Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2318/2013 * , **

Communication submitted by:Kirill Nepomnyashchiy (not represented by counsel)

Alleged victim:The author

State party:Russian Federation

Date of communication:5 October 2013 (initial submission)

Document references:Special Rapporteur’s rule 97 decisions, transmitted to the State party on 11 December 2013 (not issued in document form)

Date of adoption of Views:17 July 2018

Subject matter:Rights of lesbian, gay, bisexual and transgender persons

Procedural issue: Exhaustion of domestic remedies

Substantive issues: Freedom of expression; discrimination on the ground of sexual orientation

Articles of the Covenant: 19 and 26

Articles of the Optional Protocol:2 and 5 (2) (b)

1.The author of the communication is Kirill Sergeyevich Nepomnyashchiy, a national of the Russian Federation born in 1981. He claims to be a victim of violations by the State party of his rights under articles 19 and 26 of the Covenant. The Optional Protocol entered into force for the Russian Federation on 1 January 1992. The author is not represented by counsel.

The facts as submitted by the author

2.1The author is an openly gay man and a lesbian, gay, bisexual and transgender rights activist. Since 2006, together with other people, he has tried to hold annual peaceful assemblies in Moscow (so-called “Moscow Gay Pride”), all of which were banned by the Moscow authorities. Similar initiatives to hold marches, pickets and rallies to promote tolerance towards gays and lesbians were banned several times in the city of Arkhangelsk in 2011 and 2012.

2.2On 1 January 2012, the author displayed a poster, which read “Homosexuality is a healthy form of sexuality. This should be known by children and adults!” The poster was displayed near the entrance to the Arkhangelsk regional children’s library. The purpose of this action was to promote the idea of tolerance towards the gay and lesbian minority in the Russian Federation.

2.3The author’s actions were interrupted by the police and, on 3 February 2012, he was convicted by the justice of the peace of Oktyabrskiy District of committing an administrative offence under section 2.13 of the Arkhangelsk regional law on administrative offences. The author was ordered to pay a fine of 1,800 roubles. On an unspecified date, he appealed the ruling of the justice of the peace to the Oktyabrskiy District Court of the city of Arkhangelsk, which rejected the appeal on 26 April 2012. The author maintains that this is the last effective remedy available to him.

The complaint

3.1The author refers to article 29 of the Constitution of the Russian Federation, which guarantees freedom of expression as well as the right to freely seek, receive, transfer, produce and disseminate information by any legal means. Under article 55 (3) of the Constitution, freedom of expression can be restricted only 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 State defence and national security.

3.2The 3 February 2012 ruling clearly interfered with the author’s right to freedom of expression under article 19 of the Covenant because he was banned from disseminating ideas of tolerance towards sexual minorities and found guilty of an administrative offence for doing so. The State party can only justify these restrictions under article 19 if they were “provided by law” and “necessary” for one of the legitimate aims mentioned in article 19 of the Covenant.

3.3The decision to hold the author liable for an administrative offence was based on section 2.13 of the regional law on administrative offences. However, under article 55 (3) of the Constitution, freedom of expression can be restricted only by federal law. Thus, the author maintains that the interference with his freedom of expression did not comply with the Constitution and therefore cannot be regarded as being “provided by law”.

3.4Even if the interference were “provided by law”, it was not “necessary” because it did not pursue one of the legitimate aims mentioned in article 19 (3) of the Covenant. The aim of the restriction was protection of public health or the morals of minors (in the Russian Federation, persons under 18) by prohibiting others from inciting minors to have intimate same-sex relations. However, the author did not promote any ideas related to intimate same-sex relations by minors. The purpose of his action was to educate the public, including minors, about tolerant attitudes towards homosexuality. The author further claims that the wording of the regional 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. He maintains that the blanket ban on imparting any information on homosexuality to minors makes the author’s freedom of expression merely theoretical and illusory.

3.5In the present case, the author displayed a poster reading “Homosexuality is a healthy form of sexuality. This should be known by children and adults!”, which, pursuant to section 2.13 of the regional law on administrative offences, is an administrative offence against public morals defined as “propaganda of homosexuality among minors”. He submits that propaganda always implies dissemination of certain ideas or educating the public on certain issues in order to change the public’s views. From the perspective of the Covenant, propaganda is one of the elements of freedom of expression and, thus, everyone has the right to advocate for certain ideas regarding homosexuality.

3.6Homosexuality is an objective characteristic of a large group of individuals in any society. In the present case, the regional law prohibits dissemination of any information regarding homosexuality, including information that is neutral in its content, among minors. Judging by the place of section 2.13 in the regional law (“Administrative offences against persons, public order and public security”), the aim of this prohibition is to protect the morals of minors. It follows that the law proceeds from the presumption that homosexuality is something immoral, which is clearly against the modern understanding of homosexuality as a characteristic based on sexual orientation and not on an individual’s choice.

3.7The regional 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. The regional law discriminates against homosexual individuals by prohibiting dissemination of any information about them among minors. 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 concerning the sixth periodic report of the Russian Federation, in which 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”. The author also refers to the Committee’s Views in the case of Fedotova v. Russian Federation and to the decision of the European Court of Human Rights in the case of Alekseyev v. Russia.

3.8The author concludes by asking the Committee to find that the ruling of 3 February 2012, making him liable for an administrative offence of propaganda of homosexuality among minors, was disproportionate to any legitimate aims pursued and therefore violated articles 19 and 26 of the Covenant.

State party’s observations on admissibility and the merits

4.1In a note verbale dated 16 May 2014, the State party challenged the admissibility of the complaint and provided its observations on the merits. The State party refers to its domestic legislation applicable to the case and submits that article 29 of the Constitution guarantees the right to freedom of thought and freedom of expression to everyone, and that every person has the right to impart information by any legal means. Protection of children from factors that negatively influence their physical, intellectual, mental, spiritual or moral development is one of the goals of the State policy in the interests of children, in accordance with the federal law on basic guarantees of the rights of the child in the Russian Federation. Article 10 of the Arkhangelsk regional law on particular steps on protection of the morality and health of children in the Arkhangelsk region states: “Parents and persons conducting events with children, as well as legal entities and persons carrying out entrepreneurial activity without forming a legal entity, shall be held responsible in accordance with the legislation of the Russian Federation and the regional law on administrative offences for allowing children to be present in places that can cause harm to their health or to their physical, intellectual, mental, spiritual and moral development.” Section 2.13 of the regional law states: “1. Public actions directed at the propaganda of homosexuality among minors are punishable by an administrative fine for citizens in the amount from 1,500 to 2,000 roubles; for officials, from 2,000 to 5,000 roubles; for legal entities, from 10,000 to 20,000 roubles. 2. Actions mentioned in paragraph 1 of this article committed repeatedly within a year are punishable by an administrative fine for citizens in the amount from 2,000 to 5,000 roubles; for officials, from 5,000 to 10,000 roubles; for legal entities, from 20,000 to 50,000 roubles.”

4.2With regard to the admissibility of the communication, the State party notes that in accordance with article 30.12 (1) (2) of the Code on Administrative Offences of the Russian Federation, decisions that have entered into force may be appealed under the supervisory review procedure by persons listed in articles 25.1−25.5.1. of the Code and by a prosecutor. Since the decision of the Oktyabrskiy District Court dated 26 April 2012 has not been appealed under the supervisory review, the State party considers the communication inadmissible.

4.3With regard to the merits of the communication, the State party notes that in accordance with article 72 (1) (g) of the Constitution, the protection of childhood is under the joint authority of the federal and regional governments. Article 14 (1) of the federal law on the rights of the child requires that public authorities of the Russian Federation take measures to protect a child from information, propaganda and agitation that can cause harm to his/her health and moral and spiritual development. In accordance with the federal law, legislators of the Arkhangelsk region have established measures directed at ensuring the intellectual, moral and mental safety of children in the region, including by way of a prohibition on conducting public actions aimed at propaganda of homosexuality and establishing sanctions for violating this prohibition. The State party submits, therefore, that such prohibition and sanctions set by the regional law are lawful. Moreover, the prohibition of such propaganda, which aims to disseminate information capable of harming the health and moral and spiritual development of those who, due to their age, cannot independently and critically assess such information, including forming a distorted conception of the social equality of traditional and non-traditional marital relationships, cannot be viewed as violating the constitutional rights of citizens.

4.4In accordance with article 44 (3) of the federal law on education in the Russian Federation, the right to choose elective subjects and courses in educational institutions, including those that are directed at dissemination of information about sex education, is given to students’ parents. When passing this law, legislators took into consideration article 17 of the Convention on the Rights of the Child, which encourages the development of appropriate guidelines for the protection of children from information and material injurious to their well-being.

4.5The Arkhangelsk regional laws do not contain any norms directed at the prohibition of homosexuality or its official reprimand. In accordance with article 38 (1) of the Constitution of the Russian Federation, motherhood, childhood and family are under the protection of the State. The legal interests of minors have an important social value, and one of the goals of the State policy in the interests of children is their protection from factors that negatively influence their physical, intellectual, mental, spiritual and moral development. In view of the foregoing, the federal law on the rights of the child is directed exclusively at the protection of children who, due to their age, cannot objectively and critically assess information which is being imposed on them and may negatively reflect on their mentality and introduce a distorted conception of relationships between people. Accordingly, article 14 (1) of that law requires that State authorities in the Russian Federation take measures that protect children from information, propaganda and agitation that is harmful to their health and moral and spiritual development.

4.6The federal law on protection of children against information detrimental to their health and development also provides for a special procedure for disseminating information that may harm children’s health and/or development (including information promoting non-traditional sexual relationships). This procedure requires that if an informational product contains any known information that may harm children’s health and/or development, it must carry, depending on its nature, a sound or text warning, indicating restriction of distribution among various age categories. These requirements do not apply to live television programmes, informational products distributed through radio and live shows and other instances when the exact content of distributed information cannot be determined. The Russian legislation does not contain any other restrictions on the matter at hand, including prohibition on distribution of information among adults promoting non-traditional sexual relationships. The national legislation also does not limit or differentiate between rights and responsibilities of persons based on their sexual orientation. Discrimination against sexual minorities, like any other discrimination, is prohibited by the Constitution of the Russian Federation. Therefore, the administrative responsibility for “propaganda of non-traditional sexual relationships among minors” is only possible in cases prescribed by the federal law and only when aimed at children under 18 years of age if there is an intent, proven before a court, by a perpetrator to form an impression in children about the advantages and attractiveness of non-traditional sexual relationships.

4.7The Constitutional Court and the Supreme Court of the Russian Federation hold similar positions towards propaganda among children of non-traditional sexual relationships, which is evidenced by decisions of these courts. Therefore, the requirement of respect and protection of human dignity set forth by the Constitution of the Russian Federation is realized through equal protection of the rights and interests of all persons, including those who have non-traditional preferences in their private lives. The restrictions on the freedom of expression and freedom of information are required by the necessity of balancing the interests of all members of the society, those who share its system of values and those who are oriented towards other models of social behaviour. This does not go beyond the discretionary powers of legislators, set by the Constitution of the Russian Federation, who are called upon to align the legal regulation of rights and freedoms of persons with historically established views of the society on the values of family, motherhood, fatherhood and childhood.

Author’s comments on the State party’s observations

5.1In a letter dated 14 July 2014, the author commented on the observations of the State party. With regard to the exhaustion of domestic remedies, the author notes that it has been established on various occasions by the Committee, as well as in the jurisprudence of the European Court of Human Rights, that the extraordinary court review procedure provided by the Russian legislation cannot be considered an effective legal remedy. Therefore, he considers that he has exhausted all effective legal remedies within the Russian court system.

5.2With regard to the merits of the case, the author submits that the case at hand is similar to the case of Fedotova v. Russian Federation, as both involve solitary pickets near children’s institutions with placards in support of the rights of homosexual persons and against homophobia and discrimination. The author notes that in the Fedotova case, the Committee found that the author’s right to freedom of expression had been violated in a discriminatory manner. Hence, the author requests the Committee to find similar violations in the present case.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

6.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

6.3The Committee notes the State party’s assertion that the author has failed to appeal the decision of the Oktyabrskiy District Court of 26 April 2012 under the supervisory review procedure. The Committee also notes the author’s argument that the extraordinary court review procedure provided by the Russian legislation cannot be considered an effective legal remedy. The Committee recalls its jurisprudence that a request for supervisory review to the president of a court directed against court decisions that have entered into force and depend on the discretionary power of a judge constitutes an extraordinary remedy, and that the State party must show that there is a reasonable prospect that such requests would provide an effective remedy in the circumstances of the case. The State party has not shown whether and in how many cases appeals for supervisory review procedures were applied successfully in cases concerning the right to freedom of expression, including expression relating to homosexuality. In these circumstances, the Committee considers that it is not precluded by articles 2 and 5 (2) (b) of the Optional Protocol from examining the present communication.

6.4The Committee considers that the communication is admissible as far as it raises issues under articles 19 and 26 of the Covenant. Accordingly, it declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

7.1The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

7.2The Committee notes the author’s claim that the application of section 2.13 of the regional law to the author’s case, resulting in his conviction for an administrative offence and the subsequent fine, constituted discrimination on the basis of sexual orientation under article 26 of the Covenant. The Committee notes that section 2.13 of the regional law establishes administrative liability for “public actions aimed at propaganda of homosexuality among minors”, and that the author was convicted and fined under this provision for displaying a poster that declared “Homosexuality is a healthy form of sexuality. This should be known by children and adults!” near the children’s library.

7.3The Committee recalls that, in paragraph 1 of its general comment No. 18 (1989) on non-discrimination, it stated that article 26 entitles all persons to equality before the law and equal protection of the law, prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In this context, the Committee recalls its constant jurisprudence that the prohibition against discrimination under article 26 also comprises discrimination based on sexual orientation and gender identity.

7.4The Committee notes the State party’s claim that its national legislation does not limit rights and responsibilities of persons based on their sexual orientation; that State policy protects minors from factors that negatively influence their physical, intellectual, mental, spiritual and moral development; and that legislators are called upon to align the legal regulation of rights and freedoms of persons with historically established views of the society on the values of family, motherhood, fatherhood and childhood. The Committee considers, however, that the regional law prohibiting “propaganda of homosexuality”, as opposed to heterosexuality or sexuality in general, expressly draws a distinction based on sexual orientation and gender identity and thus constitutes a differentiation on grounds prohibited under article 26.

7.5The Committee further recalls its 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 and in pursuit of an aim that is legitimate under the Covenant. 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 the restriction on expression under national and regional law relating to “propaganda of homosexuality” — as opposed to heterosexuality or sexuality generally — is based on reasonable and objective criteria. Moreover, no evidence which would point to the existence of factors that might justify such a distinction has been advanced. The Committee notes that the restriction limited the ability of individuals, including adolescents, to receive information and education about sexual orientation. The Committee further notes that it has previously concluded that the laws banning “promotion of non-traditional sexual relations with minors” in the State party exacerbate negative stereotypes against individuals on the grounds of sexual orientation and gender identity and represent a disproportionate restriction of their rights under the Covenant, and has called for the repeal of such laws. The Committee accordingly considers that the State party has failed to establish that the ban on propaganda of homosexuality among minors that was applied to the author was based on reasonable and objective criteria and in pursuit of an aim that is legitimate under the Covenant, and that the prohibition therefore discriminated against him on the basis of sexual orientation and gender identity in violation of article 26.

7.6The Committee notes the author’s claim that the application of the regional law to his case violated his right to freedom of expression within the meaning of article 19. The State party does not dispute that the regional law restricted the author’s freedom of expression. The Committee therefore must consider whether the restriction imposed on the author’s right to freedom of expression is justified under article 19 (3) of the Covenant, i.e., is 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 (2011) on the freedoms of opinion and expression, in which it is 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. 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. Paragraph 3 may never be invoked as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets and human rights.

7.7The 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”. The author argues, with reference to article 55 (3), of the Constitution, that freedom of expression can be restricted only by a federal law, whereas the regional law, on the basis of which he was convicted, is not a federal law. The State party in turn submits that the regional law is lawful because it is based on the Constitution and the federal law on the rights of the child. The Committee does not need to resolve this issue because, irrespective of the domestic lawfulness of the restriction in question, the concept of “prohibited by law” under article 19 (3) requires that laws be sufficiently precise to enable an individual to regulate his or her conduct accordingly and they may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. The Committee observes that the wording of section 2.13 of the regional law, including “promoting propaganda of homosexuality”, is highly ambiguous as to the actions being prohibited and therefore does not satisfy the requirement of lawfulness under article 19 (3).

7.8Laws restricting the rights enumerated in article 19 must also be strictly necessary and proportional to a legitimate aim set forth in that article and directly related to the specific need. The Committee notes that the State party invokes the aim under article 19 (3) of protection of morals, specifically, protection of the morals, health, rights and legitimate interests of minors. While the Committee recognizes the role of the State party’s authorities in protecting the welfare of minors in principle, it observes that the State party failed to demonstrate why, based on the facts of the present communication, it was strictly necessary and proportionate to one of the legitimate purposes of article 19 (3) of the Covenant to restrict the author’s right to freedom of expression through conviction for an administrative offence and a subsequent fine. The restriction imposed on the author was not limited to sexually explicit obscenities, but constituted a blanket restriction on legitimate expressions of sexual orientation. The Committee recalls its general comment No. 34, citing general comment No. 22 (1993) on the right to freedom of thought, conscience and religion in which it stated 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.” Therefore, any such laws must also be compatible with the provisions, aims and objectives of the Covenant, including the non-discrimination provisions.

7.9Accordingly, and in the light of its conclusion with respect to article 26, the Committee concludes that the author’s conviction of an administrative offence for “public actions aimed at propaganda of homosexuality among minors” on the basis of the ambiguous, disproportionate and discriminatory section 2.13 of the regional law, which was applied to the poster he displayed at the entrance to the children’s library, amounted to a violation of his rights under article 19 of the Covenant.

8.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the Russian Federation of articles 19 and 26 of the Covenant.

9.Pursuant to article 2 (3) (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to take appropriate steps to reimburse the value of the fine paid and any legal costs incurred by the author, as well as to provide appropriate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring 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.

10.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 and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and 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.