Gender Expression, Hate Speech
Chief Prosecutor v. Hazte Oír
Closed Contracts Expression
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The Russian Constitutional Court held that the provisions of Ryazan regional laws, which prohibited “homosexuality propaganda” among minors and imposed administrative liability for it, were permissible. Three Russian LGBTQ activists filed a constitutional complaint after the Ryazan City Administration had rejected their request to organize a Pride Parade event and after two of the activists had been detained and fined for displaying posters with the statements “Homosexuality is normal” and “I am proud of my homosexuality” near a secondary school. The activists argued that the law provisions were discriminatory and infringed the constitutional right to freedom of thought and speech. The Court held that the provisions acted in protection of “the intellectual, moral, and mental safety” of children, as “homosexuality propaganda” could harm children’s “health, moral and spiritual development” and “distort their ideas about the social equivalence of traditional and non-traditional marital relations.” The Court concluded the laws did not disproportionately restrict freedom of speech.
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Nikolay Alekseev, Nikolay Baev, and Irina Fedotova are Russian LGBTQ-rights activists. On March 30, 2009, Fedotova and Baev displayed posters that read “Homosexuality is normal” and “I am proud of my homosexuality” in proximity to a secondary school in Ryazan, a city in the western part of Russia. As Fedotova later stated in her complaint to the UN Human Rights Committee, through that action, they had intended to “promote tolerance towards gay and lesbian individuals in the Russian Federation.” According to RZN.info, Fedotova and Baev were detained by the police during their action. On April 6, 2009, Magistrates’ Court No. 18 of the Oktyabrsky district of Ryazan found the activists guilty of “homosexuality propaganda” under Article 3.10 of the Ryazan Region Law on Administrative Offences (Ryazan Administrative Law), and each was sentenced to a fine of 1.5 thousand rubles (around $45 at the time). Fedotova and Baev appealed, and on May 14, 2009, the Oktyabrsky District Court of Ryazan upheld the Lower Court’s order. As communicated by Fedotova to the UN Human Rights Committee, the Court held, referencing Article 55 of the Constitution of the Russian Federation, that individual rights and freedoms could be restricted “to the extent necessary for the protection of the foundations of the constitutional order, public morals, health, or the rights and lawful interests of other persons, or for ensuring the State defense and national security.”
According to MediaRyazan.ru, on March 30, 2009, Alekseev, Baev, and Fedotova notified the Ryazan City Administration about their intention to organize a city action in support of sexual minorities (an alternative to a Pride Parade). The City Administration refused to approve their request, and Alekseev initiated a lawsuit against the Administration’s decision. On April 23, 2009, the Sovetskiy District Court of Ryazan refused to satisfy Alekseev’s complaint, citing Article. 4 of the Ryazan Regional Law “On Protection of Children’s Morality”(Ryazan Children’s Morality Law) and Article 3.10 of the Ryazan Administrative Law.
On September 1, 2009, the three activists filed a complaint with regard to the provisions of the Ryazan regional laws on “homosexuality propaganda” to the Constitutional Court of Russia. Article 4 of the Ryazan Children’s Morality Law, dated March 22, 2006, addresses “the prevention of public actions aimed at homosexuality propaganda among minors” and states that “public actions aimed at promoting homosexuality (sodomy and lesbianism) are not allowed.” Article 3.10 of the Ryazan Administrative Law imposes administrative fines for “public actions aimed at homosexuality propaganda […] among minors” of up to two thousand rubles for individuals, up to four thousand rubles for officials, and up to twenty thousand rubles for legal entities.
The main issue before the Court was whether the provisions of the Razan regional laws that prohibited “homosexuality propaganda” among minors infringed the Constitution of the Russian Federation.
Alekseev, Baev, and Fedotova challenged the constitutionality of Article 4 of the Ryazan Children’s Morality Law and Article 3.10 of the Ryazan Administrative Law. The activists argued that the laws contradicted various sections of the Constitution: Article 19 (on everyone’s equality before the law; on the state guarantee of equal rights and freedoms “regardless of sex, race, nationality, language, origin, property and official status, place of residence, religion, convictions, membership of public associations, and also of other circumstances;” and on the equality of man and woman in their rights and freedoms); Article 29 (on the guarantee of everyone’s freedom of thought and speech, the prohibition of “propaganda or agitation instigating social, racial, national or religious hatred and strife;” and on everyone’s freedom from being forced to express their views or to deny them; on everyone’s right “to freely look for, receive, transmit, produce and distribute information by any legal way;” and on the prohibition of censorship); and Part 3 of Article 55 (on the possible limitation of one’s rights and freedoms by the federal law “only to such an extent to which it is necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, for […] the security of the state”).
The Court noted that the “rights and freedoms of man and citizen” held the supreme value and had to be recognized, observed, and protected under Article 2 of the Constitution [p. 1]. The Court also cited the constitutional provisions in Part 1 of Article 1 on Russia being “a democratic federal law-bound State” and Article 18 on the direct operation of one’s rights and freedoms, which “determin[ed] the essence, meaning and implementation of laws” and had to be protected by “the administration of justice.” The Court stressed that Par. B of Part 1 of Article 72 of the Constitution was part of “the constitutional human rights mechanism formed by the provisions of the preamble of the Constitution […], as well as its articles 1 (part 1), 2, and 18” and established the joint jurisdiction of the Russian Federation and its subjects in the protection of one’s rights and freedoms [p. 1]. The Court emphasized that the provision acted in a systemic connection to Par. C of Article 71 of the Constitution, which “attributed the regulation and protection of the rights and freedoms of man and citizen to the jurisdiction of the Russian Federation” [p. 2].
The Court found that, as the Constitution conferred the protection of one’s rights and freedoms “simultaneously to the jurisdiction of the Russian Federation and to the joint jurisdiction of the Russian Federation and its subjects”, both the Russian Federation and each of its subjects held the responsibility to establish rights and freedoms of individuals and ensure their implementation within the legal system [p. 2]. Citing its Resolution N4-П dated March 11, 2008, the Court noted that any establishment of the regulation of one’s rights and freedoms by the subjects of the Russian Federation was of “a secondary nature derived from the basic one established by the Constitution of the Russian Federation and federal laws”, according to the principle of legal regulation unity [p. 2]. The Court identified that the unity principle and its provisions were addressed in numerous constitutional provisions: Part 1 of Article 4 on the whole-territory sovereignty of the Russian Federation; Part 1 of Article 15 on the prohibition of laws that contradicted the Constitution; Article 17 on the recognition and guarantee of one’s rights and freedoms according to international norms and the Constitution; Article 18; Par. C of Article 71, Par. B of Part 1 of Article. 72; and Article 76 on the supremacy of the constitutional and federal laws in the matters of joint jurisdiction of the Russian Federation and its subjects.
The Court referenced Par. J of Part 1 of Article 72 of the Constitution and emphasized that administrative and administrative-procedural legislation were under the joint jurisdiction of the Russian Federation and its subjects. The Court noted that the federal legislation authorities “established the matters of the jurisdiction of the Russian Federation in the field of legislation on administrative offenses” [p. 2] in Article 1.3 of the Code of Administrative Offenses of the Russian Federation. Accordingly, the Court held that administrative legislation matters outside of the field determined by the federal administrative law were under the jurisdiction of the subjects of the Russian Federation. The Court stressed that the laws of the federal subjects were not to contradict the federal laws under Article 72 and Article 76 of the Constitution. The Court concluded that the establishment in itself of a law concerning administrative liability by a federal subject “could not be considered as violating the constitutional rights of the citizens” [p. 2].
The Court referred to the Preamble of the Constitution, stressing that the Constitution was adopted by “the multinational people of the Russian Federation on the basis of responsibility for their Fatherland before the present and future generations” [p. 2]. The Court emphasized that motherhood, childhood, and family remained under the special protection of the state, according to Part 1 of Article 38 of the Constitution. The Court also referred to Par. G of Part 1 of Article 72, which attributed the protection of childhood to the joint jurisdiction of the Russian Federation and its federal subjects. The Court determined that family, motherhood, and childhood required the state’s special protection, as, “in their traditional understanding taken from the ancestors”, they “represented the values that ensured the continuous change of generations and acted as a condition for the preservation and development of the multinational people of the Russian Federation” [p. 2].
Referring to Par. 1 of Article 4 of Federal Law N124-FZ “On Basic Guarantees of the Rights of the Child in the Russian Federation” dated July 24, 1998, the Court stressed that the underlying logic of the federal legislator in regulating relations in connection to the rights and interests of children “as representatives of the young generation of the Russian Federation” was based on recognizing “the legitimate interests of minors constituted an important social value” [p. 2]. The Court emphasized that one of the state’s goals in such regulation was to protect children from “factors negatively affecting their physical, intellectual, mental, spiritual, and moral development” [p. 2]. Citing Par. 1 of Article 14 of that same law, the Court noted that the Russian state authorities were obliged to act and undertake measures to protect children from “the information, propaganda, and agitation that were harmful to [their] health, moral, and spiritual development” [p. 2].
The Court held that the Ryazan regional legislation authorities established necessary measures to ensure children’s “intellectual, moral, and mental safety”, among which the ban of “homosexuality propaganda” was outlined in Article 4 of the Ryazan Children’s Morality Law [p. 2]. The Court defined “homosexuality propaganda” as “an activity for the purposeful and uncontrolled dissemination of information that could harm health, moral, and spiritual development” of children and could “distort their ideas about the social equivalence of traditional and non-traditional marital relations” [pp. 2-3]. The Court concluded that the “homosexuality propaganda” ban in itself among those who, due to their age, were unable to critically assess such information on their own was constitutionally permissible.
The Court acknowledged that, under Parts 1 and 4 of Article 29 of the Constitution, everyone in Russia had freedom of thought and speech, as well as “the right to freely distribute information by any legal way” [p. 3]. However, with reference to Part 2 of Article 10 of the European Convention on Human Rights, the Court stressed that such rights could be subject to restrictions under the law, which were “necessary for a democratic society” and would act “in the interests of national security, territorial integrity or public order, for the prevention of disorder and crime, for the protection of health and morals, for the protection of [one’s] reputation or the rights of others, for preventing the disclosure of information received in confidence, or ensuring the authority and impartiality of the judiciary” [p. 3].
The Court held that the contested regional laws of Ryazan did not put forward a ban on homosexuality or “the official censure” of homosexuality, “did not contain signs of discrimination, [and], in their meaning, did not allow excessive actions of public authorities” [p. 3]. The Court concluded that the contested laws did not infringe the Constitution or disproportionately restrict freedom of speech.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision contracts expression in Russia, as it upholds regional laws that ban “homosexuality propaganda” among minors, significantly restricting one’s freedom of speech on LGBTQ matters. The Court failed to elaborate how the activists’ efforts to raise awareness of sexual orientation diversity could have been harmful to children. On February 10, 2010, Fedotova submitted a complaint to the UN Human Rights Committee (Communication No. 1932/2010), claiming she had exhausted all available domestic remedies. According to the views adopted by the Committee on October 31, 2012, the State Party violated Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which protects everyone’s right to freedom of expression. The Committee stated that “by displaying posters that declared ‘Homosexuality is normal’ and ‘I am proud of my homosexuality’ near a secondary school building, the author [had] not made any public actions aimed at involving minors in any particular sexual activity or at advocating any particular sexual orientation. Instead, she was giving expression to her sexual identity and seeking understanding for it.”
Similar complaints were submitted to the UN Human Rights Committee following the exhaustion of all available domestic remedies in Russia. According to Communication No. 2318/2013, on January 1, 2012, Kirill Nepomnyashchiy, a Russian citizen, displayed a poster with the statement “Homosexuality is a healthy form of sexuality. This should be known by children and adults!” near a children’s library in Arkhangelsk, a city in the north of the European part of Russia. The action was interrupted by the police and on February 3, 2012, the Magistrates’ Court in the Oktyabrskiy district of Arkhangelsk held that Nepomnyashchiy had committed an administrative offense under Article 2.13 of the Arkhangelsk regional law on administrative offenses and imposed a fine of 1.8 thousand roubles (around $59 at the time). On April 26, 2012, the Oktyabrskiy District Court of Arkhangelsk rejected Nepomnyashchiy’s appeal. The UN Human Rights Committee found that the State Party had violated Articles 19 and 26 of the ICCPR, as the laws banning “propaganda of homosexuality among minors” restricted one’s freedom of expression and were discriminatory on the basis of sexual orientation and gender identity.
According to Communication No. 98/2016, on September 19, 2013, at the QueerFest festival, K.K., a Russian citizen and LGBTQ rights activist, and other festival visitors and volunteers were insulted and threatened by Vitaly Milonov, a deputy of the Saint Petersburg Legislative Assembly when one of the men accompanying Milonov attempted to use violence and K.K. requested the police to intervene (and the police ignored her request). On September 30, 2013, K.K. filed a complaint to initiate judicial proceedings against Milonov for insult and discrimination but the Office of the Prosecutor of the Primorsky district of Saint Petersburg rejected the complaint and K.K.’s appeal efforts failed. On February 25, 2019, the UN Human Rights Committee found that “the communication [was] insufficiently substantiated for the purposes of admissibility.”
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