian laws were “aimed at protecting the family in its traditional meaning”. The laws prohibiting the propagation of homosexuality to minors are enacted “to prohibit deliberate attempts to make children form ‘perverted notions of traditional and non-traditional conjugal relations being socially equivalent’. In other words, one of the aims of this law is to protect the family in its child care and upbringing aspect.”
In addition “the document” refers to the idea of the protection of “public order” or, to use the terms of Article 10(2) of the ECHR, “the prevention of disorder”. “The document” remarks that it is “nearly universally acknowledged that the term encompasses fundamental principles enabling the continuous existence of a society” and provides evidence for that. Tellingly, “the document” then reminds the CM that the ECtHR’s own case law reflects the idea that the protection of the family “must certainly be viewed as an integral part of the protection of public order (ordre public). “The document” then specifically refers to Karner v Austriain where the ECtHR noted that, considering whether there are indications of discrimination in a treatment, it “can accept that protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment” (Karner v. Austria, application no. 40016/98, 24.07.2003, para. 40)
3. An impressive range of authorities allow for the protection of public morals referred to in Article 10 (2) of the ECHR. A number of universally recognized international human rights norms recognize the protection of morals as a legitimate justification for restricting the right to freedom of expression.
In particular, Article 29(2) of UDHR acknowledges that in the exercise of his rights and freedoms a person can be “subject . . . to such limitations as are determined by law . . . for the purpose of . . . meeting the just requirements of morality”.
Article 19(3)(b) of ICCPR accepts that the right to freedom of expression, including the freedom to impart information and ideas, can be subject to restrictions provided by the law necessary for, among other things, “the protection . . . of public . . . morals”.
Article 13(2)(b) of CRC recognizes that the right of the child to freedom to seek, receive and impart information and ideas can be subject to certain restrictions provided by the law necessary for, in particular, the “protection . . . of public morals”.
Finally, Article 10 of UCHR explicitly acknowledges that the exercise of freedoms provided therein “may be subject to …. restrictions …. prescribed by law and are necessary in a democratic society …. for the protection of … morals”.
Said principle can therefore be regarded as universally recognized by international law.
“The document” goes on to show that public morality in Russia disapproves of the homosexual lifestyle seeing it as a perversion of human nature, that these views are held by atheists as well as religious believers, and that 87% of Russians oppose ‘Gay Pride marches’.
“The document” points out that the ECtHR has form when it comes to imposing private ideological beliefs through some of its judgments (eg Christine Goodwin v. United Kingdom).
It concludes by saying this:
"Were the Court to deliver judgements in such important spheres as protection of family and marriage, rights of parents and children, and public order and morals under the influence of controversial ideological concepts, this potentially might delegitimize its judgements in the eyes of at least some of sovereign European states."
This important document contains a wealth of detailed argumentation to support its response to the CM’s concerns about Russian laws designed to protect children from homosexual propaganda, to protect the family, and to protect public morality.
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