Legal Case of the Week: Bayev and Others v. Russia [ECtHR]

posted 26 Jun 2017, 09:46 by Rights in Russia   [ updated 27 Jun 2017, 03:24 ]
On 20 June 2017 the European Court of Human Rights ruled in the case of Bayev and Others against Russia that Russian legislation that bans promotion of homosexuality to minors encourages homophobia and discrimination. The Court found violations of Article 10 of the Convention (freedom of expression) and Article 14 (discrimination) in conjunction with Article 10 of the Convention. Three Russian gay rights activists had made the application to the European Court against the 2013 federal law that bans propaganda of homosexuality to minors. The three had been arrested in the years 2009-12 when they had protested against laws enacted in Russian regions which later became the model for the federal statute. As The Guardian reports:

'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 three men had been fined for breaking the law and appealed to the ECHR in Strasbourg after Russia’s constitutional court dismissed their cases. In a long-awaited ruling the ECHR took apart the arguments put forward by Russian government lawyers, rejecting claims the law protected public morals, health and other people’s rights.'

The applicants were represented in court by Mr Dmitry Bartenev, a human rights lawyer practising in St. Petersburg. 

In what The Guardian described as a 'comprehensive demolition of the arguments advanced by Russian [government] lawyers, the European Court of Human Rights in its ruling stated: “By adopting such laws the [Russian] authorities reinforce stigma and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society." The judgment was adopted on the basis of majority of six out of seven of the judges. The Russian judge Dmitry Dedov dissented.

The Guardian quoted one of the applicants, Nikolai Alexeev, a gay rights activist, as saying the ruling was 'an enormous court victory for LGBT people in Russia. [...] We have managed to legally prove that by adopting those laws Russian authorities breached their international commitments under the European convention.'

In a statement Denis Krivosheev, Amnesty International’s Europe and Central Asia Research Deputy Director, said in reaction to the judgment: “This legislation has always been nothing short of homophobic. The law is blatantly discriminatory and violates the right to freedom of expression, and its introduction has contributed to a climate of homophobia and violence targeting LGBTI people in Russia. We strongly welcome today’s ruling, not least given the renewed urgency over investigating the reports of the terrifying campaign of mass abduction and torture of men perceived to be gay in Chechnya. We reiterate our call on the Russian authorities to repeal its homophobic legislation, end discriminatory practices and fully respect every person’s right to freedom of expression. They should also effectively investigate all instances of homophobic violence in Russia.”

Article 10 of the European Convention on Human Rights reads: 
"ARTICLE 10 Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 
2. 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."

Article 14 of the European Convention on Human Rights reads: 
"ARTICLE 14 Prohibition of discrimination 
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

Commenting on Article 14 of the Convention, UK Human Rights Blog writes: "This right is parasitic; it is of no use to someone wishing to complain of discrimination who cannot establish that another free-standing Convention right is engaged. [...] So, Article 14 must be pleaded in relation to some other substantive right in the Convention. It is not necessary to establish an actual violation of another Article; if the claim comes within the ambit of another protected right then it is possible for the applicant to succeed on discrimination alone, even if the primary violation has not been established, or the Member State’s action has been found to come within one of the permissible exceptions to that right (Belgian Linguistic Case (1967) 1 EHRR 252)."

Sources:
'CASE OF BAYEV AND OTHERS v. RUSSIA,' European Court of Human Rights, 20 June 2017
Jennifer Rankin, 'Russian "gay propaganda" law ruled discriminatory by European court,' The Guardian, 20 June 2017
'ECHR rule exposes homophobic nature of Russian “gay propaganda law”,' Amnesty International, 20 June 2017
European Convention on Human Rights, Council of Europe website
'Article 14,' UK Human Rights Blog

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