Academic journal article American University International Law Review

Pride and Prejudiced: Russia's Anti-Gay Propaganda Law Violates the European Convention on Human Rights

Academic journal article American University International Law Review

Pride and Prejudiced: Russia's Anti-Gay Propaganda Law Violates the European Convention on Human Rights

Article excerpt

I. INTRODUCTION

Russia's State Duma passed article 6.13, or the "propaganda ban," on June 26, 2013, and Russian President Vladimir Putin signed the bill into law three days later.1 This law bans distributing "propaganda" of "nontraditional sexual relations" to minors.2 While the State Duma tweaked the language at the last minute to not specifically name the lesbian, gay, bisexual, and transgender ("LGBT") community as the sole target,3 the law's only effect is to prevent gay rights activists from conducting demonstrations where they might come into contact with minors.4 In the past, the Russian government ("Government") has allowed progress for LGBT rights, including the decriminalization of homosexuality in 1993 and President Putin's previous refusal to implement bans similar to article 6.13.5 However, the gay propaganda ban follows a troubling trend of Russia's recent suppression of human rights as evidenced by a review of the European Court of Human Rights' ("the Court" or "ECtHR") docket.6 The percentage of ECtHR cases from Russia increased from 2.1% in 2002 to 22.5% in 2007.7 Furthermore, the Court found in over ninety-four percent of the cases it heard that Russia violated a right protected by the European Convention on Human Rights ("ECHR").8

The ban's broad language also raises serious questions about the law's compliance with Russia's international obligations.9 Part II of this comment discusses standards that Russia and other parties to the ECHR must meet to comply with ECtHR decisions.10 Part III then analyzes the potential outcomes of a legal challenge to Russia's ban on gay propaganda.11 It explores several ECtHR cases with facts similar to those the ban presents, and shines light on ways the Russian ban on gay propaganda-particularly relating to the freedom of assembly, the freedom from discrimination, and the right to an effective remedy-is inconsistent with those decisions.12

Part IV recommends options for complying with the ECHR.13 It argues that Russia should repeal the ban on gay propaganda to afford its citizens the rights guaranteed by Russia's international agreements.14 Part IV also posits that failing to enforce the ban will save the Government time and resources on litigation, as well as improve Russia's standing in the international community.15 Additionally, Part IV suggests that not enforcing the ban serves the Government's interest of protecting minors, a leading justification for the ban on gay propaganda.16

Part V concludes that the Russian ban on gay propaganda cannot withstand a legal challenge to the ECtHR.17 As written, the law violates Russia's international commitments to protect the freedom of assembly, freedom from discrimination, and the right to an effective remedy.18 This comment closes by determining that the ban on gay propaganda should be abandoned because of the incongruity between the language of the law and Russia's international commitments.

II. BACKGROUND

Internationally, the LGBT community is accepted by society now more than ever.19 Nations across Europe and the globe are repealing laws that discriminate based on sexual orientation, and the United Nations unveiled a first-of-its-kind office with the mission of changing negative perceptions of homosexuality.20

Although the ban on gay propaganda is contrary to these advances across Europe and the globe, Russia does have the infrastructure to protect LGBT rights.21 The Russian Constitution provides for the supremacy of international agreements when a conflict arises between domestic and international law.22 Therefore, even if the Russian Constitution and federal laws do not safeguard the freedom of assembly, freedom from discrimination, and the right to an effective remedy, Russia's obligations under international agreements still require those protections.23 Though the Court upholds restrictions that are prescribed by law, advance a legitimate government interest, and are necessary in a democratic society,24 the ECtHR generally invalidates restrictions on individual rights. …

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