Procedural Posture

The plaintiffs brought a complaint to the Constitutional Court, alleging that Article 4 of the Ryazan Region Law “On Protection of Morals of Children in Ryazan Region”, and Article 3.10 of the Ryazan Region Law “On Administrative Offences”, violated their constitutional rights. Under the law, public actions aimed at the “propaganda of homosexuality (sodomy and lesbianism)” were prohibited.

Facts

The plaintiffs were convicted of an administrative offence for having displayed posters that declared “Homosexuality is normal” and “I am proud of my homosexuality” near a secondary school building. The purpose of this action was to promote tolerance towards LGBT persons in Russia.

Issue

Whether the challenged provisions violated the plaintiffs’ freedom of expression, protected by Article 29 of the Constitution of the Russian Federation.

Domestic Law

Constitution of Russia, Article 2 (supreme value of rights and freedoms), Article 29 (freedom of expression), and Article 38(1) (protection of motherhood, childhood and the family).

Federal Law “On the Basic Guarantees of the Rights of the Child in the Russian Federation”, Articles 4 and 14.

Ryazan Region Law “On Administrative Offences”, Article 3.10.

Ryazan Region Law “On the Protection of the Morals of Children in Ryazan Region”, Article 4.

International Law

European Convention on Human Rights, Article 10 (freedom of expression).

Reasoning of the Court

The Court first affirmed that, according to Article 2 of the Constitution of the Russian Federation, a human being and his or her rights and freedoms were of the highest value. Therefore, the recognition, respect and protection of these rights and freedoms was a State obligation.

Next the Court noted that the Constitution, under Article 38, specifically protected motherhood, childhood and the family. In the Court’s view, the traditional understanding of family, motherhood and childhood were values that required special protection from the State. According to the Court, legislators had 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, psychological, 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 Ryazan legislature adopted the challenged provisions with the aim of ensuring the intellectual, moral and psychiatric security of children. The Court argued that, in fact, the “propaganda of homosexuality” constituted an “uncontrolled dissemination of information capable of harming health [and] moral and spiritual development”. The prohibition of such propaganda among persons who, due to their age, lacked the capacity to critically assess it could not be considered to violate citizens’ constitutional rights.

Next, the Court analysed the protection of the right to freedom of expression provided by the Constitution. Article 29 of the Constitution guaranteed the right to freedom of speech, as well as the right to freely disseminate information by any 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 concluded that the challenged Ryazan law did not prohibit or disparage homosexuality. It did not discriminate against homosexuals nor did it grant excessive powers to public authorities. The Court therefore concluded that the law could not be considered to limit freedom of expression excessively.

The Court declared the plaintiffs’ complaint inadmissible.

Postscript

In February 2010, the plaintiff Irina Fedotova submitted a communication concerning her prosecution under the Ryazan law to the United Nations Human Rights Committee for consideration under the Optional Protocol to the ICCPR. The communication, registered as No. 1932/2010, is pending.

 In re Fedotova, Constitutional Court of the Russian Federation (full text of judgment, PDF)