Russia’s Top Court Says Anti-Gay Censorship is Totally Legal
Russia’s highest court has rejected an appeal to overturn the St Petersburg anti-gay propaganda law, saying that the ban is lawful as it targets straight people as much as it does the gay community.
The law, which came into force in March 2012, demands fines of up to 5,000 rubles ($150) for individuals determined guilty for exposing children to “homosexual propaganda.” The fine is larger for organizations, like media groups, at 500,000 rubles ($15,000).
Activists challenged the law, which directly fed into the passing of a national propaganda ban, arguing that it violated the Russian constitution’s commitment to nondiscrimination.
However, the Constitutional Court disagreed. In its opinion, originally released in October but only this week made known to the media, the Court said that St Petersburg lawmakers had acted within their power and followed the country’s Constitution by taking steps to protect the family unit and children in particular, reportedly saying legislators were duty bound to “take measures to protect children from information, propaganda and campaigns that can harm their health and moral and spiritual development.”
The Court also said that in balancing the rights of the individuals involved it found that civil rights and freedoms could be curtailed if they infringed on the rights of others. Apparently, the Constitutional Court believes a public discourse about gay rights constitutes just such an infringement.
In a third and perhaps even more perplexing angle, the Court said that the ban could not be considered discriminatory because it applies to homosexuals and heterosexuals alike: they are all banned from spreading pro-gay propaganda and therefore are not discriminated against. That this relies on a very narrow reading of the law while ignoring how it functions barely needs to be said, but we might speculate it is telling with regards to how these bans have been conceived.
Previous lawsuits have seen such bans narrowed, with courts saying the way they were written was unduly broad. However, this is the first time a court has ruled on the constitutionality of any such ban.
The ruling closely matches President Vladimir Putin’s assertions that the national ban is lawful because, he says, it protects minors but makes no comment about adults choosing to engage in homosexuality. While the distinction is arbitrary –practically, these laws are being used to stifle gay rights advocacy and we have plenty of evidence to prove that — the legalistic distinction appears to have been well choreographed to ensure that the bans cannot be easily challenged in the courts.
In the past, gay rights advocates have appealed to the European Court of Human Rights to adjudicate on cases where, for instance, Pride events have been banned. Russia has routinely ignored statements from the ECHR that its anti-gay stances flout basic human rights commitments. What is interesting about this latest ruling is that it has been publicized in the same week that Russian lawmakers made it known they believe Russian human rights rulings carry more weight than the European courts.
“The ECHR is not a†superior judicial authority in†relation to†national courts. A†specific court ruling rendered by†courts on†the territory of†any government participating in†the Convention cannot be annulled by†a decision of†the ECHR,” State Duma envoy to†the Constitutional Court Dmitry Vyatkin is quoted as saying by the Moscow Times.
The case the above statement refers to isn’t in fact anything to do with gay rights. Rather, it involves the high-profiled case of Konstantin Markin, who was denied parental leave from the military in 2005. In 2012 the ECHR ruled that Russia had violated Markin’s human rights by refusing to grant him leave based on his gender.
However, the statement is rather definitive in that Russian lawmakers seem to believe that an ECHR court ruling is in no way binding and that ultimately Russia has the authority to act regardless of international human rights treaties. Russia, it appears, feels emboldened to push its agenda in direct defiance of the ECHR — this isn’t new, as the previous Pride ban cases have shown, but it is more stark than in recent years.
News of this ruling also comes in the same week that the national propaganda law — that has been the focus of so much press as a result of Russia hosting the 2014 Winter Olympics — was used for the first time to fine gay rights campaigners Nikolai Alexeyev and Yaroslav Yevtushenko for holding up a banner saying “Gay propaganda doesn’t exist. People donít become gay, people are born gay,” close to a library in the northern city of Arkhangelsk.
Still, the International Olympic Committee maintains Russia’s anti-gay crackdown in no way violates the principles of nondiscrimination in the Olympic charter and that Sochi 2014, as the Games are called, will go ahead. How safe LGBT competitors will be remains an open question.
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