Sunday 31 October 2010

Moscow Ban on Gay Pride March Violates European Convention on Human Rights

In Alekseyev v. Russia21 October 2010, a Chamber of the European Court of Human Rights held that Russia had violated the right to freedom of peaceful assembly (article 11 of the European Convention) by imposing a ban on Gay Pride marches in 2006, 2007 and 2008.
Moscow authorities had justified the ban because there had been opposition and even threats of violence from certain religious extremists. According to the Court,
the Government failed to carry out an adequate assessment of the risk to the safety of the participants in the events and to public order. It reiterates that if every probability of tension and heated exchange between opposing groups during a demonstration were to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views on any question which offends the sensitivity of the majority opinion (para. 77).
The Court noted that the mayor of Moscow had frequently expressed his determination to prevent gay parades and similar events from taking place, apparently because he considered them inappropriate. Also, Russia’s observations before the Court said ‘such events should be banned as a matter of principle, because propaganda promoting homosexuality was incompatible with religious doctrines and the moral values of the majority, and could be harmful if seen by children or vulnerable adults’. The Court said ‘these reasons do not constitute grounds under domestic law for banning or otherwise restricting a public event’ (para. 79). It said ‘it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority’ (art. 81).
Responding to Russia’s claim that it had a ‘margin of appreciation’ on such matters, which were not subject to a European consensus, the Court explained:
There is ample case-law reflecting a long-standing European consensus on such matters as abolition of criminal liability for homosexual relations between adults (see Dudgeon, cited above; Norris v. Ireland, 26 October 1988, Series A no. 142; and Modinos v. Cyprus, 22 April 1993, Series A no. 259), homosexuals’ access to service in the armed forces (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, ECHR 1999-VI), the granting of parental rights (see Salgueiro da Silva Mouta v. Portugal, no. 33290/96, ECHR 1999-IX), equality in tax matters and the right to succeed to the deceased partner’s tenancy (see Karner v. Austria, no. 40016/98, ECHR 2003-IX); more recent examples include equal ages of consent under criminal law for heterosexual and homosexual acts (see L. and V. v. Austria, nos. 39392/98 and 39829/98, ECHR 2003-I). At the same time, there remain issues where no European consensus has been reached, such as granting permission to same-sex couples to adopt a child (see Fretté v. France, no. 36515/97, ECHR 2002-I, and E.B. v. France [GC], no. 43546/02, ECHR 2008‑...) and the right to marry, and the Court has confirmed the domestic authorities’ wide margin of appreciation in respect of those issues.
The Court added that even if there was no European Consensus, this was no relevant, ‘because conferring substantive rights on homosexual persons is fundamentally different from recognising their right to campaign for such rights’ (para. 84).
The Court also said:
There is no scientific evidence or sociological data at the Court’s disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities’ social status, would adversely affect children or “vulnerable adults”. On the contrary, it is only through fair and public debate that society may address such complex issues as the one raised in the present case. Such debate, backed up by academic research, would benefit social cohesion by ensuring that representatives of all views are heard, including the individuals concerned. It would also clarify some common points of confusion, such as whether a person may be educated or enticed into or out of homosexuality, or opt into or out of it voluntarily. (para. 86)

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