Current state of Russian law
On 29 July 2013 Federal Law No. 135-FZ, which amended certain laws of the Russian Federation with the view to protect children from information propagating the negation of traditional family values entered into force (“the Amending Law”).
The law provides for so-called “administrative” sanctions in order to ban the dissemination of any information regarding issues relating to “social equality” of diverse sexual orientations or gender identities “amongst minors”. Disgustingly, the Russian government still doesn’t recognize coming out as a big life event. Instead, they choose to oppress members of the LGBT community.
The Amending Law modified the Code of Administrative Offences to make “propaganda of non-traditional sexual relationships among minors expressed in the dissemination of information” with certain aims (as listed in the relevant article) an offence. In the first reading in January 2013, the draft law referred to “propaganda of homosexual relationships” which was later replaced with the phrase “propaganda of non-traditional sexual relationships”. An explanatory note to the Draft Amending Law explained that the law is considered “necessary to protect the younger generation from the effects of homosexual propaganda” which “in Russia took a wide sweep” and “is delivered both through the media and through active social action that promote homosexuality as a behavioural norm”. The penalties take the form of fines on a graded scale according to the identity of the accused and the use of mass media (including the Internet), and range from 4,000 rubles (approximately EUR 100) to 1,000,000 rubles (approx. EUR 25,000) or administrative suspension of activity for up to 90 days (for companies). If the same actions are committed by a foreign national or a stateless person, the fine applies together with administrative expulsion from the Russian Federation or administrative arrest for up to 15 days followed by expulsion from the country.
The federal law passed its final reading in the State Duma on 6 June 2013, with 436 votes in favour and 1 abstention.
If you wish to make your own assessment of the law, we invite you to read the precise wording of the amendments here (our unofficial translation into English). This would allow you to address concerns raised by Russia’s officials recently as to the lack of knowledge of the new laws by those subjecting the recent amendments to “unjust” criticism.
The day when these amendments were passed into law was called by Amnesty International the “dark day” for the freedom of expression in Russia: on the same day, the law criminalising public actions “committed to insult religious feelings of believers” also passed a final reading. Both laws entered into force on 30 June 2013.
The Amending Law was preceded by nine regional laws using similar wording, the first being adopted in 2006 in the Ryazan Region of Russia, and the others following closely one after the other in 2011 and 2012.
Compliance with international legal standards
The Amending Law raises serious concerns as to the existing international legal standards relating to the rights to freedom of expression, freedom of assembly, and prohibition of discrimination enshrined and guaranteed by the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and other regional human rights treaties.
An argument can be made that the provisions of the law fail to satisfy the requirement of foreseeability, which risks arbitrary application and abuse of this law in practice (no explanation is offered to the main terms used in the prohibition, “propaganda” and “among minors”, which makes it too broad a definition to be considered as “law” within the meaning given to it by the ECHR and used in the ICCPR); they may hardly be claimed to pursue any of the legitimate aims enshrined in the ECHR and ICCPR, and do not meet the requirements of the necessity and proportionality tests of the European Court of Human Rights (ECtHR). The difference in treatment in the application of the rights to freedom of expression and assembly amount to discrimination, as no plausible justification is offered for the differential treatment afforded to the dissemination of information regarding heterosexual and non-heterosexual relationships.
As the Venice Commission notes in its detailed research on the matter, these conclusions find support in the jurisprudence of the ECtHR and the Human Rights Committee (HRC), as well as in resolutions and recommendations of the Parliamentary Assembly, the Committee of Ministers, and other bodies of the Council of Europe. Non-governmental organisations, such as Article 19 in its extensive study of international standards with respect to the issue of “homosexual propaganda“, also refer to concurring findings made by the Inter-American Court of Human Rights, the Office of the High Commissioner for Human Rights, UN treaty monitoring bodies, and UN special mandates, as well as in declarations of international and regional political bodies.
In particular, the HRC has previously examined a case initiated against Russia on the basis of earlier adopted regional laws. In the case of Fedotova v. Russia (2012), the HRC has found that the arrest and fining of an LGBT activist amounted to a violation of the right to freedom of expression and non-discrimination under the ICCPR. In this case, the applicant, Irina Fedotova, displayed posters that declared “Homosexuality is normal” and “I am proud of my homosexuality”, which, pursuant to a regional law of the city of Ryazan, was found by domestic authorities to be an administrative offence against public morals defined as “propaganda of homosexuality among minors”.
The ECtHR has consistently held that information and ideas that “offend, shock or disturb the State or any sector of the population” are protected by Article 10 of the ECHR (Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24). Further, in Aleskeyev v. Russia, (nos. 4916/07, 25924/08 and 14599/09, 21 October 2010), the ECtHR also clearly distinguished between obscenity and public display of one’s sexual identity, and found no scientific evidence or sociological data to suggest that “the mere mention of homosexuality or open public debate about sexual minorities’ social status would adversely affect children or vulnerable adults”. This was a case concerning the freedom of assembly of LGBT activists which had taken place seven years before the Amending Law was adopted. Here, the ECtHR emphasised that “it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority.” In this case, the Russian Government raised arguments to the effect that “any promotion of homosexuality was incompatible with the religious doctrines for the majority of the population” and that “allowing the gay parades would be perceived by believers as an intentional insult to their religious feelings”.
Approach taken by other countries with regard to the matter
As the Venice Commission and non-governmental organisations note in their reports, despite international condemnation, prohibition of “homosexual propaganda” similar to Russia’s also exists in Ukraine, Moldova, and Uganda. Attempts to institute prohibitions were undertaken in Hungary and Lithuania, but they have been unsuccessful. According to Article 19, there are also 76 countries in the world which criminalise homosexual acts in their domestic legislations.
Reference to “traditional values” and discussion initiated by Russia at the UN Human Rights Council
The essential dispute in this particular case has been presented by Russia as a dispute between traditional and non-traditional values. Notably, since 2009, Russia has proposed three resolutions at the UN Human Rights Council to promote “human rights and fundamental freedoms through a better understanding of traditional values of humankind”. While the best practices relating to traditional values are currently being gathered and analysed by the UN human rights bodies, non-governmental organisations have expressed their concerns regarding the failure of the proposed resolutions to mention that “traditional values are often abused by States to legitimise discrimination” against the rights of various minorities. This concern comes together with questioning Russia’s motives in proposing these resolutions. “Prohibitions on “homosexual propaganda” are but one of the numerous ways Russia has in recent years severely restricted the space for civil society to engage in critical debate or any form of human rights advocacy”, says Article 19 in its report. “The replication of similar measures across the region adds further weight to concerns regarding the motivation for pursing recognition of “traditional values” at the UNHRC”.
The Venice Commission closely echoes Article 19 in its conclusions: “on the whole, it seems that the aim of these measures is not so much to advance and promote traditional values and attitudes towards family and sexuality but rather to curtail non-traditional ones by punishing their expression and promotion. As such, the measures in question appear to be incompatible with “the underlying values of the ECHR”, in addition to their failure to meet the requirements for restrictions prescribed by Articles 10, 11 and 14 of the Convention.”
So, why?
Homosexuality was decriminalised in Russia on 3 June 1993. In 1999, Russia adopted ICD-10 standards, which meant that homosexuality was removed from the registry of officially recognised diseases.
While reference is often made, including by the Russian government, to the wide public support of prohibition of “homosexual propaganda” and “homophobic” nature of the Russian society, one should not forget the state of freedom of press in Russia. Russia occupies 143rd place of the 179 countries in the Reporters without Borders’ World Press Freedom Index 2013. It should therefore be borne in mind that views of the majority in Russia are influenced by arguably one-sided mass-media. A government which refers to “public opinion” and “conservative ideology” largely formulated and controlled by the same government cannot but be addressed with certain questions in this regard.
Secondly, as Stephen Fry validly noted in his interview with a local parliament deputy who initiated the most recent stream of homophobic laws in Russia, a “ridiculous enemy” is being presented to the public – an image of a person “invading kindergartens” and telling children to “identify themselves” as gay.
In these circumstances, it may be argued that surveys prepared by state-run pollsters in Russia should be assessed critically and, importantly, the blame for homophobia should not be imposed solely on society. State-sponsored homophobia may indeed be a better explanation.
In comparison to other countries outside of Russia, if we look at the ever-growing number of LGBT TV shows and the increasing diversity of representation in mainstream media, the progress is evident. As this article from Lovegasm.co explains, covering taboo subjects regarding sex and sexuality in film and television programs can lead to increased tolerance. There is anyway a lack of information in general about subjects like gay sex. People might be curious about how people in homosexual relationships navigate their sexual desires with the help of anal numbing gel and similar products but remain hesitant to ask. However, as long as the aforementioned restrictions are enforced in Russia, any kind of progress regarding knowledge is extremely limited.
Needless to say, a State’s continuance as a democracy may be validly questioned when it relies so heavily on the “tyranny of the majority” in the development of its domestic policies.
Since the Amending Law offers no explanation as to what “propaganda” actually means but is nonetheless based on the premise that homosexuality is something that corrupts youth and undermines society, it supports a very negative opinion the meaning of same-sex relationships and sexuality in general. It essentially
provokes a very “low” level of public discussion and comments disclosing awful confusion in the minds of people, such as “saying “gays should be respected” is equivalent to pedophilia”, etc.
Rights guaranteeing equality irrespective of sexual identity are a very new area for human rights law. In 1952, Alan Mathison Turing, one of the world’s first computer science geniuses, was prosecuted for homosexual acts in the United Kingdom and accepted treatment with female hormones (chemical castration) as an alternative to prison and died two years later from cyanide poisoning. What would the “continuous change of generations” and “preservation of the people” (as used in the Explanatory Note to the Russian Draft Amending Law) of any country be worth without human thought shaping mankind? Would we effectively be able to get out of caves? Why, instead of safeguarding the integrity of a human being, do certain states still chose to pursue their “national interests” in blatant disregard of human rights, their own national constitutions, international treaties and the experience for which mankind paid in the 20th century millions of human lives?
As Rapporteur of the Committee on Equality and Non-Discrimination, Mr Håkon Haugli noted most recently in response to the events described in this blog post: “If we let it go now, for LGBTs, who will be next?”