A Legal Anaylsis on the Ban of LGBT Propaganda in Russia

Ashkhen Kazaryan

The ban on gay propaganda has been one of the major discussion points in the human rights conversation in Russia. Below well go through main legislation adopted in Russia and the problems arising from it.

The first legislative prohibition of propaganda of homosexuality in Russia was adopted in 2006 in the Ryazan region. To date, such bans have passed in 11 regions of Russia. On 30 June 2013, aFederal law banning propaganda of non-traditional sexual relations,” was signed by President Putin and on 1 July 2013 it came into force. The adopted law establishes administrative responsibility for the promotion of non-traditional sexual relations among minors. It also makes changes to the federal law On Protecting Children from Information Harmful to Their Health and Development, according to which the information forbidden for distribution among children is information that promotes non-traditional sexual relationships.

Furthermore, the Act amends the Law On Basic Guarantees of the Rights of the Child in the Russian Federation, establishing that the state authorities of Russia shall take measures to protect children from the information that promotes non-traditional sexual relationships.

The adopted amendments to the Code set a fine between 4 and 5 thousand rubles ($100-$120) for individuals, from 40 to 50 thousand rubles ($1000 – $1200) – for officers, and 800 thousand to 1 million rubles ($30,000 – $32,000) or administrative suspension of activity for up to 90 days, for legal entities. In the event that such propaganda was made using the media (including the Internet), the penalty for individuals increases.

In addition, the new law specifies separate punishment for foreigners or stateless persons. Thus, such a person distributing propaganda can be fined up to 4 to 5 thousand rubles, or punished with administrative arrest for up to 15 days with administrative expulsion from Russia. In the case of the media (including the Internet) promoting “non-traditional sexual relations, the fine for foreigners will be from 50 to 100 thousand rubles or administrative arrest for up to 15 days with expulsion from Russia. In both cases deportation as an additional measure occurs.

Four Dutch tourists were the first to be imprisoned under this law in Mid-July 2013 after they were suspected of promoting homosexuality to minors. A documentary team arrived in the Russian city of Murmansk to film the city and the lives of the LGBT community there. During a workshop with local LGBT groups, police came and arrested the group leader Chris van der Veen, and three other members of the team. Police were allegedly seeking minors at the meeting, but did not find any. They did, however, discover a 17 -year-old in the film footage and were able to detain the arrested tourists.

Another important issue is that only the law adopted in St. Petersburg and two high court decisions provide a definition of LGBT propaganda. In 2010 the Constitutional Court of the Russian Federation defined it as purposeful activity and uncontrolled dissemination of information that could harm the health, moral and spiritual development, including forming misconceptions ideas about social equivalence of traditional and non-traditional marital relations. And later the Supreme Court of Russia ruled that not any public actions may be considered propaganda, and thus its ban does not interfere with the right to receive and impart information of a general, neutral content about homosexuality, to organize public events in the manner prescribed by law, including open public debate about the social status of sexual minorities without imposing homosexual attitudesto minors, who are not able to, due to age, independently critically evaluate such information.

All of the above has been done in the name of family and traditional family values. In 2009, Russia even proposed three resolutions to the United Nations Human Rights Council, which were aimed to protect traditional values. But the Council rejected them and noted often minority rights violations are justified by the traditional, cultural and religious values and it is the State’s duty to lead traditional valuesin accordance with human rights standards. President Putin, commenting on this legislation, stated that their goal was to help the demographic situation in Russia and that there is no violation of anyones rights at all. Prime Minister Medvedev went on record saying that he hasnt seen – being an active user of Internet,or through official channels – even one statement that these laws discriminated their rights.

So, based on the above and international law we can come to the following conclusions. Firstly, provisions of the anti-gay propaganda laws are too vague or not defined at all. This leads to an arbitrary application of the law and does not give a clear definition of what behavior is legal and what is not, which leads to the self-deterrence of peoples’ respective expressions.

Secondly, these laws have consolidated, according to human rights activists, the disparity of traditional and non-traditional relationships at the legislative level, and has made a crime of the distribution of a different opinion (e.g., equality of rights of LGBT families).

Thirdly, the law limits freedom of association. The legislation of the Russian Federation establishes a notification procedure for public events, but in most cases the state authorities refused to agree to LGBT events. Human rights activists point out discriminatory reasons for the refusal, which reference the norms of anti-LGBT propaganda laws, violation of public morality and the inability to ensure the safety of participants. In this case, international human rights organizations believe that any restrictions should be based on the universality of human rights, due to the variability of morality.

Also, the threshold for the limitation of the right to peaceful assembly due to the inability to provide security should be very high. Human rights activists argue that instead of prohibiting peaceful assembly, the government should take additional measures to protect participants (for example, increase the number of police officers for protection). In 2011 the judgment of the European Court of Human Rights, in a case concerning the banning of LGBT parades in Moscow, stressed that the mere presence of risk is not sufficient basis for banning the eventand if the exercise of the right to peaceful assembly and association by a minority group were conditional on its acceptance by the majority, that would be incompatible with the values of the Convention.

About the Author

Ashkhen Kazaryan is a third year PhD Candidate at the Law School of Lomonosov Moscow State University and a 2013-2014 Fox Fellow at Yale. She was Vice-Head of the legal department of an aircraft company and interned in a few consultancy law firms, including a major civil-litigation firm in Louisiana. In her first year in the PhD program she also taught a course on Theory of Lawat the School of Political Science of Lomonosov MSU and is a Visiting Professor at Vahtangov Theatre Academy, teaching a course Theatre & Law. Now, she is also working closely with Glasnost Defense Foundation – a non-profit organization with the stated goals of defense of journalists, journalism, and the freedom of expression in Russia. Her academic interests include freedom of speech and expression research, intellectual property law, art law and restitution of looted art.

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