United Nations ccpr/C/106/D/1932/2010




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United Nations

CCPR/C/106/D/1932/2010



International Covenant on
Civil and Political Rights


Distr.: General

19 November 2012


Original: English
Advance Unedited Version
Human Rights Committee

Communication No. 1932/2010

Views adopted by the Committee at its 106th session (15 October – 2 November 2012)

Submitted by: Irina Fedotova (not represented by counsel)

Alleged victim: The author

State party: Russian Federation

Date of communication: 10 February 2010 (initial submission)

Document references: Special Rapporteur’s rule 97 decision, transmitted to the State party on 18 March 2010 (not issued in document form)

Date of adoption of Views: 31 October 2012

Subject matter: Bringing the author to administrative responsibility for “public actions aimed at propaganda of homosexuality among minors”.

Substantive issues: Right to impart information and ideas; permissible restrictions; right to the equal protection of the law without any discrimination.

Procedural issues: Abuse of the right of submission; exhaustion of domestic remedies

Articles of the Covenant: 19; 26

Articles of the Optional Protocol: 3; 5, paragraph 2(b)

Annex

Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political rights (106th session)

concerning



Communication No. 1932/2010*

Submitted by: Irina Fedotova (not represented by counsel)

Alleged victim: The author

State party: Russian Federation

Date of communication: 10 February 2010 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 31 October 2012,

Having concluded its consideration of communication No. 1932/2010, submitted to the Human Rights Committee by Irina Fedotova under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.1 The author of the communication is Irina Fedotova, a Russian national born in 1978. She claims to be a victim of a violation by the Russian Federation of her rights under article 19 and article 26 of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for the State party on 1 January 1992. The author is not represented.

1.2 On 20 May 2010, the State party requested the Committee to examine the admissibility of the communication separately from its merits, in accordance with rule 97, paragraph 3, of the Committee's rules of procedure. On 13 August 2010, the Chairperson decided, on behalf of the Committee, to examine the admissibility of the communication together with the merits.

The facts as presented by the author

2.1 The author is an openly lesbian woman and an activist in the field of lesbian, gay, bisexual and transgender (LGBT) rights in the Russian Federation. In 2009 she, together with other individuals, tried to hold a peaceful assembly in Moscow (so called “Gay Pride”), which was banned by the Moscow authorities. A similar initiative to hold a march and a “picket” to promote tolerance towards gays and lesbians was banned in the city of Ryazan in 2009.

2.2 On 30 March 2009, the author displayed posters that declared “Homosexuality is normal”1 and “I am proud of my homosexuality”2 near a secondary school building in Ryazan. According to her, the purpose of this action was to promote tolerance towards gay and lesbian individuals in the Russian Federation.

2.3 The author’s action was interrupted by police and, on 6 April 2009, she was convicted by the justice of the peace of an administrative offence under section 3.10 of the Ryazan Region Law on Administrative Offences of 4 December 2008 (Ryazan Region Law) for having displayed the posters in question. This provision reads in relevant part: “Public actions aimed at propaganda of homosexuality (sexual act between men or lesbianism) among minors shall be punished with administrative fine in the amount ranging from one thousand five hundred to two thousand roubles”.3 The author was ordered to pay a fine of 1’500 Russian roubles.4

2.4 On an unspecified date, the author appealed the ruling of the justice of the peace to the Oktyabrsky District Court of Ryazan (Oktyabrsky District Court). In her appeal, she asked the Oktyabrsky District Court to revoke the ruling and to request the Constitutional Court to assess the compatibility of section 3.10 of the Ryazan Region Law with articles 19, 29 and 55, part 3, of the Constitution of the Russian Federation of 12 December 1993 (Constitution). She also asked to suspend proceedings in her case, pending the ruling of the Constitutional Court on the matter.

2.5 In her appeal to the Oktyabrsky District Court the author stated that she did not dispute the facts but considered that the ruling of the justice of the peace was based on the provision of law that was contrary to articles 19 and 29 of the Constitution that, respectively, prohibit discrimination on the ground of social status and guarantee the right to freedom of thought and expression. She further submitted that it was unclear from the wording of section 3.10 of the Ryazan Region Law what was meant with “propaganda of homosexuality”, because from the constitutional point of view “propaganda” was an essential component of the exercise of the right to freedom of expression. Therefore, the author added, she had a right to promote certain points of view in relation to homosexuality. She argued that section 3.10 of the Ryazan Region Law unreasonably discriminated against individuals with “non-standard sexual orientation” by prohibiting any dissemination of information about them. The author submitted that, by displaying posters, she acted on the basis of article 29 of the Constitution with the aim to promote tolerance towards homosexuality among minors and the idea that homosexuality was “normal” from the point of view of medical science. Finally, she argued that section 3.10 of the Ryazan Region Law established restrictions on the exercise of her right to freedom of expression, although under article 55, paragraph 3, of the Constitution, this right could be restricted only by federal law.

2.6 On 14 May 2009, the ruling of the justice of the peace was upheld by the federal judge of the Oktyabrsky District Court. The Court determined that under article 55 of the Constitution, individual rights and freedoms, including those guaranteed under articles 19 and 29 of the Constitution, could be restricted by federal law and only 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 defence and national security. It added that the Code on Administrative Offences of the Russian Federation (Code on Administrative Offences) was in fact such a federal law and that, according to article 1.1 of the said Code, the law on administrative offences consisted of the present Code and laws on administrative offences adopted in compliance with it by the Subjects of the Russian Federation. The Court stated that the Ryazan Region Law was based on the Constitution and the Code on Administrative Offences, thus it was a part of the law on administrative offences. It concluded that section 3.10 of the Ryazan Region Law was not contrary to the Constitution and that it established restrictions (administrative liability) on the right to freedom of expression, including freedom to impart information, that were aimed at protecting morals, health, rights and legitimate interests of minors.

2.7 The author submits that she has exhausted all available and effective domestic remedies for purposes of article 5, paragraph 2(b), of the Optional Protocol.



The complaint

3.1 The author submits that the ruling of the justice of the peace of 6 April 2009 interfered with her right to freedom of expression guaranteed under article 19 of the Covenant, because she was banned from disseminating ideas of a tolerant attitude towards sexual minorities and convicted of an administrative offence for doing so. Such restrictions can be justified under article 19, paragraph 3, only if they were “provided by law” and “necessary” for one of the legitimate aims.

3.2 The author further submits that she was convicted of an administrative offence under section 3.10 of the Ryazan Region Law and that, therefore, the restriction on the exercise of her right to freedom of expression was de jure “provided by law”. She argues, however, that under article 55, paragraph 3, of the Constitution, freedom of expression can be restricted only by federal law. Since the Ryazan Region Law is not a federal law, the interference with her right to freedom of expression did not comply with the Constitution, and, therefore, cannot be regarded as being “provided by law” within the meaning of article 19, paragraph 3, of the Covenant.

3.3 The author claims that, even if the interference was “provided by law”, it was not “necessary”, because it did not pursue one of the legitimate aims set out in article 19, paragraph 3, of the Covenant. She acknowledges that the aim of the restriction was to protect public health or morals of minors (in the Russian Federation, persons under 18) by prohibiting others from “inciting minors to have intimate relations between persons of the same sex”. In this regard, the author submits that she did not promote any ideas that would incite minors to such actions and that the purpose of her displaying posters was to educate the public, including minors, about a tolerant attitude towards homosexuality. She further claims that the wording of the Ryazan Region Law is not sufficiently clear, because it puts an absolute ban on disseminating any ideas related to homosexuality, including objective or neutral information aimed at educating minors and helping them to develop a tolerant attitude towards homosexual individuals. The author argues that the blanket ban on imparting any information on homosexuality to minors makes her freedom of expression merely theoretic and illusory.5

3.4 In the present case, the author was fined for having displayed posters that declared “Homosexuality is normal” and “I am proud of my homosexuality” which, pursuant to section 3.10 of the Ryazan Region Law is an administrative offence against public morals defined as “propaganda of homosexuality among minors”. In this connection, the author submits that propaganda always implies dissemination of certain ideas or educating public on certain issues in order to change public opinion. From the Covenant’s perspective, propaganda is one of components of freedom of expression and, therefore, anyone has the right to advocate for certain ideas in relation to homosexuality.

3.5 The author further submits that homosexuality is an objective characteristic of a large group of individuals in any society. In the present case, the author claims that the Ryazan Region Law prohibits dissemination of any information related to homosexuality, including neutral in its content, among minors. Judging by the fact that section 3.10 is placed in chapter 3 of the Ryazan Region Law (administrative offences against health, sanitary and epidemiologic wellbeing and public morals)6 the aim of this prohibition is to protect morals of minors. It follows that the said law is based on the assumption that homosexuality is something immoral, which is clearly against modern understanding of homosexuality as a characteristic based on sexual orientation and not on someone’s conscious choice of sexual behaviour.

3.6 The author claims, therefore, that the Ryazan Region Law is also contrary to article 26 of the Covenant, which states that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. She adds that the Ryazan Region Law discriminates against homosexual individuals by de facto prohibiting dissemination of any information about them among minors and that there is no objective justification for such difference in treatment under the Covenant. In this respect, the author refers to the Committee’s concluding observations on the sixth periodic report of the Russian Federation. The Committee noted with concern “the systematic discrimination against individuals on the basis of their sexual orientation in the State party, including hate speech and manifestations of intolerance and prejudice by public officials, religious leaders and in the media”.7

3.7 The author concludes by asking the Committee to find that the ruling of the justice of the peace of 6 April 2009, convicting her of an administrative offence for “propaganda of homosexuality among minors”, was disproportionate to any legitimate aims pursued, and therefore violated article 19 and article 26 of the Covenant.



State party's observations on admissibility

4.1 On 20 May 2010, the State party recalls the facts of the case and challenges the admissibility of the communication, arguing that the author did not exhaust all available domestic remedies. It submits that the author could have used the ordinary appeal procedures envisaged by article 30.9 of the Code on Administrative Offences and appealed the decision of the federal judge of the Oktyabrsky District Court dated 14 May 2009 to another judge of the same Oktyabrsky District Court or to the Ryazan City Court. Furthermore, the author could have lodged an appeal to the Supreme Court of the Ryazan Region and then, if necessary, to the Supreme Court of the Russian Federation, against the decision of the Oktyabrsky District Court, which already became executory, under the supervisory review procedure envisaged by article 30.12, part 1, of the Code on Administrative Offences. The State party argues that the author has deliberately not availed herself of these avenues for appeal and, consequently, her assertion that she had exhausted all domestic remedies does not “correspond to the facts”.

4.2 The State party also considers the present communication to be an abuse of the right of submission, because the author was not subjected to discrimination on any ground. It states that the institution of administrative proceedings against her was based on the fact that she breached specific legal provisions – and the author herself does not dispute this fact – and was unrelated to her sexual orientation. The State party submits, therefore, that the communication should be declared inadmissible under article 3 and article 5, paragraph 2(b), of the Optional Protocol.

Author’s comments on the State party’s observations

5.1 On 22 July 2010, the author submits that the State party's claim in relation to article 30.9 of the Code on Administrative Offences is based on the “misinterpretation of the basic provisions of the Russian administrative proceedings". She argues that under article 30.1 of the Code on Administrative Offences, a ruling on an administrative offence issued by a judge (as is in her case) may be appealed to a higher court. For this reason, she appealed the ruling of the justice of peace dated 6 April 2009 to a higher (second instance) court, that is, the Oktyabrsky District Court. The author further submits that article 30.9 of the Code on Administrative Offences invoked by the State party, does not apply to her case, because the provision in question covers appeals against decisions on administrative offences issued by non-judicial authorities, that is, state officials.

5.2 The author states that pursuant to 329 of the Civil Procedure Code, decision of the higher (second instance) court becomes executory from the moment of its adoption. She adds in this regard that the Supreme Court of the Russian Federation has explained that article 30.9 of the Code on Administrative Offences does not provide for an opportunity to appeal against the decision of a higher (second instance) court and that, therefore, such decision became executory from the moment of its adoption.8 The author submits, therefore, that she has used all ordinary appeal procedures available to her under the State party’s law.

5.3 As to the State party’s claim that the author could have lodged an appeal under the supervisory review procedure, she argues that such a procedure is not an effective remedy within the meaning of the Optional Protocol, because it does not guarantee an automatic right to have the merits of the supervisory appeal considered by a panel of judges (the Presidium of the Ryazan Region Court or the Supreme Court of the Russian Federation). The author states that according to article 381 of the Civil Procedure Code, a supervisory appeal is considered by a judge of the supervisory review court, who has a right to reject it without requesting the case file from the lower instance. Only if this judge finds the appeal’s arguments convincing enough, s/he may decide to request the case file and, at the judge’s discretion, transmit the case for consideration by the panel of judges of the supervisory review court.

5.4 In deciding on the admissibility of the present communication, the author respectfully asks the Committee to consider the position of the European Court of Human Rights, which held on numerous occasions that the supervisory review procedure was not an effective remedy within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), as the grounds for quashing final judgments of the lower courts were not clear from the Civil Procedure Code and the procedure was not directly accessible to the applicants.9

5.5 The author further submits that she, together with the other two individuals, has made a last attempt to seek justice on the domestic level by appealing to the Constitutional Court. In its ruling of 19 January 2010, the Constitutional Court dismissed her appeal and held that the prohibition of propaganda of homosexuality as "intentional and uncontrolled dissemination of information capable of harming health, morals and spiritual development, as well as forming perverted conceptions about equal social value of traditional and non-traditional family relations - among individuals who, due to their age, lack the capacity to critically and independently assess such information" could not be considered as a violation of constitutional rights. Therefore, the author requests the Committee to conclude that the position of the Constitutional Court is contrary to the standards enshrined in the Covenant, because in a modern democratic society "traditional" (different-sex) and "non-traditional" (same-sex) relations should be considered as equally valuable. In her opinion, the Constitutional Court effectively upheld the approach of the Ryazan Region Law and the Ryazan Region Law on Protection of Morals of Children in Ryazan Region that any information about homosexuality is prima facie immoral and detrimental to the development of a child. The author argues that she has a right to disseminate information aimed at promoting the idea of equal value of homosexuals in the Russian society.

5.6 As transpires from the ruling of 19 January 2010, the Constitutional Court noted that article 38 of the Constitution specifically protects motherhood, childhood and the family. In the Court’s view, the traditional understandings of family, motherhood and childhood are values that require special protection from the State. According to the Court, legislators acted on the premise that the interests of minors were an important social value. One of the aims of State policy on the protection of children was the protection of minors from factors that could negatively impact their physical, intellectual, mental, spiritual and moral development. More precisely, the Russian Federal Law on the Basic Guarantees of the Rights of the Child in the Russian Federation protected children from information, propaganda and agitation that could harm their “health [and] moral and spiritual development”. In the Court’s view, the challenged provisions were adopted with the aim of ensuring the intellectual, moral and psychiatric security of children.

5.7 The Constitutional Court then analyzed the protection of the right to freedom of expression provided by the Constitution. Article 29 of the Constitution guarantees the right to freedom of speech, as well as the right to freely disseminate information by all lawful means. However, the Court noted that under article 10 of the European Convention, freedom of expression was subject to limitations, provided such limitations were established by law, had a legitimate purpose and were necessary in a democratic society. Finally, the Court established that the Ryazan Region Law and the Ryazan Region Law on Protection of Morals of Children in Ryazan Region did not prohibit or disparage homosexuality. They did not discriminate against homosexuals nor did they grant excessive powers to public authorities. The Court therefore concluded that the challenged provisions of the said Laws could not be considered to limit freedom of expression excessively.

5.8 The author submits a copy of the legal opinion prepared by the International Commission of Jurists (ICJ) upon her request and asks the Committee to take it into account in considering the merits of her communication.

5.9 In its legal opinion, the ICJ firstly considers the effect of the Committee’s Views in Hertzberg et al. v. Finland,10 in which it accepted, as a justification provided for in article 19, paragraph 3, of the Covenant, the public morals limitation invoked by the Finnish Government in defense of paragraph 9 of chapter 20 of the Finnish Penal Code, which provided that anyone “publicly encourage[ing] indecent behavior between persons of the same sex” was subject to a six-month prison sentence or a fine. The ICJ submits that the outcome in the said communication is not dispositive of this matter, because:

a) Equality law, in the jurisprudence of the Committee and other human rights bodies, has developed significantly since April 1982 when the Views in Hertzberg et al. v. Finland have been adopted. At that time, sexual orientation was not recognized as a status protected from discrimination and now it is.11

b) Also since 1982, the Committee and other institutions have recognized that limitations on rights must not violate the prohibition of discrimination. Even a limitation with a permissible aim – such as the protection of public morality – may not be discriminatory.

c) Conceptions of public morality are subject to change12 and what was considered justifiable with reference to public morality in 1982 is no longer the case today. Laws similar to paragraph 9 of chapter 20 of the Finnish Penal Code have since been repealed in states such as Austria and the United Kingdom. Furthermore, the Committee’s jurisprudence reflects the evolution of the “public morals” conceptions, as does the case-law of the European Court of Human Rights.13

5.10 The ICJ then submits that the Ryazan Region Law is an impermissible limitation of freedom of expression because it is discriminatory, for the following reasons: (1) Sexual orientation is a protected ground under articles 2 and 26 of the Covenant;14 (2) Limitations on rights cannot be discriminatory, whether in law or practice. A law that differentiates on the basis of sexual orientation is therefore discriminatory, in violation of the Covenant, unless it has a reasonable and objective justification, and is aimed at a legitimate purpose; and (3) Public morality is not a reasonable and objective justification.

5.11 The ICJ argues that enjoyment of all Convention rights without discrimination means that the freedom of expression of LGBT individuals, as well as the expression concerning sexual orientation and same-sex relationships cannot be restricted in a discriminatory manner. Any restriction on expression about sexuality must be neutral with respect to sexual orientation.15 Laws restricting freedom of expression must be compatible with the aims and objectives of the Covenant and must not violate its non-discrimination provisions.16 They may not be imposed for discriminatory purposes or applied in a discriminatory manner.17 The ICJ argues that even the proportionate use of a permissible aim, such as public morality, cannot be the basis for a restriction on freedom of expression if it is applied in a discriminatory manner. Therefore, by penalizing “public actions aimed at propaganda of homosexuality” – as opposed to propaganda of heterosexuality or sexuality generally – the Ryazan Region Law enacts a difference in treatment that cannot be justified. It singles out one particular kind of sexual behavior for differential treatment. It does so even though sexual relationships between consenting adults of the same sex are not illegal in the Russian Federation.

5.12 Furthermore, although not every differentiation of treatment will constitute discrimination, the criteria for such differentiation must be reasonable and objective and the aim must be to achieve a purpose that is legitimate under the Covenant.18 Because sexual orientation is a prohibited ground, a difference in treatment founded on sexual orientation constitutes discrimination, in violation of the Covenant, unless there is a “reasonable and objective” justification.19 Public morality does not amount to such a justification. Since Hertzberg et al. v. Finland, public morality arguments have diminished in weight.20 The ICJ submits that courts around the world have held that public morality is not a sufficient reason to justify a difference in treatment and established that concerns about public morality cannot serve to defend disparate treatment based on sexual orientation.21 It adds that the Ryazan Region Law is clearly intended to target any information about homosexuality, including information that is in no manner “obscene” under criminal law.

5.13 The ICJ further submits that the Ryazan Region Law also has serious implications for the right of children to receive information. In addition to article 19, paragraph 2, of the Covenant, the right of children to receive information concerning sexuality is specifically protected under article 13 of the Convention on the Rights of the Child.22 The right of children to receive information about sexuality and sexual orientation is related to their rights to education and to health.23

5.14 For the foregoing reasons, the ICJ concludes that section 3.10 of the Ryazan Region Law contravenes the State party’s obligations under the Covenant.


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