CASE OF BAYEV AND OTHERS v. RUSSIA
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Violation of Article 14+10 - Prohibition of discrimination (Article 14 - Discrimination) (Article 10 - Freedom of expression-{General};Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
6. 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. 7. 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” (публичные действия, направленные на пропаганду гомосексуализма среди несовершеннолетних). 8. On 3 April 2006 the Ryazan Regional Duma adopted the Law on Protection of the Morality of Children in the Ryazan Oblast, which prohibited public activities aimed at the promotion of homosexuality among minors. 9. On 4 December 2008 the Ryazan Regional Duma adopted the Law on Administrative Offences, which introduced administrative liability for public activities aimed at the promotion of homosexuality among minors. 10. On 30 March 2009 the first applicant held a static demonstration (“picket”, пикетирование) in front of a secondary school in Ryazan, holding two banners which stated “Homosexuality is normal” and “I am proud of my homosexuality”. He was charged with an administrative offence for doing so. 11. On 6 April 2009 the Justice of the Peace of Circuit no. 18 of the Oktyabrskiy District of Ryazan found the first applicant guilty of a breach of section 3.10 of the Ryazan Law on Administrative Offences. He was ordered to pay a fine of 1,500 Russian roubles (RUB, equivalent to about 34 euros (EUR)). On 14 May 2009 the Oktyabrskiy District Court dismissed the first applicant’s appeal. 12. On 30 September 2011 the Arkhangelsk Regional Assembly of Deputies passed amendments to the Law on Separate Measures for the Protection of the Morality and Health of Children in the Arkhangelsk Oblast. The amended law prohibited public activities aimed at the promotion of homosexuality among minors. 13. On 21 November 2011 the Arkhangelsk Regional Assembly of Deputies passed amendments to the Regional Law on Administrative Offences. The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality among minors. 14. On 11 January 2012 the second and the third applicants held a static demonstration in front of the children’s library in Arkhangelsk. The second applicant was holding a banner stating “Russia has the world’s highest rate of teenage suicide. This number includes a large proportion of homosexuals. They take this step because of the lack of information about their nature. Deputies are child-killers. Homosexuality is good!” The third applicant was holding a banner stating “Children have the right to know. Great people are also sometimes gay; gay people also become great. Homosexuality is natural and normal”; it went on to list the names of famous people who had contributed to Russia’s cultural heritage and were believed to be gay. Both applicants were arrested and escorted to the police station, where administrative offence reports were drawn up. 15. On 3 February 2012 the Justice of the Peace of Circuit no. 6 of the Oktyabrskiy District of Arkhangelsk found the second and the third applicants guilty of a breach of section 2.13 § 1 of the Arkhangelsk Law on Administrative Offences. The second applicant was ordered to pay a fine of RUB 1,800 (about EUR 45), and the third applicant was fined RUB 2,000 (about EUR 50). On 22 March 2012 the Oktyabrskiy District Court of Arkhangelsk dismissed both applicants’ appeals. 16. On 7 March 2012 the St Petersburg Legislative Assembly passed amendments to the Law on Administrative Offences in St Petersburg. The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality, bisexuality and/or transgenderism among minors; the same law introduced administrative liability for promotion of paedophilia. 17. On 12 April 2012 the third applicant held a demonstration in front of the St Petersburg City Administration, holding up a banner with a popular quote from a famous Soviet-era actress Faina Ranevskaya: “Homosexuality is not a perversion. Field hockey and ice ballet are.” He was arrested by the police and escorted to the police station, where an administrative offence report was drawn up. 18. On 5 May 2012 the Justice of the Peace of Circuit no. 208 of St Petersburg found the third applicant guilty of a breach of section 7.1 of the Law on Administrative Offences in St Petersburg. He had to pay a fine of RUB 5,000 (about EUR 130). On 6 June 2012 the Smolninskiy District Court of St Petersburg dismissed the applicant’s appeal. 19. On an unspecified date the first and the third applicants brought proceedings before the Constitutional Court of the Russian Federation. They challenged the compatibility of section 4 of the Law on Protection of the Morality and Health of Children in the Ryazan Oblast with the provisions of the Constitution, in particular with the principle of equal treatment and the freedom of expression enshrined in Articles 19 and 29 of the Constitution, and also the provisions of Article 55 § 3, setting out the conditions under which the constitutionally guaranteed rights and freedoms may be restricted. 20. On 19 January 2010 the Constitutional Court declared the complaint inadmissible, for the following reasons: “Section 14 § 1 of the Federal Law clearly sets out the responsibility of the State bodies of the Russian Federation to take measures for the protection of children from information, propaganda and activism which is harmful to their health and moral and spiritual development. ... The laws of the Ryazan Oblast “On protection of the morality of children in the Ryazan Oblast” and “On administrative offences” do not strengthen any measures which prohibit homosexuality or provide for its official censure; they do not contain signs of discrimination, and there is no indication in their intent of superfluous actions by the State bodies. It follows that the provisions being challenged by the appellants cannot be regarded as disproportionately restrictive of freedom of speech.” 21. On unspecified date the third applicant brought proceedings before the Constitutional Court of the Russian Federation. He challenged the compatibility of section 7 of the Law on Administrative Offences in St Petersburg with the Constitution. 22. On 24 October 2013 the Constitutional Court declared the complaint inadmissible, for the following reasons: “... It follows that the given prohibition, determined by the fact that such promotion is capable of harming minors by virtue of the age-specific features of their intellectual and psychological development, cannot be considered as permitting a limitation on the rights and freedoms of citizens exclusively on the basis of sexual orientation. ... However, this does not rule out a need to define – on the basis of a balancing exercise with regard to the competing constitutional values – the limits of the given individuals’ effective practice of their rights and freedoms, in order not to infringe the rights and freedoms of others. ... ’s actions with regard to the targeted and unchecked dissemination of generally accessible information 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, does not come within the competence of the Constitutional Court of the Russian Federation; nor does verification of the lawfulness and validity of the judicial decisions issued in the appellant’s case.” 23. On 29 June 2013 the Code of Administrative Offences of the Russian Federation was amended, introducing in Article 6.21 administrative liability for the promotion of non-traditional sexual relations among minors. 24. On an unspecified date the third applicant and two other persons brought proceedings before the Constitutional Court of the Russian Federation. They challenged the compatibility of Article 6.21 of the Code of Administrative Offences with the provisions of the Constitution. 25. On 23 September 2014 the Constitutional Court examined the complaint on the merits and dismissed it, for the following reasons: “... Citizens’ enjoyment of the right to disseminate information concerning the question of an individual’s sexual self-determination ought not to infringe the rights and freedoms of others; in regulating of this right by means of legislation, it is necessary to ensure that a balance is struck between the values protected by the Constitution. Consequently, bearing in mind the sensitive nature of such questions, since they belong to the sphere of individual autonomy, and without encroaching on its very essence, the State is entitled to introduce, on the basis of the above-mentioned requirements of the Constitution of the Russian Federation, specific restrictions on activities linked with the dissemination of such information if it becomes aggressive [and] importuning in nature and is capable of causing harm to the rights and legal interests of others, primarily minors, and is offensive in form. ... In so far as one of the roles of the family is [to provide for] 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... Regulation of freedom of speech and the freedom to disseminate information does not presuppose the creation of conditions which would facilitate the formation of other interpretations of the family as an institution, and the associated social and legal institutions, which would differ from the generally accepted interpretations nor society’s approval of them as being equivalent in value... These aims also determine the need to protect the child from the influence of information that is capable of causing harm to his or her health or development, particularly information that is combined with an aggressive imposition of specific models of sexual conduct, giving rise to distorted representations of the socially accepted models of family relations corresponding to the moral values that are generally accepted in Russian society, as these are expressed in the Constitution and legislation. ... In order to ensure the child’s healthy development, States are required, in particular, to protect the child from all forms of sexual exploitation and sexual perversion. ... The aim pursued by the federal legislature in establishing the given norm was to protect children from the impact of information that could lead them into non-traditional sexual relations, a predilection for which would prevent them from building family relationships as these are traditionally understood in Russia and expressed in the Constitution of the Russian Federation. The Constitutional Court of the Russian Federation acknowledges that the possible impact on the child’s future life of the information in question, even when delivered in a persistent manner, has not been proven beyond doubt. Nonetheless, in assessing the necessity of introducing one or another restriction, the federal legislature is entitled to use criteria that are based on the presumption that there exists a threat to the child’s interests, especially as the restrictions introduced by it concern only the tendency of the information in question to target persons of a given age group, and cannot therefore be regarded as excluding the possibility of exercising one’s constitutional right to freedom of information in this area. ... The prohibition on public activities in relation to minors is intended to prevent their attention being increasingly focused on issues concerning sexual relations, which are capable, in unfavourable circumstances, of deforming significantly the child’s understanding of such constitutional values as the family, motherhood, fatherhood and childhood, and adversely affecting not only his or her psychological state and development, but also his or her social adaptation. The fact that this ban does not extend to situations concerning the promotion of immoral conduct in the context of traditional sexual relationships, which may also require State regulation, including through [the existence of] administrative offences, is not grounds for finding that the given norm is incompatible with the Constitution of the Russian Federation from the perspective of infringing the principles of equality as applied to the protection of Constitutional values, which ensure the uninterrupted replacement of generations ... The imposition on minors of a set of social values which differ from those that are generally accepted in Russian society, and which are not shared by and indeed frequently perceived as unacceptable by parents – who bear primary responsibility for their children’s development and upbringing and are required to provide for their health and their physical, psychological, spiritual and moral development – ... may result in the child’s social estrangement and prevent his or her development within the family, especially if one considers that equality of rights as set out in the Constitution, which also presupposes equality of rights irrespective of sexual orientation, does not yet guarantee that persons with a different sexual orientation are actually regarded in equal terms by public opinion; this situation may entail objective difficulties when trying to avoid negative attitudes from individual members of society towards those persons on a day-to-day level. This is also true for instances where the very information that is banned from dissemination to minors may be intended, from the disseminator’s perspective, to overcome such negative attitudes towards persons with a different sexual orientation... The prohibition on the promotion of non-traditional sexual relationships does not in itself exclude the information in question from being presented in a neutral (educational, artistic, historical) context. Such transmission of information, if it is devoid of indications of promotion, that is, if it is not aimed at creating preferences linked to the choice of non-traditional forms of sexual identity and ensures an individualised approach, taking into account the specific features of the psychological and physiological development of children in a given age group and the nature of the specific issue being clarified, may be conducted with the help of experts such as teachers, doctors or psychologists. ... does not signify a negative appraisal by the State of non-traditional sexual relationships as such, and is not intended to belittle the honour and dignity of citizens who are involved in such relationships... ... cannot be regarded as containing official censure for non-traditional sexual relationships, in particular homosexuality, far less their prohibition... ... the person [disseminating information] must understand that what appears to him or her as the straightforward provision of information may, in a specific situation, resemble activism (promotion), if it is shown that the aim was to disseminate (or especially to impose) information with the above-mentioned content. At the same time, only intentional commission by a person of the corresponding public activities, directly targeted at promoting non-traditional sexual relations among minors, or intentional commission of these actions by a person who was fully aware that there could be minors among those receiving the information, is punishable...”