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The Case of Elena Klimova

On Appeal Contracts Expression

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    August 3, 2015
  • Outcome
    Monetary Damages / Fines
  • Case Number
    No 33-12446/2015
  • Region & Country
    Russian Federation, Europe and Central Asia
  • Judicial Body
    First Instance Court
  • Type of Law
    Administrative Law
  • Themes
    Content Regulation / Censorship
  • Tags
    LGBTI

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Case Analysis

Case Summary and Outcome

Deti-404 (Children-404) is an online forum created by Elena Klimova. This is a platform for LGBTI teens to share their problems and offer support to each other. The government alleged that the website contained propaganda of non-traditional sexual relationships to minors.

The Court agreed and ruled that Elena Klimova violated the Russian Administrative Code, art. 6.21, which  prohibits propaganda of non-traditional sexual relationships to minors. The Court imposed a fine of RUB 50,000 on Elena Klimova. The appellate court upheld the decision.

Information was extracted from an official court decision that Elena Klimova requested GFoE not share publicly due to private information contained with the decision. Some of the information in this report was derived from secondary sources.


Facts

According to reports, Elena Klimova created an online forum, Deti-404, where LGBTI teens could discuss their lives and seek help with issues of harassment and abuse.

On October 8, 2014, Roskomnadzor, Russian Government’s communication oversight body, determined that Deti-404 was disseminating information that contained propaganda of non-traditional sexual relationships. On November 18, 2014, Roskomnadzor drafted a complaint alleging violation of administrative law against Elena Klimova, the Deti-404’s founder and administrator. Roskomnadzor allegation was based on five published letters, one video, and comments to them, all published on the website.

The video was of a homosexual man who explained that he was proud of it and that it made him a more confident person. Letter one stated that “Sometimes I am proud to be gay, sometimes I think I am bi, maybe I had a psychological issue during my childhood, and that’s the way I am now…I have something to be proud of, I have a boyfriend…LGBT is pride not in sexual orientation, but in that despite discrimination, arrests, and derogation, the LGBT community stands in solidarity, having defended its historic right to human dignity.”

The government argued that the video and letter one could potentially cause children to think that being a homosexual means being proud and confident, and superior to heterosexuals. Deti-404 argued that the letter simply explained the meaning of LGBT pride and did not advocate for the superiority of one orientation over the other.

Another allegedly illicit content was contained in comments to letter two that stated: “Yeah… you have quite the parents! Wipe away those tears, hear? You have a great future, your life has just begun and soon the tests will end. A new life will soon begin for you, new experiences, new meetings and many more new things!… Forget about your mother and sister and start thinking about your own life.”

The government complaint alleged that this commentary openly criticized the teenager’s mother judgement of the teenager’s homosexuality, and called on the teenager to ignore his mother. Deti-404 argued that the letter was from a teenager who was physically and psychologically abused by his mother, the comments were a response to his plea for help, and that the commentary might seem aggressive, but it is a reaction to a difficult situation.

Letter three was from a woman describing her feelings for another woman, their first date, and the experience of her proposing to be together. The government argued that the letter created a positive outlook on homosexual relationships, equated them to heterosexual relationships, and possibly, portrayed them as better than heterosexual relationships. Deti-404 argued that the letter was a personal description of a relationship that contained no advocacy to do the same.

Letter four titled “The phrase is not a choice, we are who we are” was from a man who immigrated to the United States. The commentary stated, “Find happiness and new friends. I am certain that eventually things will change here for the better. Thus the future is with all of us, individually. In the USA there is equality of the law, but it did not come out of nowhere, there was a fight for it.”

Another comment to letter four stated that “The title sounds as a justification. As if, I am not guilty, it is nature that made me this way. There is no need to justify anything. Choice or no choice, the important thing is that it is your private life, and all those who want you to change, just brush them off. If I am accused of choosing to be gay, I want to tell them, ‘Yes, I made a choice because it is my right and my life’ (even if I did not choose this, but was born this way). Let them all go to hell, those who criticize me for my audacity to be different from the majority.”

The government argued that the first comment to letter four aimed to create a false belief among minors about homosexuality’s superiority and exceptionalism. In reference to the second comment, the government argued that it suggested that homosexuality was equal in social importance to heterosexuality. Deti-404 argued that the comments were simply well-wishes for a better life in a new country.

In letter 5, titled “I hate myself, I believe in god and that sodomy is a graver sin than suicide,” the government found issue with the following comments: “If religion makes you unhappy and forces you to feel  damaged, is it not better than to reject it? I understand that it is difficult to reject god, but believe me, being an atheist is much easier” and “If your god punishes you for who you are, are you sure you need such a god?”

The government alleged that these comments called for a minor to reject god for homosexuality, in violation of the right to conscience, and suggested superiority of homosexuality over the minor’s religion. Deti-404 argued that the comments were from a person of age, and that the comment talked about the possibility of rejecting religion, permissible under the Russian Constitution.

The prosecutor argued that the letters and the comments on Deti-404 violated the Administrative Code of the Russian Federation, article 6.21, paragraph 2, which forbids and penalizes propaganda of non-traditional sexual relations.

Elena Klimova rejected all allegations on the basis that:

  1. Letters and comments on Deti-404 did not contain propaganda or language that advocated for the superiority of homosexuality over heterosexuality;
  2. Letters and comments on Deti-404 did not intend to serve as propaganda of homosexuality, but was a means of aid to minors facing difficulties;
  3. Letters and comments on Deti-404 came from LGBT minors who shared personal stories, and were not manufactured;
  4. Elena Klimova lacked the requisite intent for the crime of propaganda of homosexuality; and
  5. Expert testimony of the prosecution’s expert cannot be rejected due to the expert holding a strong bias against homosexuality.

 


Decision Overview

First, a Court of the Dzerzhinskiy judicial region No. 2 in Nizhniy Tagil, clarified that Russia’s Administrative Code, article 6.21, paragraph 2, penalizes propaganda of non-traditional sexual relationships. The Court defined propaganda for the purposes of the law as the dissemination of information through tools of mass information aimed at teenagers to form non-traditional sexual behavior, to attract to non-traditional sexual relationships, to distort the notion of social equality of traditional and non-traditional sexual relationships, and to develop an interest in such relationships.

The evidentiary threshold used by the Court was based on Supreme Court precedent clarifying that although there was no complete proof that providing information on sexual orientation, even in an intrusive manner, had an effect on a child’s future choices, constitutional and international norms dictate that there is a presumption of risk to the interest of the child from information on sexual orientation.

The Court stressed that the anti-gay propaganda law prohibits only public activities that aim to dissemination information that popularizes among or imposes non-traditional on minors. The Court further defined propaganda of non-traditional sexual relationships dissemination of information aimed at:

  • forming non-traditional sexual beliefs; portraying non-traditional sexual practices as appealing or attractive;
  • distorting the social equality of values between traditional and non-traditional sexual relationships;
  • imposing information on non-traditional sexual relationships; or
  • developing an interest in non-traditional sexual relationships.

The Court found the requisite intent in Klimova’s role as the site’s administrator. Specifically, in that as the site administrator she posted the letters on her website and did not delete commentary that included statements of propaganda of non-traditional sexual orientation. The Court considered Klimova’s defense that the website’s intent was to aid troubled minors and not to propagate anything in particular. However, the Court ruled that the defense failed to produce evidence supporting that argument, despite the fact that one of the government’s experts stated that the website intended to help.

On the issue of the letters and comments containing unlawful information, the Court reviewed expert testimony from the government and Elena Klimova. The Court determined that the expert testimony provided by Klimova did not undermine the government’s evidence that her website contained propaganda of non-traditional relationships.

Klimova’s lawyers also moved to dismiss the statement of the primary government expert on the basis of her strong bias and lack of impartiality on the topic of homosexuality, exhibited in her testimony where she concluded that the website attempted to “legalize a sin.” The Court rejected the motion because the expert was accredited and her conclusions in this case were based on a methodological review of eight pieces of evidence.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

The decision strongly contracts speech on LGBTI issues in Russia. The decision suggests that any positive portrayal of LGBTI, even among the LGBTI community, may be considered unlawful if the public and minors are able to access it.

Further, in a statement following the ruling, Roskomnadzor’s press secretary stated that if the forum was private it would not have filed a complaint against it. However, the forum does not advertise and although anyone can view its message boards, one cannot post on them without registering.

Thus, by the Court’s and Roskomnadzor’s logic, the site is propaganda because it exists in public space – the internet. This reasoning may lead to the closure of progressive websites in Russia that are openly supportive or empathize with the LGBTI people.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The case provides a glance on how Russian courts will define propaganda when prosecuting speech under the anti-gay propaganda law. This case suggests that propaganda shall be defined broadly and may include messages of support intended for specific individuals on a public message-board.

Official Case Documents

Reports, Analysis, and News Articles:


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