EHRM, 20-06-2017, nr. 67667/09, nr. 44092/12, nr. 56717/12

The applicants were born in 1974, 1984, and 1977 respectively. The first and the third applicants live in Moscow, and the second applicant lives in Gryazy, Lipetsk Region.

The applicants are gay rights activists. They were each found guilty of the administrative offence of ‘public activities aimed at the promotion of homosexuality among minors’ (пyбличhые дейcTbия, hапpаbлеhhые hа пpoпагаhдy гomocекcyали3mа cpеди hеcobеpшеhhoлеThиx).

The Russian Constitution guarantees equality of rights and freedoms to everyone, irrespective of, in particular, sex, social status or employment position (Article 19). It also guarantees the right to freedom of thought and expression, as well as freedom to freely seek, receive, transfer and spread information by any legal means (Article 29). It provides that rights and freedoms may be restricted by federal laws for the protection of constitutional principles, public morals, health and the rights and lawful interests of others, and to ensure the defence and security of the State (Article 55).

Law no. 172-22-OZ of the Archangelsk Oblast of 3 June 2003 ‘On Administrative Offences’ provides:

Law no. 41-OZ of the Ryazan Oblast of 3 April 2006 ‘On Protection of the Morality of Children in the Ryazan Oblast’ provides:

Law no. 182-OZ of the Ryazan Oblast of 4 December 2008 ‘On Administrative Offences’ provides:

Law no. 113-9-OZ of the Archangelsk Oblast of 15 December 2009 ‘On separate measures for the protection of the morality and health of children in the Archangelsk Oblast’ provides:

Law no. 273-70 of St Petersburg of 31 May 2010 ‘On Administrative Offences in St Petersburg’ provides:

Federal Law no. 436-F3 of 29 December 2010 ‘On the Protection of Children from Information that is Harmful to their Health and Development’:

Federal Law no. 124-FZ of 24 July 1998 ‘On the Main Guarantees of the Rights of the Child in the Russian Federation’ provides:

Code of Administrative Offences of the Russian Federation provides:

40. The United Nations Human Rights Committee examined a complaint about an administrative penalty imposed under Law no. 41-OZ of the Ryazan Oblast (see Fedotova v. Russian Federation, Merits, Communication No 1932/2010, UN Doc CCPR/C/106/D/1932/2010, IHRL 2053 (UNHRC 2012), 31 October 2012, United Nations Human Rights Committee [UNHRC]) and found as follows:

Given their similar factual and legal background, the Court decides that the three applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

The applicants complained about the ban on public statements concerning the identity, rights and social status of sexual minorities. They relied on Article 10 of the Convention, which reads as follows:

The applicants alleged that the ban on public statements concerning the identity, rights and social status of sexual minorities was discriminatory, given that no similar restrictions applied with regard to the heterosexual majority. They relied on Article 14 of the Convention taken in conjunction with Article 10 of the Convention. This provision reads as follows:

Article 41 of the Convention provides:

To my regret, I voted against finding a violation of Article 10. The Court has found that the legal provisions in question do not serve to advance the legitimate aim of the protection of morals, and that such measures are likely to be counter-productive in achieving the declared legitimate aims of the protection of health and the protection of the rights of others.

Briefly, my reasoning is as follows. The Court refused to accept that the interference had a legitimate aim, namely the protection of public morals, public health and the rights of others. The Court did not take into account the fact that the impugned Law sought to protect the privacy (including the dignity and integrity) of the children and the convictions of their parents as to how their children should organise their family life. In the present case the Court deals not with the conflicting views, but with the conflict of rights, namely, the right to freedom of expression and the right to private and family life. In the situation of conflicting interests in cases regarding freedom of expression the Court usually strikes a balance between conflicting rights. The Court completely refused to do that in the present case, even in the part of the judgment assigned to the analysis of the rights of others.

The problem is that the Court performed its analysis under Article 10 in a manner applicable to discrimination cases. The applicants had insisted that the Law sought to oppress the sexual minority and that this was incompatible with the values of diversity, tolerance and broadmindedness. The Court supported that view and reiterated that it would be incompatible with the underlying values of the Convention if the exercise of the Convention rights by the minority group were made conditional on its being accepted by the majority (see paragraph 70 of the judgment). Again, the present case is not about whether the majority should accept that homosexuality is normal or natural. This problem is an integral part of freedom of expression. When you disseminate your ideas or views, you expect to convince others so that they accept your position and agree with you. However, the right to freedom of expression could be limited if it conflicts with the rights of others, to the extent that it could destroy those rights. The Court had to strike a balance between those conflicting rights rather than considering whether the disseminated views should or should not be accepted by the majority.

Owing to the above inconsistencies, the Court did not involve general principles in the sphere of private and family life in the present case. This is again unusual, because the present case cannot be resolved without considering elements such as the positive obligations of the State, the margin of appreciation, or principles governing limitation of freedom of expression.

Certainly, the notion of positive obligations was involved in the present case. According to the Court's own general principles, Article 8 of the Convention does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia, Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013).

Under the margin of appreciation doctrine, which takes into account how the Convention is interpreted at a national level, States are given a certain amount of discretion in how they regulate expression (see Handyside v. the United Kingdom, 7 December 1976, §§ 47–50, Series A no. 24). The extent of this discretion, which is subject to supervision by the Court, varies depending on the nature of the expression in question. Whereas States only have a narrow margin of appreciation in respect of political expression, they should enjoy a wider margin of appreciation in respect of public morals, decency and religion.

Owing to its wide margin of appreciation and its positive obligation towards children and their families, the State concluded that the impugned measure was necessary in a democratic society. Unfortunately, the Court refused to apply the proportionality test in full.

Perhaps the Russian authorities are the only ones who would like to protect private life in this way. No comparative research was carried out in the present case. However, the Court has already respected the margin of appreciation when a State (being in the minority) protected the right to life of the embryo in the case of Parrillo v. Italy ([GC], no. 46470/11, 27 August 2015) or traditional values in the case of Lautsi and Others v. Italy ([GC], no. 30814/06, 18 March 2011). That means that in a situation where the State is in the minority among European States, the European consensus does not come into play if the State has demonstrated more scrutiny in a sensitive case. The Court also acted in the best interests of the child in the case of Dubská and Krejzová v. the Czech Republic ([GC], nos. 28859/11 and 28473/12, § 165, ECHR 2016), even though the risk was one of a general nature and was not imminent. The best interests of the child, as required by the Convention on the Rights of the Child and the ECHR, were not the subject of consideration by the Court in the present case.

As regards the limits to freedom of expression, the Court has previously found that Article 10 § 2 of the Convention stated that freedom of expression carried with it ‘duties and responsibilities’, which also applied to the media even with respect to matters of serious public concern. These duties and responsibilities are liable to assume significance when there is a question of infringing the ‘rights of others’ (see Axel Springer AG v. Germany [GC], no. 39954/08, § 82, 7 February 2012, with further references).

The Commission previously interpreted Article 17 of the Convention in a way that the right to freedom of expression might not be used by any group in order to lead to the destruction of any of the rights and freedoms granted by the Convention (see Kuhnen v. Federal Republic of Germany, no. 12194/86, 13 May 1988, and D.I. v. Germany, 26551/95, 26 June 1996). The new Court has also encouraged any measures aimed at protecting children from sexual abuse, whether real or potential. In the case of K.U. v. Finland (no. 2872/02, 2 December 2008) concerning the positive obligations of the State to protect children from being targeted by paedophiles via the Internet, the Court stressed that the legislature should have provided a framework for reconciling Internet services with the protection of the rights and freedoms of children and other vulnerable individuals. The Court preferred ‘to highlight these particular aspects of the notion of private life, having regard to the potential threat to the applicant's physical and mental welfare brought about by the impugned situation and to his vulnerability in view of his young age’ (ibid., § 41). In the case of Kaos GI v. Turkey (no. 4982/07, 22 November 2016) regarding the distribution of a magazine published by a LGBT society, the Court supported the measures taken to prevent access to the publication by specific groups of individuals including minors, as such measures satisfied the criterion of a pressing social need.

The above case-law was not used by the Court in the present case. Instead, the Court referred to paragraph 86 of the Alekseyev judgment (Alekseyev v. Russia, nos. 4916/07 and 2 others, 21 October 2010), saying that there was no scientific evidence or sociological data suggesting that the mere mention of homosexuality in the public domain would adversely affect children. Such a liberal position ignores the fact that the sexuality education of children is a very delicate process which should be handled on an individual basis. In other cases the Court has usually supported measures to protect children from ‘broadcasts containing violence or any other material likely to impair their physical, mental or moral development’, if such materials exploited children's inexperience and credulity (see Sigma Radio and Television Ltd v. Cyprus, §§ 15, 16 and 200, nos. 32181/04 and 35122/05, 21 July, 2011). That means that the forcible informing of children without their desire or consent, in any form, about sex in general should be prevented; as regards non-traditional sex, it is a much more complex issue on which children should be informed as late as possible when they become mentally mature.

In the present case, freedom of expression conflicts with the private life of the children and the right of their parents to educate their children in accordance with their religious and philosophical convictions. The State took measures to protect those rights against such interference and destruction. However, the Court ignored the above risk stating that the Convention did not guarantee the right not to be confronted with opposite opinions. The Court makes reference to the cases of Appel-Irrgang and Dojan (both cited above, see paragraph 81 of the judgment); however those cases dealt with education relating to ethics, inter-cultural dialogue, and awareness of the problem of sexual abuse of children by strangers. In the present case the purpose of the demonstration is the opposite — to raise awareness of non-traditional sex, thus making children more vulnerable to sexual abuse. Such a dangerous approach creates grey zones in sensitive areas of fundamental rights where the Convention becomes ineffective.

According to the Court's case-law the concept of private life covers, in particular, the psychological, physical and moral integrity of a person and can embrace gender identification and sexual orientation (see Axel Springer, cited above, § 83; K.U. v. Finland, no. 2872/02, § 41, ECHR 2008; and X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91).

The fundamental principles concerning private life and freedom of expression and the criteria relevant for the weighing-up of the competing interests have also been summarised in the case of Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, ECHR, 2012). However, in the above case the Court assessed the privacy of public figures, not the impact of disseminated information on the dignity and integrity of the children, thus making the context of analysis quite different.

In the context of the right to private and family life, I would like to present some important elements which, in my view, are vital for the proper examination of the present case.

This element of privacy was not seriously taken into consideration by the Court. The Court did not make use of the Convention on the Rights of the Child (CRC), which plays a special role, however, in understanding the importance of the vulnerability of the child. The CRC provides that the child, by reason of his physical and mental immaturity, needs special safeguards and care. The CRC obliges the States to respect the right of the child to preserve his or her identity without unlawful interference. States should take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, including sexual abuse. States should take measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity (Articles 8, 9 and 34).

Mental immaturity is a decisive element of vulnerability. It is well known that children are vulnerable and credulous because of their lack of experience and incapacity to judge. Children may easily become interested in any information or ideas, especially in homosexual relations, without understanding their nature. The idea that same-sex sexual relations are normal indeed creates a situation where they are ready to engage in such relations, just because of the curiosity which is an integral part of a child's mind. This is how the dissemination of ideas works vis-à-vis children. The Court has already supported the protection of children from any detrimental information (even when not linked to sexual relations, in particular, in the Sigma Radio and Television case).

Even if they do not directly create a situation of violence — if based on a ‘mutual agreement’ — sexual relations with minors are prohibited in many countries because their legal capacity (and therefore, adequate understanding of information) is limited due to their age and lack of life experience. Regulation may differ depending on the age of the minor and the local traditions and environment, but in this sphere of criminal policy the State should enjoy a wide margin of appreciation.

The Government stressed that a positive image of homosexuality would be detrimental to their development and make them vulnerable to sexual abuse. The Court, however, upheld the applicants' objection to the effect that protection against such risks should not be limited to same-sex relationships; the same positive obligations should be equally relevant with regard to opposite-sex relationships. The Court supported the applicants' view that criminal liability for sexual abuse, irrespective of sexual orientation, is sufficient, and found that it would be a manifestation of predisposed bias to assume that minors were more vulnerable to abuse in the context of homosexual relations (see paragraph 79 of the judgment).

The above reaction of the Court deals more with the context of discrimination and it does not take into account the fact that any information about sexual relations imparted by strangers to children could be detrimental to their integrity. I should mention that the public demonstration to children (even from 16 to 18 years old) of sexual relations between men and women is also prohibited by the same Law. In particular, section 10(5) of the Law prohibits any images inciting an interest in sexual relations regardless of their nature. I believe that this provision should be taken into account.

I would agree with the applicants that this is just a neutral dissemination of information if the problem of paedophilia were completely resolved. According to the statistics, every year up to 50,000 children in Russia are subjected to sexual abuse (in the USA, according to David Finkelhor1., there are approximately 150,000 such cases, therefore the statistics in Russia seem to be credible). They were all considered victims and they all played a passive role in sexual relations. Only half of such cases constitute domestic violence. Up to thirty per cent of children subjected to sexual abuse are boys, and seventy per cent are girls. If we note that all offenders are men, then same-sex violence constitutes a significant part of such cases, so that it deserves to be taken into consideration by making a special reference to same-sex relations in the law.

David Finkelhor shows that child sexual abuse requires two elements: sexual activity and abusive conditions (coercion or a large age-gap between the participants, indicating a lack of consensuality). Sexual activity has a broad meaning. It includes activity intended for sexual stimulation. Sexual abuse may have different forms, and there is no uniform definition. This phenomenon may include an abusive impact on the child's sexual development or emotional maltreatment. In any event, an unauthorised dissemination of information seeking to attract a child's interest in sexual relations may destroy the child's own perceptions of private and family life. The risks become higher depending on unsatisfactory family and economic problems, in particular where there is a lack of supervision of, or attention to, the children by their parents. Needy and emotionally deprived children are vulnerable to the ploys of abusers, who commonly entrap children by offering affection, attention and friendship2..

The above could be used by way of sociological data, as requested by the Court in the previous case of Alekseyev (cited above) regarding gay parades. It should be noted that in the Alekseyev case the Court did not examine the situation where views were expressed in front of a school or children's library, as in the present case.

Again, the Law is limited to the promotion of any sexual relations vis-à-vis children. The applicants in the first and second episodes held their demonstrations in the vicinity of facilities specially assigned to children. In the third episode the demonstration was held near the building of the City Administration, and it should be clarified whether the authorities applied the Law correctly. The Russian Constitutional Court expressed the same position and granted the applicants the right to reopen administrative proceedings in respect of all three episodes to clarify whether the demonstrations targeted children. However, the Court did not take this into account, simply saying that the Russian Constitutional Court had dismissed the claim. This also raises the issue of the exhaustion of effective remedies, which the Court should have examined of its own motion, at least in relation to the third episode.

However, the position of the Court could be understood as saying that such demonstrations, even if held in the vicinity of the schools, are relevant and even useful in a democratic society. I am not sure that the parents would agree with such a far-reaching liberal approach!

Needless to say, sexual identification, as well as sexual orientation, is a very intimate process, albeit influenced by social life and social relations. The international instruments, including the CRC, recognise that children should primarily consult their parents or close members of the family, rather than obtaining information about sex from the applicants' posters in the street.

Indeed, the impugned provision of the Law pursues the primary aim of protecting the values of a traditional family. This provision could be interpreted as supporting the family and maternity. It could not be interpreted as preventing adults from engaging in same-sex relations, as it could be in a discrimination case. Fortunately, the Court has already supported the State's duty to protect the right to family and maternity of vulnerable female prisoners in a life-sentence case (see Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, ECHR 2017). The present case also raises issues relating to positive discrimination as a result of asserting a preference for a traditional family. The positive discrimination sought not only to support a group of persons, but also to protect the traditional values of Russian society without interference with the rights of the LGBT community. The conclusion reached by the Court in the present case, unfortunately, is the opposite of its own previous position.

The Court quotes the following position of the Venice Commission (paragraph 48 of its Opinion): ‘…measures which seek to remove from the public domain promotion of other sexual identities except heterosexual, affect the basic tenets of a democratic society, characterised by pluralism, tolerance and broadmindedness, as well as the fair and proper treatment of minorities’ (again, in my view, a notion of discrimination is involved in the examination of Article 10). The Venice Commission, however, does not take seriously the point that ‘heterosexuality’ could create any values (like maternity) which deserve to be prioritised. I am not convinced that the Council of Europe is willing to support the dialogue with the Russian Constitutional Court, which explained the purpose of the Law in the judgment of 23 September 2014: ‘In so far as one of the roles of the family is the birth and upbringing of children, an understanding of marriage as the union of a man and a woman underlies the legislative approach to resolving demographic and social issues in the area of family relations in the Russian Federation’. In the context of the upbringing and development of children in Russia in accordance with the perception of family by their parents, I think that the Council of Europe should respect ‘family relationships as these are traditionally understood in Russia and expressed in the Constitution of the Russian Federation’. The Russian Constitutional Court also focuses on the values of maternity in the cultural and historical perspective and other relevant issues, but they were not used in the present case. I regret that the above judgment was not reproduced in full.

The CRC also stresses the importance of the family as the fundamental group of society and the natural environment for the growth and well-being of children, and that the family should be afforded the necessary protection. That constitutes a legitimate aim, again, contrary to the Court's conclusion in the present case.

The Court has concluded that the minors who witnessed the applicants' campaign were exposed to the ideas of diversity, equality and tolerance, and that the adoption of these views could only be conducive to social cohesion. I am not sure that that was clear enough for the children, or that they could come to such a conclusion, which requires knowledge and understanding of those high principles. The various research confirms that younger children do have difficulty in maintaining a consistent view on universal rights, expressing uncertainty about prohibiting freedom of speech3.. It should be added that the above values have not been explicitly expressed by the applicants.

Obviously, education in the context of sexual relations (a very intimate and sensitive subject) should be dispensed with great caution. Therefore, it is difficult to agree that a slogan raised on the street can satisfy any educational purposes.

Personally, I agree that children should be educated in an environment free from violence based on different sexual orientation; however, the applicants did not provide the Court or national authorities with any evidence that there was such a case (namely, a case of violence among children) in the particular school or library where the applicants held their demonstrations. Also, no such application was lodged with the Court.

Moreover, the CRC provides that the education of the child should be directed at the development of the child's personality, talents and mental and physical abilities, to their fullest potential. Also it should be directed at the development of respect for the child's parents, their values and for the national values of the country in which the child is living (Article 28). As regards sexuality education, all the respective manuals warn that it is normal for all children to express a curiosity about sex. They also warn that the parents should speak to the child's teacher to determine what is appropriate for the child's age and maturity level. Since each person is unique with different abilities and learning styles, it is required to determine (and the parents are best positioned for that) when and how much information the child needs in order to explore his or her sexuality fully and safely. One of the most reliable sources is the UNICEF's ‘International Technical Guidance on Sexuality Education’.

Sexuality education also deals with sexual abuse of children. The ‘Guidance’ indicates that currently far too few young people are receiving adequate preparation, thus leaving them vulnerable to coercion, abuse, exploitation and sexually transmitted infections, including HIV (the latter was exactly the point raised by the Government and rejected by the Court). The ‘Guidance’ also provides a lot of sociological data regarding exploitation of sexual maturity at an earlier age, without making a responsible choice. This is useful for understanding the gap between sexual maturity and mental immaturity which is normally attributable to the children after the age of twelve.

Therefore, it is commonly recognised that sex education is a very sensitive area where the dissemination of information should be carried out very carefully.

The Court, in the present case, did not seriously take into account the fact that the private life of children is more important than the freedom of expression of homosexuals.

It appears from the circumstances of the case that all the demonstrations were held in order to promote non-traditional sexual relations (which is not itself an issue of public interest); they were not held to express opinions on issues of public interest such as same-sex marriage or adoption. Two of the demonstrations were held in front of the school, without consultation with the teachers, and without targeting a certain category of pupils of a certain advanced age, and there was no other evidence to conclude that the purpose of the demonstration was to involve children in a discussion of social problems like tolerance. The applicants themselves acknowledged that the choice of venues and the content of the banners had been intentional to protest against the legislative acts in question (see paragraph 52 of the judgment).

The applicants would like to demonstrate that homosexuality is normal and natural. However, homosexuality is not persecuted either by the State authorities or by the children of the school or their parents, and society in Russia in general is tolerant of this phenomenon. Many homosexuals are public figures who are accomplished in the arts, business and State governance. In the event of violence against homosexuals, any such case could be brought before the Court if the national authorities have failed to fulfil their positive obligations. However, there was no reason based on factual circumstances to hold demonstrations in those particular places.

The Court has concluded that the promotion of same-sex relations is not detrimental for public morals, health or rights of others, even if the opinion was expressed in direct conflict with the right to private life. The Court was satisfied that in staging their demonstrations the applicants did not seek to interact with minors, nor intrude into their private space (see paragraph 80 of the judgment). I believe that this view is completely contrary to the Court's established case-law, because the existence of a conflict between freedom of expression and private life is not dependent on any intrusion into a private place in its literal sense, but in the present case it constitutes an intrusion into a perception of a lifestyle!

The present case is quite complex. It presents not merely a conflict between the right to freedom of expression and the right to private and family life; there is also a conflict between different forms of self-identification of a person. This issue is vital for both conflicting parties, and they will never come to an agreement. Until now, the Council of Europe has favoured unrestricted public recognition of non-traditional sexual relations, even in sensitive areas such as the vulnerability of a particular group of persons (children) owing to their immaturity, the religious and philosophical convictions of their parents (on how the family should be organised), the national traditions and values including maternity, the national demographic policy and the sensitivity of sexuality education.

67667/09 — Bayev v. Russia

44092/12 — Kiselev v. Russia

56717/12 — Alekseyev v. Russia