The Indirect Influence of the ECtHR on the Russian Legislature Concerning the LGBT Community

Since the Russian Supreme Court ratified the European Convention on Human Rights in 1998, the European Court of Human Rights has gradually influenced Russian legislation. Pressure from the ECtHR has driven progress in several areas of Russian legislation, including prison conditions, the rights of legally incapacitated persons, and the overall transparency and efficiency of the judicial system.[1] All of these areas enjoy a rather narrow margin of appreciation in the tradition of the ECtHR. At the same time, cases falling within a wider margin of appreciation have not gained significant influence on the Russian legal system. One of the areas in which the ECtHR is repeatedly criticized for an insufficiently moderate response is the protection of LGBT persons, particularly in a time of rising homophobia in Russia.[2] In this essay, I will attempt to examine how the ECtHR's rulings indirectly influence Russian legislation by considering Russia's laws against LGBT propaganda.

Russia's anti-LGBT policy dates back two centuries, but its modern emanation manifested itself in the late 2000s, when regions began to adopt laws prohibiting the exposure of minors to information about all kinds of non-heterosexual behavior. Later, in 2013, the federal law prohibiting propaganda of nontraditional sexual relations with children was ratified with Putin's signature. This ratification signaled Russia's intention to interpret human rights in its own way. The law has caused considerable criticism not just towards Russia itself, but also the ECHR and the Council of Europe in general for their inaction on this situation.

The first indirect interference in the Russian legislature, in my opinion, can be observed in the way an anti-LGBT propaganda law is formulated. Unlike the laws of the USSR, which banned or medically stigmatized homosexuality, the Russian law only bans its public representations.[3] Although still clearly discriminatory, the extent is much less than a direct ban: it is now impossible to imprison a person for the mere fact of belonging to the LGBT community, as was the case in the USSR.

Moreover, the law is ambiguous and does not refer directly to the LGBT community, but to information about it. This wording allows it to be interpreted as a law that protects the fundamental right to respect for private and family life in order to comply with the general principles of human rights. Indeed, such an interpretation is found in the dissenting opinion of Judge Dedov in Bayev and Others v. Russia.[4] Such subtle state discrimination has been attempted in Poland's recent rhetoric aimed at banning any information about LGBT issues.[5] Rhetoric like this does not prevent the Court from accepting cases on Article 8 and Article 14 violations. In 2016, another case was accepted before the Court concerning the inability to legally register LGBT couples in Russia.[6]

Before the federal ratification of the anti-LGBT laws, the ECtHR was rather effective in the defense of LGBT activists’ rights. In 2010, when the anti-LGBT laws were only accepted on the municipal level in Russia, the Court ruled against such laws in the case of Alekseyev v Russia. Alekseyev applied to the Court after being rejected by the state to hold a pride-parade in Moscow. The ECtHR has ruled that the decision of the state violated Articles 11, 13, and 14 of the Convention. In fact, the Court stated that “where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow.”[7] Thus, there is a reason to suppose a direct cohesive reaction of the ECHR to the anti-propaganda law.

The Court exhibited such a reaction in the 2017 case of Bayev and Others v. Russia. The case featured the abovementioned Alekseyev. The applicants were fined in Russia under the anti-LGBT propaganda laws for hanging up posters on the normality of homosexuality in front of a secondary school. Not only has the Court accepted the breach of Article 14 in conjunction with Article 10, but it has also commented directly on the law saying that “such measures are likely to be counterproductive in achieving the declared legitimate aims of the protection of health and the protection of rights of others.”[8] The same outcome has followed in a similar case of Zhdanov and Others v. Russia in 2019, which once again mentioned the narrow margin of appreciation when it comes to discrimination on the grounds of sexual orientation.

However, none of these cases, despite their wide publicity, gained any influence on the judicial or legal situation of LGBT persons in Russia. The insistence and cohesiveness of the ECtHR in such cases did not improve the situation. On the contrary, in December 2020, Putin suggested fixating the definition of marriage in the constitution as a union between a man and a woman.

The rise of anti-LGBT policies in Russia is also indirectly connected to the European institutions and the ECtHR in particular. The ever-growing concern of the Court and decisions condemning the laws more and more clearly and rigorously influence Russia’s strong stance against the LGBT community. Decisions of the Court may be perceived, according to Russian leaders, as part of the European attempt to impose values that are alien to Russia. By making judgments strongly opposing Russia’s framework of values, the Court might lose legitimacy for the country, making it even more difficult to influence the legislative and judicial spheres. Recently proposed changes to the constitution include the priority of the Russian law over any international judicial decision into the Constitution even though Russia already practices that right.

The Court is not the only institution advocating for non-discrimination. Indeed, tolerance, the moral ground of non-discrimination and inclusion, has become one of the main European values. It is promoted widely, not only in the EU, but also in the countries included in the EU’s neighborhood policy. For example, countries like Ukraine, Armenia or Georgia, have suspended their homophobic agenda from politics in an attempt to “fit into” the European systems of value in order to gain more economic and political benefits.

Putin, on the other hand, has been publicly advocating for the exclusion of LGBT information from the public as part of his attempt to create a framework of values and laws defying those promoted in Europe. Putin attempts to do so by building such a framework on traditions.[9] This opposition can be described with the concept of competing organizational fields. The concept supposes that different institutions cooperate with each other when they have common interests. The group of institutions with the same values and aims constitute an organizational field. Russia strives to be separate from the European organizational field by creating a completely different one, namely the Eurasian organizational field.[10] By contributing to the European organizational field, the ECtHR indirectly influences the judicial and legislative processes in Russia.

In this attempt of analysis with an op-ed nature, I showcased that the ECtHR has both positive and negative impacts on the legislature concerning the LGBT community in Russia. On the one hand, Russian laws are drawn with regard to principles defended by the Convention. On the other hand, a new Russian rhetoric opposes those principles in a rather manifesting fashion. Of course, factors of higher magnitude are at play here. Politics, for example, influence Putin’s ambition to create an alternative legal framework more than the Council of Europe or ECtHR. Yet, it seems important to highlight the conflict of values promoted by the Russian authorities. The ECtHR is almost the only international institution able to perform any kind of influence on Russian legislature. The lack of other such available instruments makes the efforts to improve the situation of LGBT rights in Russia almost unproductive and even, one may argue, hopeless. Yet, there is room for hope: with an improved political climate and better cooperation, the ECtHR can improve its legitimacy and thus influence Russian legislators.

Bibliography:

Barber, Lionel, Henry Foy, and Alex Barker. “Vladimir Putin Says Liberalism Has ‘Become Obsolete.’” Financial Times, June 28, 2019. https://www.ft.com/content/670039ec-98f3-11e9-9573-ee5cbb98ed36.

Engelstein, Laura. “Soviet Policy Toward Male Homosexuality:: Its Origins and Historical Roots.” Journal of Homosexuality 29, no. 2–3 (November 27, 1995): 155–78. https://doi.org/10.1300/J082v29n02_06.

Justine De Kerf. “Anti-Gay Propaganda Laws: Time for the European Court of Human Rights to Overcome Her Fear of Commitment.” DiGeSt. Journal of Diversity and Gender Studies 4, no. 1 (2017): 35. https://doi.org/10.11116/digest.4.1.2.

Povorova, Elena. “Russia and the European Convention on Human Rights: 20 Years Together.” Case-Law of the European Court of Human Rights, no. 5 (2018). https://rm.coe.int/russia-and-the-european-convention-on-human-rights-20-years-together-b/16808b3b38.

Verpoest, Lien. “The End of Rhetorics: LGBT Policies in Russia and the European Union.” Studia Diplomatica 68, no. 4 (2017): 3–30.

Walker, Shaun. “Polish President Issues Campaign Pledge to Fight ‘LGBT Ideology.’” The Guardian, June 12, 2020. https://www.theguardian.com/world/2020/jun/12/polish-president-issues-campaign-pledge-to-fight-lgbt-ideology.

Case Law of the European Court of Human Rights

Bayev and Others v. Russia, no. 67667/09, 44092/12, 56717/12, ECHR (2017).

Fedotova and Shipitko v. Russia, no. 40792/10, 30538/14, 43439/14, ECHR (2016).

Alekseyev v. Russia, no. 4916/07, 25924/08, 14599/09, par. 109, ECHR (2010).

[1] Elena Povorova, “Russia and the European Convention on Human Rights: 20 Years Together,” Case-Law of the European Court of Human Rights, no. 5 (2018), https://rm.coe.int/russia-and-the-european-convention-on-human-rights-20-years-together-b/16808b3b38. [2] Justine De Kerf, “Anti-Gay Propaganda Laws: Time for the European Court of Human Rights to Overcome Her Fear of Commitment,” DiGeSt. Journal of Diversity and Gender Studies 4, no. 1 (2017): 35, https://doi.org/10.11116/digest.4.1.2. [3] Laura Engelstein, “Soviet Policy Toward Male Homosexuality:: Its Origins and Historical Roots,” Journal of Homosexuality 29, no. 2–3 (November 27, 1995): 155–78, https://doi.org/10.1300/J082v29n02_06. [4] Bayev and Others v. Russia, no. 67667/09, 44092/12, 56717/12, ECHR (2017): DISSENTING OPINION [5] Shaun Walker, “Polish President Issues Campaign Pledge to Fight ‘LGBT Ideology,’” The Guardian, June 12, 2020, https://www.theguardian.com/world/2020/jun/12/polish-president-issues-campaign-pledge-to-fight-lgbt-ideology. [6] Fedotova and Shipitko v. Russia, no. 40792/10, 30538/14, 43439/14, ECHR (2016). [7] Alekseyev v. Russia, no. 4916/07, 25924/08, 14599/09, par. 109, ECHR (2010). [8] Bayev and Others v. Russia, par. 83 [9] Lionel Barber, Henry Foy, and Alex Barker, “Vladimir Putin Says Liberalism Has ‘Become Obsolete,’” Financial Times, June 28, 2019, https://www.ft.com/content/670039ec-98f3-11e9-9573-ee5cbb98ed36. [10] Lien Verpoest, “The End of Rhetorics: LGBT Policies in Russia and the European Union,” Studia Diplomatica 68, no. 4 (2017): 13.