ISAKOV proti Rusku

THIRD SECTION

CASE OF ISAKOV v. RUSSIA

(Application no. 21226/14)

JUDGMENT

STRASBOURG

10 January 2023

This judgment is final but it may be subject to editorial revision.

In the case of Isakov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Yonko Grozev, President,
Peeter Roosma,
Ioannis Ktistakis, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 21226/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 February 2014 by a Russian national, Mr Dmitriy Alekseyevich Isakov, born in 1989 and living in Kazan (“the applicant”) who was represented by Mr D.G. Bartenev, a lawyer practising in St Petersburg;

the decision to give notice of the application to the Russian Government (“the Government”), represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov;

the parties’ observations;

Having deliberated in private on 29 November 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant’s administrative liability for an anti‑homobophic banner.

2. The applicant is a gay rights activist. On 30 June 2013 the applicant held a picket against homophobia in the centre of Kazan. He held a banner stating “Being a gay and loving gays is normal, beating gays and killing gays is criminal”. The applicant was arrested by the police on the spot and taken to the police station for the purposes of compiling an administrative offence record.

3. On 19 December 2013 the Justice of the Peace of Circuit no. 3 of the Sovetskiy District of Kazan found the applicant guilty of an administrative offence under Article 6.21 § 1 “Promotion of non-traditional sexual relations among minors” of the Code of Administrative Offences (“the CAO”), introduced by the Federal Law no. 135-FZ of 29 June 2013. This provision provided administrative penalty for, inter alia, the promotion of non‑traditional sexual relationships among minors expressed in the dissemination of information aimed at “creating in minors a non-traditional sexual orientation” or “promoting the attractiveness of non-traditional sexual relationships”. The Justice of the Peace referred in particular to Section 5 of the Federal Law no. 436-FZ of 29 December 2010 “On the Protection of Children from Information that is Harmful to their Health and Development”, which prohibited disseminating information “that negates family values, promotes non-traditional sexual relationships and creates disrespect for parents and/or other family members” to children. The applicant was fined 4,000 roubles ((RUB); about 90 euros (EUR) at the time).

4. On 11 February 2014 the Sovetskiy District Court of Kazan dismissed the applicant’s appeal.

5. On an unspecified date the applicant challenged the compatibility of Article 6.21 of the CAO with the provisions of the Constitution. On 23 September 2014 the Constitutional Court of Russia examined the complaint on the merits and dismissed it (for the text of the judgment see Bayev and Others v. Russia, nos. 67667/09 and 2 others, § 25, 75, June 2017). The Constitutional Court stated, inter alia, that “the aim pursued by the federal legislature in establishing the given norm was to protect children from the impact of information that could lead them into non-traditional sexual relations, a predilection for which would prevent them from building family relationships as these are traditionally understood in Russia and expressed in the Constitution of the Russian Federation”.

THE COURT’S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

6. The applicant complained under Article 10 of the Convention that his conviction for an administrative offence had violated his right to freedom of expression.

7. The Government submitted that the applicant had not exhausted domestic remedies available to him as he had not challenged the decision of 19 December 2013 before the Supreme Court. The Court reiterates that supervisory-review procedure is not considered an effective remedy in the proceedings lodged under the CAO (see Smadikov v. Russia (dec.), no. 10810/15, § 49, 31 January 2017). Therefore, the applicant complied with the exhaustion requirement.

8. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

9. It has been undisputed by the parties that the administrative liability imposed on the applicant constituted an interference with his right to freedom of expression. The Court notes that the applicant was convicted for displaying a banner against homophobia while picketing. The domestic courts justified his conviction by reference to the need of protecting children from information which, inter alia, promoted non-traditional sexual relations (see paragraph 3 above). It follows that the applicant’s conviction was based on the general legislative ban on propaganda of homosexuality examined by the Court in Bayev and Others (cited above, §§ 61-84). The Court held that “the legal provisions in question do not serve to advance the legitimate aim of the protection of morals”, and that “such measures are likely to be counterproductive in achieving the declared legitimate aims of the protection of health and the protection of rights of others”. It concluded that given the vagueness of the terminology used and the potentially unlimited scope of their application, these provisions are open to abuse in individual cases (ibid., § 83).

10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to merits of this complaint. It concludes that the ban on “promotion of homosexuality among minors” and its implementation in the present case violated the applicant’s right to freedom of expression guaranteed by Article 10 of the Convention.

2. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11. The applicant also complained under Article 14 in conjunction with Article 10 of the Convention that the legislative ban on the propaganda of non-traditional sexual relations among minors was discriminatory, given that no similar restrictions applied with regard to heterosexual relations. In his view, the law discriminated against persons of homosexual orientation. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. The Court has already found in Bayev (cited above, §§ 87-92) that the legislative provisions in question embodied a predisposed bias on the part of the heterosexual majority against the homosexual minority and the Government had not offered convincing and weighty reasons justifying the difference in treatment. Having examined all the material before it, the Court does not see any reason to depart from these findings. It concludes that there has been a violation of Article 14 taken in conjunction with Article 10 of the Convention in respect of the applicant.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12. The applicant claimed 8,000 euros (EUR) in respect of non‑pecuniary damage and EUR 1,500 in respect of costs and expenses incurred before the Court. He asked that the award for costs and expenses be paid to the bank account of his representative.

13. The Government contested those claims.

14. The Court awards the applicant EUR 8,000 in respect of non‑pecuniary damage, and EUR 850 in respect of costs and expenses incurred before the Court, plus any tax that may be chargeable to the applicant on these amounts. The payment in respect of costs and expenses should be made directly to the bank account of the applicant’s representative before the Court, Mr D.G. Bartenev.

15. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 10 of the Convention;
3. Holds that there has been a violation of Article 14 in conjunction with Article 10 of the Convention;
4. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly to Mr D.G. Bartenev’s bank account;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Yonko Grozev
Deputy Registrar President