State party's further observations on admissibility and merits
6.1 On 9 December 2010, the State party recalls the facts of the case and states that the administrative fine imposed by the justice of the peace on the author was the minimal penalty provided for under section 3.10 of the Ryazan Region Law and was not “burdensome” for her. The State party then submits that all court decisions in the author’s case are lawful and well-founded, and puts forward its arguments, which are similar in substance to those of the Oktyabrsky District Court (see, paragraph 2.6 above) and of the Constitutional Court (see, paragraph 5.6 above). It states that the author’s claims about her being brought to administrative responsibility for her tolerant attitude towards homosexuality and for the free expression of her views do not “correspond to the facts”. She was brought to administrative responsibility for propaganda of homosexuality (sexual act between men and lesbianism) among minors.24
6.2 The State party further submits that, according to the author, the aim of her actions was to promote a tolerant attitude towards homosexuality in the society, including among minors. Therefore, she had a deliberate intent to engage children in the discussion of these issues. As a result, the public became aware of the author’s views exclusively on the initiative of the latter. Furthermore, her actions from the very beginning had an “element of provocation”. The State party adds that the author’s private life was not of interest either to the public or to minors, and that the public authorities did not interfere with her private life. For these reasons, the State party reiterates its initial argument that the present communication is an abuse of the right of submission and is thus incompatible with article 3 of the Optional Protocol.
6.3 The State party recalls that the author has deliberately not availed herself of the right to have recourse to the supervisory review procedure and that, therefore, her assertion that she had exhausted all domestic remedies does not “correspond to the facts”. For the foregoing reasons, the State party concludes that the author’s claims are groundless, the interference with her rights was proportionate and the communication itself is inadmissible under article 5, paragraph 2(b), of the Optional Protocol.
Authors’ comments on the State party’s further observations
7.1 On 3 February 2011, the author recalls the State party’s argument that bringing her to administrative responsibility had a legitimate aim of protecting children from “propaganda of homosexuality”, i.e. from information harmful to children from a moral point of view. In this respect, she submits that this approach is clearly discriminatory, as it is based on a presumption that homosexuality – as opposed to heterosexuality – is something immoral. The author adds that this approach lacks objective and reasonable justification because, in her opinion, it prohibits dissemination of any information on homosexuality, including neutral information, such as in the present communication. She draws the Committee’s attention to the findings of the European Court of Human Rights in Alekseyev v. Russia,25 concerning the ban by the Moscow authorities on the so called “Gay Prides” in 2006-2008. The author respectfully asks the Committee to consider the position of the European Court of Human Rights with regard to the public morality arguments raised by the State party.
7.2 With regard to the State party’s argument concerning the alleged non-exhaustion of domestic remedies, the author reiterates her earlier position explained in the submission of 22 July 2010 that supervisory review procedure is not an effective remedy. Moreover, any doubts in this regard have been dispelled by the decision of the Constitutional Court of 19 January 2010.
7.3 On 21 November 2011, the author asks the Committee to give priority treatment to the present communication, which is seen by her as being of significance for the development of jurisprudence in the field of LGBT rights. She submits that recent developments threaten the fundamental human rights of LGBT individuals in the Russian Federation26 and in other parts of the world,27 including the freedom of expression, freedom of assembly and freedom of association.
State party’s additional observations
8.1 On 17 August 2012, the State party submits its additional observations. It states that the amendments to St. Petersburg and the Arkhangelsk Region Laws on Administrative Offences were introduced with the aim of “combating the propaganda of sexual act between men, lesbianism, bisexualism and transgenderism among minors, as well as the propaganda of paedophilia, due to the numerous and collective requests of community representatives who expressed their protest against such propaganda”. The State party refers to the Model Law on Protection of Children against Information Detrimental to Their Health and Development that was adopted by the Interparliamentary Assembly of the Member States of the Commonwealth of Independent States on 3 December 2009. According to this Law, “propaganda” stands for “activities of natural and (or) legal persons disseminating information aimed at conditioning children’s behaviour and (or) creating stereotypes, or aimed at encouraging or effectively encouraging addressees of such information to perform certain actions or to refrain from performing certain actions”.
8.2 The State party adds that the said Law considers as “information detrimental to children’s health and development” information - the contents, presentation and (or) use of which - influence one’s subconscious mind and are capable of harming children’s physical or mental health and (or) provoking derangements of their spiritual, mental, physical and social development”. Such “derangements” include “development of perverted social preferences and attitudes, instigation to commit potentially dangerous deeds and acts, aggression, cruelty, violence or other antisocial actions (including those punishable by criminal law), inculcation of pathologic fear and horror or encouragement of children’s premature interest in sex and in early commencement of sexual life”.
8.3 The State party also refers to article 4, paragraph 1, article 5, paragraph 2, and article 14 of the Federal Law on the Basic Guarantees of the Rights of the Child in the Russian Federation and submits that one of the objectives of the State policy carried out in the Russian Federation in the interests of the children is to protect them from the factors that could negatively impact their physical, intellectual, mental, spiritual and moral development.
8.4 The State party further submits that in order to protect children from information detrimental to their health and (or) development, the Federal Law on Protection of Children against Information Detrimental to Their Health and Development of 29 December 2010 (in force as of September 2012) established requirements for the dissemination of information to children. The requirements include classification of information outputs, their expert assessment, as well as the State oversight and control of the compliance with the law on protection of children against information detrimental to their health and (or) development.
8.5 The State party recalls that the rights guaranteed under article 19, paragraph 2, of the Covenant are subject to certain restrictions provided for in paragraph 3 of the same article. It refers in this context to articles 17 and 34 of the Convention on the Rights of the Child, as well as to article 4, paragraph 2, of the Federal Law on the Basic Guarantees of the Rights of the Child in the Russian Federation, which sets out standards for the dissemination of printed, audio, video and other materials inadvisable for children below the age of 18.
8.6 The State party maintains that the Constitutional Court has carefully examined the facts of the case submitted by the author and two others, as well as their arguments before arriving at the conclusion that pursuant to the requirements of the Federal Law on Protection of Children against Information Detrimental to Their Health and Development, lawmakers of the Ryazan Region adopted measures aimed at ensuring intellectual, moral and mental safety of children in the Ryazan Region by, inter alia, prohibiting public actions aimed at propaganda of homosexuality. The State party also reiterates the finding of the Constitutional Court that the prohibition of such propaganda per se 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.
8.7 The State party argues that, in her comments, the author does not put forward any new arguments in relation to the substance of the present communication but rather interprets provisions of the international law. It adds that the State party’s submissions of 20 May 2010 and 9 December 2010 cover both the admissibility and the merits. As to the author’s comments in relation to the adoption of the laws prohibiting propaganda of sexual act between men, lesbianism, bisexualism and transgenderism among minors at the regional level, the State party submits that such laws are in full compliance with the international obligations of the Russian Federation and are aimed at protecting moral, spiritual, physical and mental development of children.
Issues and proceedings before the Committee
Consideration of admissibility
9.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not the case is admissible under the Optional Protocol to the Covenant.
9.2 The Committee has ascertained, as required under article 5, paragraph 2(a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
9.3 With regard to the requirement laid down in article 5, paragraph 2(b), of the Optional Protocol, the Committee takes note of the State party’s argument that the author could have used the ordinary appeal procedures envisaged by article 30.9 of the Code on Administrative Offences. In this respect, the Committee recalls that the State party must describe in detail which legal remedies would have been available to the author in the circumstances of her case, together with evidence that there would be a reasonable prospect that such remedies would be effective.28 Given the fact that article 30.9 of the Code on Administrative Offences does not seem to be applicable to the present communication as argued by the author, because it covers appeals against decisions on administrative offences issued by non-judicial authorities, the Committee accepts the author’s argument, which has not been challenged by the State party, that she has used all ordinary appeals procedures available to her under the State party’s law.
9.4 The Committee also notes the State party’s claim that the author could have lodged an appeal 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 Committee further notes the author’s argument that such 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. Moreover, she has already unsuccessfully challenged the constitutionality of the Ryazan Region Law on the basis of which she was convicted of an administrative offence before the Constitutional Court.
9.5 In this regard, the Committee recalls that domestic remedies need not be exhausted if they objectively have no prospect of success: where under applicable domestic laws the claim would inevitably be dismissed, or where established jurisprudence of the highest domestic tribunals would preclude a positive result.29 It notes that the Constitutional Court has dismissed the author’s appeal holding that the prohibition of propaganda of homosexuality could not be considered as a violation of her constitutional rights and that the State party does not claim that the courts that could have considered the author’s case under the supervisory review procedure would (or even could) have arrived at an outcome different to that of the Constitutional Court. The Committee considers, therefore, that it would not be reasonable to require the author to have recourse to the supervisory review procedure, because such remedy could no longer be seen as an effective remedy within the meaning of article 5, paragraph 2(b), of the Optional Protocol, i.e. a remedy that would provide the author with a reasonable prospect of judicial redress.30 The Committee, therefore, is not precluded, for purposes of admissibility, by article 5, paragraph 2(b) of the Optional Protocol, from examining the communication.
9.6 The State party further argues that the present communication is inadmissible under article 3 of the Optional Protocol and constitutes an abuse of the right of submission, because the author was not subjected to discrimination on any ground, in particular, on the ground of her sexual orientation, and the State party’s public authorities did not interfere with her private life. The Committee considers, however, that the arguments put forward by the author – that she was convicted of an administrative offence on the basis of section 3.10 of the Ryazan Region Law which allegedly discriminates against homosexual individuals – raise substantive issues and should be dealt with at the merits stage of the proceedings.
9.7 Accordingly, the Committee finds no further obstacles to the admissibility and declares the author’s claims under articles 19 and 26 of the Covenant sufficiently substantiated, for purposes of admissibility.
Consideration of the merits
10.1 The Human Rights Committee has considered the communication in light of all the information made available to it by the parties, as provided under article 5, paragraph 1, of the Optional Protocol.
10.2 The first issue before the Committee is whether or not the application of section 3.10 of the Ryazan Region Law to the author’s case, resulting in her conviction of an administrative offence and the subsequent fine, constituted a restriction within the meaning of article 19, paragraph 3, on the author’s right to freedom of expression. The Committee notes that section 3.10 of the Ryazan Region Law establishes administrative liability for “propaganda of homosexuality (sexual act between men or lesbianism) among minors”. The Committee observes, however, that the wording of section 3.10 of the Ryazan Region Law is ambiguous as to whether the term “homosexuality (sexual act between men or lesbianism)” refers to one’s sexual identity or sexual activity or both. In any case, there is no doubt that there has been a restriction on the exercise of the author’s right to freedom of expression guaranteed by article 19, paragraph 2, of the Covenant.31 In fact, the existence of the restriction in the present communication is not in dispute between the parties.
10.3 The Committee then has to consider whether the restriction imposed on the author’s right to freedom of expression is justified under article 19, paragraph 3, of the Covenant, i.e. provided by law and necessary: (a) for respect of the rights or reputations of others; and (b) for the protection of national security or of public order (ordre public), or of public health or morals. The Committee recalls in this respect its General Comment No. 34, in which it stated, inter alia, that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person, that they are essential for any society, and that they constitute the foundation stone for every free and democratic society.32 Any restrictions to their exercise must conform to the strict tests of necessity and proportionality and “must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.”33
10.4 The Committee observes that, in the present case, the author and the State party disagree as to whether the restriction on the exercise of the right to freedom of expression is “provided by law”. In particular, the author argues with reference to article 55, paragraph 3, of the Constitution, that freedom of expression can be restricted only by federal law, whereas the Ryazan Region Law on the basis of which she was convicted of an administrative offence for “propaganda of homosexuality among minors” is not a federal law. The State party in turn submits that the Ryazan Region Law is based on the Constitution and the Code on Administrative Offences, thus it is a part of the law on administrative offences. The Committee may dispense with considering this point because, irrespective of the domestic lawfulness of the restriction in question, laws restricting the rights enumerated in article 19, paragraph 2, must not only comply with the strict requirements of article 19, paragraph 3, of the Covenant but must also themselves be compatible with the provisions, aims and objectives of the Covenant,34 including the non-discrimination provisions of the Covenant.35
10.5 In this respect, the Committee recalls, as stated in its General Comment No. 34, that “the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations […] for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. Any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination”.36 In the present case, the Committee observes that section 3.10 of the Ryazan Region Law establishes administrative liability for “public actions aimed at propaganda of homosexuality (sexual act between men or lesbianism)” – as opposed to propaganda of heterosexuality or sexuality generally – among minors. With reference to its earlier jurisprudence,37 the Committee recalls that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation.
10.6 The Committee also recalls its constant jurisprudence that not every differentiation based on the grounds listed in article 26 of the Covenant amounts to discrimination, as long as it is based on reasonable and objective criteria,38 in pursuit of an aim that is legitimate under the Covenant.39 While noting that the State party invokes the aim to protect the morals, health, rights and legitimate interests of minors, the Committee considers that the State party has not shown that a restriction on the right to freedom of expression in relation to “propaganda of homosexuality” – as opposed to propaganda of heterosexuality or sexuality generally – among minors is based on reasonable and objective criteria. Moreover, no evidence which would point to the existence of factors justifying such a distinction has been advanced.40
10.7 Furthermore, the Committee is of the view that, by displaying posters that declared “Homosexuality is normal” and “I am proud of my homosexuality” near a secondary school building, the author has not made any public actions aimed at involving minors in any particular sexual activity or at advocating for any particular sexual orientation. Instead, she was giving expression to her sexual identity and seeking understanding for it.
10.8 The Committee notes the State party’s arguments that the author had a deliberate intent to engage children in the discussion of the issues raised by her actions; that the public became aware of the author’s views exclusively on the initiative of the latter; that her actions from the very beginning had an “element of provocation” and her private life was not of interest either to the public or to minors, and that the public authorities did not interfere with her private life (see paragraph 6.2 above). While the Committee recognizes the role of the State party’s authorities in protecting the welfare of minors, it observes that the State party failed to demonstrate why on the facts of the present communication it was necessary, for one of the legitimate purposes of article 19, paragraph 3, of the Covenant to restrict the author’s right to freedom of expression on the basis of section 3.10 of the Ryazan Region Law, for expressing her sexual identity and seeking understanding for it, even if indeed, as argued by the State party, she intended to engage children in the discussion of issues related to homosexuality. Accordingly, the Committee concludes that the author’s conviction of an administrative offence for “propaganda of homosexuality among minors” on the basis of the ambiguous and discriminatory section 3.10 of the Ryazan Region Law, amounted to a violation of her rights under article 19, paragraph 2, read in conjunction with article 26 of the Covenant.
11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation by the Russian Federation of article 19, paragraph 2, read in conjunction with article 26 of the Covenant.
12. In accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, including reimbursement of the value of the fine as at the situation of April 2009 and any legal costs incurred by the author, as well as compensation. The State party is also under an obligation to prevent similar violations in the future and should ensure that the relevant provisions of the domestic law are made compatible with articles 19 and 26 of the Covenant.
13. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official language of the State party.
[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]