Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The European Court of Human Rights held that Russia had violated the right to freedom of expression and the prohibition against discrimination when it convicted three applicants who were charged with administrative offenses for their nonviolent demonstrations held in front of a school and library to counter the stigma associated with homosexuality. The Court rejected the government’s claims that the relevant legislative provisions were justified to protect the morals, health and the rights of others, specifically minors. It reasoned that states have an obligation to take into account developments in society such as the inclusion of same-sex relationships within the concept of “family-life”; that health would be better protected with the dissemination of education on single-sex relationships: and that by adopting the laws at issue “the authorities reinforce[d] stigma and prejudice and encourage[d] homophobia, which is incompatible with the notions of equality, pluralism and tolerance in a democratic society”.
In 2006 and 2008, the Rayazan Regional Duma adopted laws entitled the “Law on Protection of the Morality of Children in the Rayzan Oblast” and the “Law on Administrative Offenses,” which prohibited activities aimed at promoting homosexuality and imposed administrative liability, respectively. The applicants were charged under these laws. The first applicant held banners in front of a school stating “Homosexuality is normal” and “I am proud of my homosexuality” [para. 10]. The second and third applicants held a demonstration outside of a library with signs 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!” and “Children have the right to know. Great people are also sometimes gay; gay people also become great. Homosexuality is natural and normal” [para. 14]. All three applicants were charged with administrative offenses and ordered to pay fines. The applicants appealed and the appeals were dismissed by the domestic courts. The applicants then appealed to the European Court of Human Rights alleging that their rights under Articles 10 and 14 of the Convention had been violated.
The Court ruled there had been a violation of Article 10 and Article 14 of the Convention.
There was no dispute that the imposition of liability constituted an interference with the applicants’ rights to freedom of expression. However, the government alleged this interference was in accordance with the relevant law and was necessary in a democratic society. Specifically, the government argued that the law was aimed at protecting children and that the applicants, by protesting in areas where children were present “so as to impose a homosexual lifestyle, to plant an attractive and even superior image of same-sex relations in the minds of minors and to corrupt their vision on traditional family values”[para. 46] violated this protection.
The applicants countered that the government had no justification for restricting their right to protest the laws, and their choice of venue was a form of protest. Several third parties made submissions. The Family and Demography Foundation expressed support for “traditional family values” and stressed the dangers of a homosexual lifestyle. Article 19 and Interights expressed support for the right of children to have access to education on reproductive and health information and stated that laws banning so called homosexual propaganda were having a detrimental effect on freedom of expression and the rights of minorities. ILGA-Europe, “Coming Out” and the Russian LGBT network expressed their concern with bullying based on homosexuality and homophobia among the citizens.
The government accepted that there had been an interference with the applicants’ freedom of expression, so it fell to the Court to determine whether that interference was justified. It considered the government’s grounds for each of the three lines of justification it had put forward, namely, the protection of morals, the protection of health and the protection of the rights of others.
The Court rejected the government’s justification on the grounds of the protection of morals, finding that although many Russians did not support same-sex relations, there was a growing consensus among the European community to protect the rights and freedoms of all individuals, regardless of their sexual orientation. Further, the Court found that by protecting the rights of sexual minorities, the government was not disrupting traditional family values because it is the government’s responsibility to take into account the changing landscape of rights for sexual minorities. It added that, in fact, many minorities upheld traditional family institutions like marriage, parenthood, and adoption. In support of its claim that the interference was justified to protect health, the government had argued that the promotion of same-sex relationships posed a threat to public health. The Court found quite the opposite; it said that disseminating information about same-sex relations actually educated the young about the potential risks involved and how to protect themselves against it. Finally, the Court looked to whether the interference was justified on the grounds that it protected the rights of others. Specifically, the government argued that the law was based on a need to protect minors from positive images of homosexuality as this may encourage them to adopt a homosexual lifestyle, which would be detrimental to their health and development. However the Court noted that the laws were vague and broad in scope, for example, they did not specify what was meant by “promoting” a homosexual lifestyle and the restrictions on “promotion” were not limited to specific situations or places, such as those where children might be targeted. In any event, the Court said that the government’s argument that protection was needed because of the risk of exploitation and corruption of the vulnerable was already covered in laws that prohibited dissemination of pornography to minors, and that those provisions were applicable regardless of the sexual orientation of those involved.
Finally, the Court emphasized “the Convention does not guarantee the right not to be confronted with opinions that are opposed to one’s own convictions” [para. 81]. The Court found the applicants had not delivered a message that was aggressive or sexually explicit, or that advocated for sexual behavior or prevented parents from educating their children in their own beliefs. Conversely, the Court found the applicants’ messages promoted important ideas such as tolerance and the promotion of diversity.
In these circumstances, the Court found that the legal provisions did not serve to advance any legitimate aim and the applicants’ Article 10 rights had been violated. It also found a violation of the applicants’ Article 14 rights because the legislation in question involved a predisposed bias toward the heterosexual majority against the homosexual minority and the government had not offered any convincing and weighty reasons justifying the difference in treatment. The Court assessed fines and costs against the government.
Justice Dedov dissented from the decision, arguing that the majority did not engage in the proper balancing test between the privacy rights of the children and their parents and the applicants rights’ to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by ruling that a state cannot suppress ideas and opinions with which it does not agree by adopting and implementing laws that use broad and vague terminology. The decision also forces Russia to follow the emerging European trend to recognize and value individual rights, regardless of sexual orientation.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.
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