European Court Rules Against Russia in Gay Rights Case

A unanimous 8-member chamber of the European Court of Human Rights ruled on October 21 that the Russian government violated the European Convention on Human Rights when the Moscow city government denied permission for four consecutive years for the holding of a gay rights parade and demonstration in that city. Ruling on three applications to the court filed by Nicolas Alekseyev, the leader of the Russian gay rights group in Moscow, the court found violations of Articles 11, 13 and 14 of the Convention. Alekseyev v. Russia, Applications Nos. 4916/07, 25924/08 and 14599/09.

There were recent reports from Russia that government agents had briefly kidnapped Mr. Alekseyev to try to persuade him to withdraw these applications to the Court, but he refused and was eventually released. Russian President Medvedev recently removed Moscow Mayor Luzhkov from office and appointed a replacement, whose views on the holding of gay rights parades have yet to be tested. There are also reports that recently some Russian courts, perhaps anticipating the European Court’s ruling, have held that Alekseyev’s organization is entitled to hold such events in the future.

Much of the court’s opinion is devoted to a detailed chronological account of the events at issue, concerning attempts by Mr. Alekseyev’s organization to stage demonstrations in support of gay rights on May 27, 2006, January 29, 2007, February 14, 2008, and March 10, 2009. In each case, the city refused to allow the event. Responding to the first such request, in 2006, a spokesperson for Mayor Luzhkov indicated that the mayor “has firmly declared: the government of the capital city will not allow a gay parade to be held in any form, whether openly or disguised [as a human rights demonstration], and any attempt to hold any unauthorised action will be severely repressed.” Later news reports quoted the mayor as saying he did not want “to stir up society, which is ill-disposed to such occurrences of life” and that he considered homosexuality to be “unnatural” although he “tried to treat everything that happens in human society with tolerance.”

In rejecting requests for permission to hold the events, the mayor cited opposition to the events from religious authorities, and local courts repeatedly rejected attempts by the organizers to have the mayor’s actions overruled. Defending its actions before the European court, the Russian government argued that the denial of authorization for a gay pride parade was justified on public safety and public morality grounds.

The court took up the allegations of violations of particular articles of the Convention seriatum.

Article 11 provides for freedom of peaceful assembly and freedom of association, and mandates that no “restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society.” The article allows the state to restrict assembly and association rights when necessary for national security, public safety, the prevention of disorder or crime, the protection of health or morals, or “for the protection of the rights and freedoms of others.”

The Russian government argued that these exceptions applied, stressing that the Mayor had received objections to the holding of gay pride events from the leaders of the religious community. “In the Government’s view,” wrote the court, summarizing the argument, “in Moscow the public was not yet ready to accept the holding of gay parades in the city, unlike in Western countries, where such celebrations were regular occurrences. It was thus the authorities’ duty to demonstrate sensitivity to the existing public resentment of any overt manifestation of homosexuality.” The government noted that one of the religious authorities had threatened that there would be mass protests, and that one Muslim religious leader had state that “homosexuals must be stoned to death.” The government also relied on a statement attributed to a European Human Rights Commissioner in a news report that the prohibition of gay rights parades in Moscow was supported by the Council of Europe, a news report that has been repudiated by the Commissioner who was allegedly quoted.

Countering the government’s argument, Mr. Alekseyev pointed out the peaceful nature of the contemplated event, and noted that Russian statutes concerning such events did not authorize banning them, but did provide that the government might suggest alternative venues for proposed activities to avoid public disorder. In this case, however, the government was imposing a complete ban, and was unwilling to negotiate about venue. He argued that the government’s emphasis on protecting public morals ran counter to the protection of diversity and pluralism required by the law, and pointed out further that his organization was not proposing an event that would involve any sexually explicit or provocative behavior or public nudity.

The court found that there was “no doubt that there has been an interference with the exercise of the applicant’s freedom of peaceful assembly guaranteed by Article 11, Section 1 of the Convention. . . [I]rrespective of the aim and the domestic lawfulness of the ban, it fell short of being necessary in a democratic society.” The court repeatedly noted a prior decision in a similar case arising in Poland, where it had found the government’s refusal to allow a gay pride parade as violating Article 11.

Quoting from the Polish case, the court said: “Referring to the hallmarks of a ‘democratic society,’ the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.”

Responding to the government’s public safety argument, the court wrote that it had previously “stressed in this connection that freedom of assembly as enshrined in Article 11 of the Convention protects a demonstration that may annoy or cause offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents. It is thus the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully. The Court cannot accept the Government’s argument that these petitions [from religious leaders opposing the gay pride events] should be viewed as a general indication that the Pride March and the picketing had the potential to cause public disorder.” Indeed, the court indicated that the religious protests were more appropriately addressed in response to the government’s second argument in support of its actions: protection of morals. “In the present case,” said the court, “the Court cannot accept the Government’s assertion that the threat was so great as to require such a drastic measure as banning the event altogether, let alone doing so repeatedly over a period of three years. Furthermore, it appears from the public statements made by the Mayor of Moscow, as well as from the Government’s observations, that if security risks played any role in the authorities’ decision to impose the ban, they were in any event secondary to considerations of public morals.”

Turning to the public morals justification, the court noted the Government’s argument that “such events should be banned as a matter of principle, because propaganda promoting homosexuality was incompatible with religious doctrines and the moral values of the majority, and could be harmful if seen by children or vulnerable adults. The Court observes, however, that these reasons do not constitute grounds under domestic law for banning or otherwise restricting a public event,” as a result of which these arguments were not even made in the local court proceedings that Alekseyev had initiated. “The Court is not convinced that the Government may at this stage substitute one Convention-protected legitimate aim for another one which never formed part of the domestic balancing exercise. Moreover,” the court continued, “it considers that in any event the ban was disproportionate to either of the two alleged aims.”

Recurring to its holding on the earlier point, the court asserted 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. Were this so, a minority group’s right to freedom of religion, expression and assembly would become merely theoretical rather than practical and effective as required by the Convention.” In light of the articulated purpose of the event, “to promote respect for human rights and freedoms and to call for tolerance towards sexual minorities,” the court found the government’s concerns about public morals to be overstated.

The court decisively rejected the government’s argument that in light of cultural factors it should be accorded a wide “margin of appreciation” for its decision about dealing with gay rights issues in Russia. “There is ample case-law reflecting a long-standing European consensus” on a wide array of gay rights issues, wrote the court, listing a long string of decisions dating back to 1988. “There is no ambiguity about the other member States’ recognition of the right of individuals to openly identify themselves as gay, lesbian or any other sexual minority, and to promote their rights and freedoms, in particular by exercising their freedom of peaceful assembly.”

In this case, the court faulted the government’s failure to engage in a realistic assessment of the public safety issues, as well as it apparent decision-making based solely on “public opposition to the event” and the officials’ “own view of morals.”

Article 13 of the Convention requires that contracting states afford an “effective remedy” for human rights violations. In this case, the government argued that Alekseyev could submit his grievances to the local courts, but he argued that this did not provide an effective remedy in the circumstances, inasmuch as the city’s rules provided a narrow time window during which parade applications could be submitted shortly before the event, that the city would announce its denial of the permits very shortly before the event, and that local court rulings rejecting Alekseyev’s challenges to the city’s actions were announced so shortly before the event as to provide no time to appeal. As the dates for the proposed events were chosen for symbolic reasons and carrying out these events required planning, the available judicial mechanism for seeking relief was inadequate from the point of view of time, and the court so found.

Finally, Article 14 is the Convention’s anti-discrimination provision. The court rejected the government’s argument that Article 14 did not apply because the ban was not discriminatory on a ground specified in the Convention. “The court reiterates that sexual orientation is a concept covered by Article 14,” wrote the court. “Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow, and in such situations the principle of proportionality does not merely require the measure chosen to be suitable in general for realising the aim sought; it must also be shown that it was necessary in the circumstances.” Translating into U.S. constitutional terms, the court was saying, in effect, that sexual orientation is a suspect classification under the Convention, meaning that governmental actions that discriminate based on sexual orientation are subject to something like strict scrutiny.

“It has been established above that the main reason for the ban imposed on the events organized by the applicant was the authorities’ disapproval of demonstrations which they considered to promote homosexuality,” the court concluded. “In particular, the Court cannot disregard the strong personal opinions publicly expressed by the mayor of Moscow and the undeniable link between these statements and the ban. In the light of these findings, the Court also considered it established that the applicant suffered discrimination on the grounds of his sexual orientation and that of other participants in the proposed events. It further considers that the Government did not provide any justification showing that the impugned distinction was compatible with the standards of the Convention.”

The court awarded damages to Alekseyev of 12,000 euros, which translates to somewhere between $16,000 and $17,000, and awarded costs and expenses of the litigation in the amount of 17,510 euros, or about $24,000. Interest will accumulate on these amounts at the marginal lending rate of the European Central Bank plus three percent until the damages and expenses are paid. The judgment announced on October 21 is subject to editorial revision and possible appeal to a larger tribunal.