European Court of Human Rights rules on 'gay propaganda' legislation in Russia

28 June 2017

...a look back at the week of 17 - 23 June 2017

By Simon Cosgrove

Last week saw a new twist in what many perceive as a mounting conflict between Russia and the Council of Europe, as the European Court of Human Rights ruled on 20 June 2017 in the case of Bayev and Others against Russia that Russian legislation banning promotion of homosexuality to minors encourages homophobia and discrimination. The conflict falls into place along side a number of legal cases that have seen the Russian authorities tussle with the European Court of Human Rights (most notably the Yukos case). Legal issues aside, on the one hand some see the conflict over the 'gay propaganda' law as one of cultures, as Russia asserts values that are different from those currently predominant in the West. On the other hand, some view the conflict as arising primarily in the political field, as President Putin seeks to draw on support from a nationalist conservatism to buttress his increasingly authoritarian rule. 

The 2013 law, and its regional predecessors, banned giving children any information about homosexuality (‘gay propaganda’). In its judgment, the Court found violations of Articles 10 (freedom of expression) and 14 (discrimination) in this legislation. The Court stated: “Given the vagueness of the terminology used [in the legislation in question] and the potentially unlimited scope of their application, these provisions are open to abuse in individual cases […]. Above all, by adopting such laws the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society.” 

The case had been brought by three gay rights activists, Nikolai Bayev, Aleksei Kiselev and Nikolai Alekseev, who had all been fined for breaking earlier, regional versions of the federal law in Ryazan, Arkhangelsk and St. Petersburg. They were represented at the European Court of Human Rights by Dmitry Bartenev, a prominent human rights lawyer from St. Petersburg who last year was the lead researcher on a report on LGBT rights, Justice or Complicity? LGBT Rights and the Russian Courts, published by the Equal Rights Trust, a UK-based NGO. 

As Jennifer Rankin writing in The Guardian reported: “One of the activists who brought the case was arrested after he had stood in front of a secondary school in Ryazan with placards stating ‘homosexuality is normal’ and ‘I am proud of my homosexuality’. The second and third applicants had picketed a public library in Arkhangelsk with banners listing famous Russians believed to have been gay. One of the banners said: ‘Children have the right to know. Great people are also sometimes gay; gay people also become great. Homosexuality is natural and normal.’ One of the men carried out another protest at an administrative building in St Petersburg.’ 

The applicants had taken their cases to the Russian Constitutional Court, which, however, had failed to uphold their rights. In the Ryazan case, the Constitutional Court said the law was not “disproportionately restrictive of freedom of speech.” In the St. Petersburg case, the Constitutional Court ruled that it was not within its competence to judge “whether the appellant’s actions […] were capable of causing harm to the health and moral and spiritual development of minors, including creating a distorted impression of the social equivalence of traditional and non-traditional marital relations.” In ruling on provisions in Article 6.21 of the Russian Code of Administrative Offences, the Constitutional Court said that “the federal legislature is entitled to use criteria that are based on the presumption that there exists a threat to the child’s interests […] and cannot therefore be regarded as excluding the possibility of exercising one’s constitutional right to freedom of information in this area.” 

This latest ruling by the European Court of Human Rights highlights four key aspects of the human rights situation in Russia. 

One is the Janus-like quality of Russian government policy. On the one hand, the Russian authorities insist, in particular when challenged in international fora, that there is no discrimination of LGBT people in Russia. Yet it is also clear to observers that domestically the authorities have fostered and encouraged anti-LGBT prejudice as part of its general move towards anti-Western, anti-liberal and authoritarian policies, in alliance with the conservative leadership of the Russian Orthodox Church. 

A second aspect is the apparent degree of impunity enjoyed by those who exercise violence in what might be said to be in a manner ‘in line with’ government policy. Thus, as many sources report, neither the violence against LGBT demonstrators nor violence by vigilante groups that track down and commit crimes of violence against LGBT individuals have met with effective action by the Russian authorities. This continues a pattern that has been seen with regard to members of the political opposition who are regularly harassed by 'independent' individuals and groups - yet these  individuals and groups are almost never held accountable in the courts. And this is against a background of a number of murders of high-profile critics of the authorities whose killings have either not been solved at all (for example, the case of Natalya Estemirova) or where, despite the fact that individuals have been brought to book, it is widely felt that the organizers of the killing have not been identified or prosecuted (for example, the case of Anna Politkovskaya). A the time of writing the trial of persons suspected of the murder of Boris Nemtsov is on-going. 

A third aspect is what might be called the special status of Chechnya in the Russian Federation. The most egregious recent example of the kind of impunity described above has been the recent horrific campaign in Chechnya against LGBT people. On 1 April this year Novaya gazeta reported that over 100 gay men had been brutally detained — and at least three killed — in Chechnya. There were reports of secret prisons where detained LGBT people were held and subjected to torture. On 2 April 2017 the Russian LGBT Network issued a fierce denunciation of the alleged abuses: “The Russian LGBT Network is highly disturbed and concerned about the information on the kidnapping and killing of people in Chechnya because of their sexual orientation. We are also outraged by the reaction of the officials of the Chechen Republic, who in fact justify the killings. No national and/or religious traditions and norms can justify kidnapping or killing of a human being.” The Russian LGBT Network has since reported that it has enabled over 50 LGBT people to leave Chechnya. While the government authorities have announced an investigation into the allegations, there is widespread scepticism that this will lead to those responsible being held accountable. Many consider that the regime of Ramzan Kadyrov in Chechnya enjoys a special status, fostered by President Putin, that gives the leadership in Chechnya a virtual carte blanche to act as they wish, irrespective of Russian law. For many, the weaknesses in the investigation into the murder of Boris Nemtsov, that is said to have failed to examine potential links between the killers and officials in Chechnya, is another example of this impunity. 

A fourth aspect is the role of the Russian Constitutional Court. On a wide range of issues, many observers note the Constitutional Court has failed to effectively challenge government policy in the field of human rights. The Court's rulings tend to either uphold legislation and law enforcement practice, take the view that the issue lies outside the competence of the Court, or rule that there should be relatively small, ‘technical’ amendments to legislation that otherwise must be allowed to stand (for example, by saying that the level of fines should be reduced; or the competence of government bodies should be in one way or another clarified). 

In another development, under President Putin, Russia has recently sought to buttress the Constitutional Court as an instrument to be used to prevent implementation of judgments of the European Court of Human Rights. A 2015 law controversially granted the Russian Constitution priority over judgments handed down by international courts. The law is controversial not least because of Article 15 of the Russian Constitution, which states, 'The universally-recognized norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied.' However, under the 2015 law judges of the Constitutional Court are apparently empowered to disregard rulings of the European Court of Human Rights if they consider them in violation of the Russian Constitution. Thus in a ruling on the judgment of the European Court of Human Rights that ordered Russia to pay €1.9bn in compensation in the Yukos case, the Constitutional Court said it was not possible for Russia to implement the judgment. Russia may apply for a Grand Chamber hearing in the 'gay propaganda' case. Whether or not such a hearing takes place, and whether Russia might invoke its controversial domestic law on the priority of the Constitution, remains to be seen.

Having focused narrowly on one particularly important international court ruling from last week, it might be worth concluding with a review of a series of judgments by domestic courts. These rulings highlight, in particular, the key issues of judicial independence, the judicial response to allegations of torture, the wide interpretation of 'anti-extremism' law, the harshness of treatment of defendants and potential abuses of psychiatry. 

The case of Moscow activist Denis Bakholdin currently being held in a remand prison in Bryansk three months after he disappeared in Kyiv, is cause for concern. Denis Bakholdin, who had taken part in a number of protests in Moscow, had been living in Kiyv since the end of 2014. However, on 17 March 2017 Denis Bakholdin's mother, Nadezhda Bakholdina, has reported she was officially told her son had been arrested in Russia 'while trying to illegally cross the Russian-Ukrainian border.' Nadezhda Bakholdina says her home was searched by FSB agents at the end of May and the hard drive from her computer seized. She was reportedly allowed to visit her son on 5 June, when he alleged he had been tortured. He has been charged with 'involvement in an extremist society’ (under Article 282.1 § 2 of the Russian criminal code) – namely Right Sector. 

On 19 June Moscow City Court dismissed an appeal against the 18-month sentence handed down to Yury Kuly charged with grasping the arm of a police officer during the Moscow demonstration on 26 March. Memorial Human Rights Centre has recognized Kuly a political prisoner. 

On 20 June a court in Grozny handed down a suspended sentence to Rizvan Ibragimov on a charge of extremism for views expressed in a book on the religious history of Chechnya. He alleges he was subjected to torture. 

On 20 June Moscow City Court upheld the conviction and 100,000 rouble fine imposed on former head of the Russian press agency Boris Mironov for extremism in a book in which he allegedly expressed anti-semitism and called for the violent overthrow of the government

Also on 20 June Crimean Tatar leader Akhtem Chiygoz, in pre-trial detention since January 2015 on charges of organizing an illegal demonstration in the capital of Crimea, Simferopol, in February 2014 (i.e. before the Russian annexation of Crimea), was allowed to see his dying mother for 10 minutes (on 15 June the High Court of had Crimea rejected Chiygoz's request to see his mother). 

On 21 June the trial of Crimean Tatar leader Ilmi Umerov for alleged separatism, which had begun on 7 June, resumed in Simferopol. Umerov has alleged that the charges against him are based on inaccurate Russian translations of the original in the Crimean Tatar language. In August 2016 Umerov was held in a psychiatric clinic for a month for a psychiatric evaluation. 

Also on 21 June Krasnodar activist Natalya Kudeeva (Smirnova), a supporter of Vyacheslav Maltsev (in 2016 a candidate for the PARNAS party) was jailed for 14 days for reposting Nazi symbols on her social media page. It has been claimed her page had been hacked. 

On 22 June Moscow City Court upheld a court ruling that Bolotnaya Square defendant Maksim Panfilov, who was charged in 2016 with participating in the 2012 Bolotnaya Square demonstration and snatching a helmet from a riot officer’s head. The court ruled he must receive compulsory treatment as an in-patient in a psychiatric hospital. 

Finally, on 23 June the Central Electoral Commission decided that Aleksei Navalny, currently serving a 25-day jail term for organizing protests on 12 June, would not be allowed to stand as a candidate in the 2018 presidential election.

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