CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 juin 2017

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RUSSIA   (Applications nos. 67667/09 and 2 others - see appended list)             JUDGMENT             STRASBOURG     20 June 2017     FINAL   13/11/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bayev and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Luis López Guerra,   Helen Keller,   Dmitry Dedov,   Alena Poláčková,   Georgios A. Serghides,   Jolien Schukking, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 23 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos.   67667/09, 44092/12 and 56717/12) 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”) by three Russian nationals, Mr   Nikolay Viktorovich Bayev (“the first applicant”), Mr Aleksey Aleksandrovich Kiselev (“the second applicant”) and Mr   Nikolay Aleksandrovich Alekseyev (“the third applicant”), on 9 November 2009 (the first application) and 2 July 2012 (the second and the third applications). 2.     The applicants were represented by Mr D.G. Bartenev, a lawyer practising in St Petersburg. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin . 3.     The applicants alleged that the legislative ban on “propaganda of non ‑ traditional sexual relations aimed at minors” violated their right to freedom of expression and was discriminatory. 4.     On 16 October 2013 the applications were communicated to the Government. 5.     In addition to written observations by the Government and the applicants, third-party comments were received from the Family and Demography Foundation, jointly from Article 19: Global Campaign for Freedom of Expression (“Article 19”) and Interights, and jointly from the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), “Coming Out” and the Russian Lesbian, Gay, Bisexual and Transgender (LGBT) Network, whom the President had authorised to intervene in the written procedure (Article 36 §   2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants were born in 1974, 1984, and 1977 respectively. The first and the third applicants live in Moscow, and the second applicant lives in Gryazy, Lipetsk Region. 7.     The applicants are gay rights activists. They were each found guilty of the administrative offence of “public activities aimed at the promotion of homosexuality among minors” ( публичные действия, направленные на пропаганду гомосексуализма среди несовершеннолетних ). A.     The applicants’ administrative offences 8.     On 3 April 2006 the Ryazan Regional Duma adopted the Law on Protection of the Morality of Children in the Ryazan Oblast, which prohibited public activities aimed at the promotion of homosexuality among minors. 9.     On 4 December 2008 the Ryazan Regional Duma adopted the Law on Administrative Offences, which introduced administrative liability for public activities aimed at the promotion of homosexuality among minors. 10 .     On 30 March 2009 the first applicant held a static demonstration (“picket”, пикетирование ) in front of a secondary school in Ryazan, holding two banners which stated “Homosexuality is normal” and “I am proud of my homosexuality”. He was charged with an administrative offence for doing so. 11.     On 6 April 2009 the Justice of the Peace of Circuit no. 18 of the Oktyabrskiy District of Ryazan found the first applicant guilty of a breach of section 3.10 of the Ryazan Law on Administrative Offences. He was ordered to pay a fine of 1,500 Russian roubles (RUB, equivalent to about 34   euros (EUR)). On 14 May 2009 the Oktyabrskiy District Court dismissed the first applicant’s appeal. 12.     On 30 September 2011 the Arkhangelsk Regional Assembly of Deputies passed amendments to the Law on Separate Measures for the Protection of the Morality and Health of Children in the Arkhangelsk Oblast. The amended law prohibited public activities aimed at the promotion of homosexuality among minors. 13.     On 21 November 2011 the Arkhangelsk Regional Assembly of Deputies passed amendments to the Regional Law on Administrative Offences. The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality among minors. 14 .     On 11 January 2012 the second and the third applicants held a static demonstration in front of the children’s library in Arkhangelsk. The second applicant was holding a banner stating “Russia has the world’s highest rate of teenage suicide. This number includes a large proportion of homosexuals. They take this step because of the lack of information about their nature. Deputies are child-killers. Homosexuality is good!” The third applicant was holding a banner stating “Children have the right to know. Great people are also sometimes gay; gay people also become great. Homosexuality is natural and normal”; it went on to list the names of famous people who had contributed to Russia’s cultural heritage and were believed to be gay. Both applicants were arrested and escorted to the police station, where administrative offence reports were drawn up. 15.     On 3 February 2012 the Justice of the Peace of Circuit no. 6 of the Oktyabrskiy District of Arkhangelsk found the second and the third applicants guilty of a breach of section 2.13 § 1 of the Arkhangelsk Law on Administrative Offences. The second applicant was ordered to pay a fine of RUB   1,800 (about EUR 45), and the third applicant was fined RUB   2,000 (about EUR   50). On 22 March 2012 the Oktyabrskiy District Court of Arkhangelsk dismissed both applicants’ appeals. 16 .     On 7 March 2012 the St Petersburg Legislative Assembly passed amendments to the Law on Administrative Offences in St Petersburg. The amendments introduced administrative liability for public activities aimed at the promotion of homosexuality, bisexuality and/or transgenderism among minors; the same law introduced administrative liability for promotion of paedophilia. 17 .     On 12 April 2012 the third applicant held a demonstration in front of the St   Petersburg City Administration, holding up a banner with a popular quote from a famous Soviet-era actress Faina Ranevskaya: “Homosexuality is not a perversion. Field hockey and ice ballet are.” He was arrested by the police and escorted to the police station, where an administrative offence report was drawn up. 18.     On 5 May 2012 the Justice of the Peace of Circuit no. 208 of St   Petersburg found the third applicant guilty of a breach of section 7.1 of the Law on Administrative Offences in St   Petersburg. He had to pay a fine of RUB 5,000 (about EUR 130). On 6 June 2012 the Smolninskiy District Court of St   Petersburg dismissed the applicant’s appeal. B.     Legislative developments and Constitutional Court judgments 19.     On an unspecified date the first and the third applicants brought proceedings before the Constitutional Court of the Russian Federation. They challenged the compatibility of section 4 of the Law on Protection of the Morality and Health of Children in the Ryazan Oblast with the provisions of the Constitution, in particular with the principle of equal treatment and the freedom of expression enshrined in Articles 19 and 29 of the Constitution, and also the provisions of Article 55 § 3, setting out the conditions under which the constitutionally guaranteed rights and freedoms may be restricted. 20.     On 19 January 2010 the Constitutional Court declared the complaint inadmissible, for the following reasons: “Section 14 § 1 of the Federal Law clearly sets out the responsibility of the State bodies of the Russian Federation to take measures for the protection of children from information, propaganda and activism which is harmful to their health and moral and spiritual development. ... The laws of the Ryazan Oblast “On protection of the morality of children in the Ryazan Oblast” and “On administrative offences” do not strengthen any measures which prohibit homosexuality or provide for its official censure; they do not contain signs of discrimination, and there is no indication in their intent of superfluous actions by the State bodies. It follows that the provisions being challenged by the appellants cannot be regarded as disproportionately restrictive of freedom of speech.” 21.     On unspecified date the third applicant brought proceedings before the Constitutional Court of the Russian Federation. He challenged the compatibility of section 7 of the Law on Administrative Offences in St   Petersburg with the Constitution. 22 .     On 24 October 2013 the Constitutional Court declared the complaint inadmissible, for the following reasons: “... It follows that the given prohibition, determined by the fact that such promotion is capable of harming minors by virtue of the age-specific features of their intellectual and psychological development, cannot be considered as permitting a limitation on the rights and freedoms of citizens exclusively on the basis of sexual orientation. ... However, this does not rule out a need to define – on the basis of a balancing exercise with regard to the competing constitutional values – the limits of the given individuals’ effective practice of their rights and freedoms, in order not to infringe the rights and freedoms of others. ... Given that it is bound up with the investigation into the factual circumstances of the case, the assessment of whether the appellant’s actions with regard to the targeted and unchecked dissemination of generally accessible information were capable of causing harm to the health and moral and spiritual development of minors, including creating a distorted impression of the social equivalence of traditional and non-traditional marital relations, does not come within the competence of the Constitutional Court of the Russian Federation; nor does verification of the lawfulness and validity of the judicial decisions issued in the appellant’s case.” 23.     On 29 June 2013 the Code of Administrative Offences of the Russian Federation was amended, introducing in Article 6.21 administrative liability for the promotion of non-traditional sexual relations among minors. 24.     On an unspecified date the third applicant and two other persons brought proceedings before the Constitutional Court of the Russian Federation. They challenged the compatibility of Article 6.21 of the Code of Administrative Offences with the provisions of the Constitution. 25 .     On 23 September 2014 the Constitutional Court examined the complaint on the merits and dismissed it, for the following reasons: “... Citizens’ enjoyment of the right to disseminate information concerning the question of an individual’s sexual self-determination ought not to infringe the rights and freedoms of others; in regulating of this right by means of legislation, it is necessary to ensure that a balance is struck between the values protected by the Constitution. Consequently, bearing in mind the sensitive nature of such questions, since they belong to the sphere of individual autonomy, and without encroaching on its very essence, the State is entitled to introduce, on the basis of the above-mentioned requirements of the Constitution of the Russian Federation, specific restrictions on activities linked with the dissemination of such information if it becomes aggressive [and] importuning in nature and is capable of causing harm to the rights and legal interests of others, primarily minors, and is offensive in form.   ... In so far as one of the roles of the family is [to provide for] the birth and upbringing of children, an understanding of marriage as the union of a man and a woman underlies the legislative approach to resolving demographic and social issues in the area of family relations in the Russian Federation...   Regulation of freedom of speech and the freedom to disseminate information does not presuppose the creation of conditions which would facilitate the formation of other interpretations of the family as an institution, and the associated social and legal institutions, which would differ from the generally accepted interpretations nor society’s approval of them as being equivalent in value...   These aims also determine the need to protect the child from the influence of information that is capable of causing harm to his or her health or development, particularly information that is combined with an aggressive imposition of specific models of sexual conduct, giving rise to distorted representations of the socially accepted models of family relations corresponding to the moral values that are generally accepted in Russian society, as these are expressed in the Constitution and legislation. ... In order to ensure the child’s healthy development, States are required, in particular, to protect the child from all forms of sexual exploitation and sexual perversion. ... 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 Constitutional Court of the Russian Federation acknowledges that the possible impact on the child’s future life of the information in question, even when delivered in a persistent manner, has not been proven beyond doubt. Nonetheless, in assessing the necessity of introducing one or another restriction, the federal legislature is entitled to use criteria that are based on the presumption that there exists a threat to the child’s interests, especially as the restrictions introduced by it concern only the tendency of the information in question to target persons of a given age group, and cannot therefore be regarded as excluding the possibility of exercising one’s constitutional right to freedom of information in this area. ... The prohibition on public activities in relation to minors is intended to prevent their attention being increasingly focused on issues concerning sexual relations, which are capable, in unfavourable circumstances, of deforming significantly the child’s understanding of such constitutional values as the family, motherhood, fatherhood and childhood, and adversely affecting not only his or her psychological state and development, but also his or her social adaptation. The fact that this ban does not extend to situations concerning the promotion of immoral conduct in the context of traditional sexual relationships, which may also require State regulation, including through [the existence of] administrative offences, is not grounds for finding that the given norm is incompatible with the Constitution of the Russian Federation from the perspective of infringing the principles of equality as applied to the protection of Constitutional values, which ensure the uninterrupted replacement of generations ... The imposition on minors of a set of social values which differ from those that are generally accepted in Russian society, and which are not shared by and indeed frequently perceived as unacceptable by parents – who bear primary responsibility for their children’s development and upbringing and are required to provide for their health and their physical, psychological, spiritual and moral development – ... may result in the child’s social estrangement and prevent his or her development within the family, especially if one considers that equality of rights as set out in the Constitution, which also presupposes equality of rights irrespective of sexual orientation, does not yet guarantee that persons with a different sexual orientation are actually regarded in equal terms by public opinion; this situation may entail objective difficulties when trying to avoid negative attitudes from individual members of society towards those persons on a day-to-day level. This is also true for instances where the very information that is banned from dissemination to minors may be intended, from the disseminator’s perspective, to overcome such negative attitudes towards persons with a different sexual orientation... The prohibition on the promotion of non-traditional sexual relationships does not in itself exclude the information in question from being presented in a neutral (educational, artistic, historical) context. Such transmission of information, if it is devoid of indications of promotion, that is, if it is not aimed at creating preferences linked to the choice of non-traditional forms of sexual identity and ensures an individualised approach, taking into account the specific features of the psychological and physiological development of children in a given age group and the nature of the specific issue being clarified, may be conducted with the help of experts such as teachers, doctors or psychologists. ... does not signify a negative appraisal by the State of non-traditional sexual relationships as such, and is not intended to belittle the honour and dignity of citizens who are involved in such relationships... ... cannot be regarded as containing official censure for non-traditional sexual relationships, in particular homosexuality, far less their prohibition... ... the person [disseminating information] must understand that what appears to him or her as the straightforward provision of information may, in a specific situation, resemble activism (promotion), if it is shown that the aim was to disseminate (or especially to impose) information with the above-mentioned content. At the same time, only intentional commission by a person of the corresponding public activities, directly targeted at promoting non-traditional sexual relations among minors, or intentional commission of these actions by a person who was fully aware that there could be minors among those receiving the information, is punishable...” II.     RELEVANT DOMESTIC LAW AND PRACTICE 26.     The Russian Constitution guarantees equality of rights and freedoms to everyone, irrespective of, in particular, sex, social status or employment position (Article 19). It also guarantees the right to freedom of thought and expression, as well as freedom to freely seek, receive, transfer and spread information by any legal means (Article 29). It provides that rights and freedoms may be restricted by federal laws for the protection of constitutional principles, public morals, health and the rights and lawful interests of others, and to ensure the defence and security of the State (Article 55). 27.     Law no. 172-22-OZ of the Archangelsk Oblast of 3 June 2003 “On Administrative Offences” provides: Section 2.13 Public activities aimed at the promotion of homosexuality among minors “1.     Public activities aimed at promoting homosexuality among minors – shall be punishable by an administrative fine for private citizens ranging 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.     The activities referred to in point 1 of the present section, where repeated within one year, shall be punishable by the imposition of an administrative fine, ranging from 2,000 to 5,000 roubles for private individuals; from 5,000 to 10,000 roubles for officials; and from 20,000 to 25,000 roubles for legal entities. (additional section included on the basis of Oblast Law no. 386-26-OZ of 21   November 2011).” 28.     Law no. 41-OZ of the Ryazan Oblast of 3 April 2006 “On Protection of the Morality of Children in the Ryazan Oblast” provides: Section 4. Prohibition of public activities aimed at the promotion of homosexuality among minors “Public activities aimed at promoting homosexuality (buggery and lesbianism) shall not be permitted.” 29.     Law no. 182-OZ of the Ryazan Oblast of 4 December 2008 “On Administrative Offences” provides: Section 3.10 Public activities aimed at the promotion of homosexuality (buggery and lesbianism) among minors “Public activities aimed at the promoting homosexuality (buggery and lesbianism) among minors shall be punished by an administrative fine ranging from 1,500 to 2,000 roubles for private citizens; from 2,000 to 4,000 roubles for officials; and from 10,000 to 20,000 roubles for legal entities.” 30.     Law no. 113-9-OZ of the Archangelsk Oblast of 15 December 2009 “On separate measures for the protection of the morality and health of children in the Archangelsk Oblast” provides: Section 10. Measures to preclude public activities aimed at the promotion of homosexuality among minors (introduced by Law no. 336-24-OZ of the Archangelsk Oblast of 30 September 2011) “Public activities that are aimed at promoting homosexuality among minors shall be inadmissible.” 31.     Law no. 273-70 of St Petersburg of 31 May 2010 “On Administrative Offences in St Petersburg” provides: Section 7-1. Public activities aimed at the promotion of buggery, lesbianism, bisexuality and/or transgenderism among minors (section introduced from 30 March 2012 by Law no. 108-18 of St   Petersburg of 7   March 2012) “Public activities aimed at promoting buggery, lesbianism, bisexuality and/or transgenderism among minors shall be punishable by an administrative fine of 5,000   roubles for private citizens; 15,000 roubles for officials; and from 250,000 ‑ 500,000 roubles for legal entities. Marginal note: For the purposes of the present section, public activities aimed at promoting buggery, lesbianism, bisexuality and/or transgenderism are to be understood as activities for the targeted and unchecked dissemination, in a generally accessible manner, of information capable of harming the health, morals and spiritual development of minors, and of creating in them a distorted image of the social equivalence of traditional and non-traditional marital relations.” 32.     Federal Law no. 436-F3 of 29 December 2010 “On the Protection of Children from Information that is Harmful to their Health and Development”: Section 5. Forms of information harmful to children’s health and (or) development “... 2. Information prohibited for dissemination to children shall include information: (1) inciting children to carry out actions which pose a threat to their lives and (or) their health, including harming their own health, suicide; (2) capable of arousing in children a desire to use narcotic products, psychotropic and (or) intoxicating substances, tobacco products, alcohol and alcohol-based products, beer and beer-based beverages, to participate in gambling, to engage in prostitution, vagrancy or begging; (3) justifying or defending the acceptability of violence and (or) cruelty or inciting to commit violent actions against people or animals, with the exception of the cases stipulated in this Federal Law; (4) negating family values, promoting non-traditional sexual relationships and creating disrespect for parents and (or) other family members... (as worded in Federal Law no. 135-FZ of 29 June 2013).” Section 16. Additional requirements concerning the circulation of informational products that are forbidden to children “3. Informational products that are forbidden to children may not be distributed within educational institutions, establishments for children’s health, health resorts, sports associations, children’s cultural associations and recreational and health associations for children, or at a distance of less than 100m from the territory of such organisations.” 33.     Federal Law no. 124-FZ of 24 July 1998 “On the Main Guarantees of the Rights of the Child in the Russian Federation” provides: Section 14. Protection of the child from information, propaganda and activism that is harmful to his or her health, morals and spiritual development “1. The Governmental authorities of the Russian Federation shall take measures to protect the child from information, propaganda and activism that is detrimental to his or her health and moral and spiritual development, including from national, class-based or social intolerance; advertising for alcoholic and tobacco products; [material] promoting social, racial, national and religious inequality; information of a pornographic nature; information promoting non-traditional sexual relationships; and from the dissemination of printed, audio- and video-materials that promote violence and cruelty, addiction to narcotics or drugs, [or] anti-social behaviour...” (in the wording of Federal Laws no. 252-FZ of 21 July 2013, no. 135-FZ of 29 June 2013).” 34 .     Code of Administrative Offences of the Russian Federation provides: Article 6.21 Promotion of non-traditional sexual relations among minors (introduced by Federal Law no. 135-FZ of 29 June 2013) “1. The promoting of non-traditional sexual relationships among minors, expressed in the dissemination of information aimed at creating in minors a non-traditional sexual orientation, promoting the attractiveness of non-traditional sexual relationships, creating a distorted image of the social equivalence of traditional and non-traditional sexual relationships, or imposing information about non-traditional sexual relationships, arousing interest in such relationships, if these activities do not contain acts punishable under criminal law, - shall be subject to the imposition of an administrative fine, ranging from 4,000 to 5,000 roubles for citizens; from 40,000 to 50,000 roubles for officials; and, for legal entities, a fine ranging from 800,000 to 1,000,000 roubles or an administrative suspension of their activities for up to 90 days.” III.     RELEVANT COUNCIL OF EUROPE DOCUMENTS A.     The Parliamentary Assembly of the Council of Europe 35.     Resolution 1948 (2013) of the Parliamentary Assembly of the Council of Europe (“PACE”), adopted on 27 June 2013 and entitled “Tackling discrimination on the grounds of sexual orientation and gender identity”, stated, inter alia , as follows: “7.     The Assembly particularly deplores the unanimous approval by the Russian Duma of the bill on so called propaganda for non-traditional sexual relationships among minors which, if approved also by the Council of the Federation, would be the first piece of legislation on the prohibition of homosexual propaganda to be introduced at national level in Europe. 8.     In this context, the Assembly takes note of the Opinion of the European Commission for Democracy through Law (Venice Commission) on the issue of the prohibition of so-called homosexual propaganda in the light of recent legislation in some member States of the Council of Europe; it shares its analysis and endorses its findings, notably that “the measures in question appear to be incompatible with the underlying values of the [European Convention on Human Rights]”, in addition to their failure to meet the requirements for restrictions prescribed by Articles 10, 11 and 14 of the European Convention on Human Rights.” B.     The European Commission for Democracy through Law (the Venice Commission) 36 .     In its Opinion “On the Issue of the Prohibition of so-called “Propaganda of Homosexuality” in the Light of Recent Legislation in Some Member States of the Council of Europe , adopted at its 95th Plenary Session (Venice, 14-15 June 2013), the Venice Commission examined the statutory provisions containing prohibitions of “propaganda of homosexuality” which had been adopted or proposed to be adopted in the Republic of Moldova, the Russian Federation and Ukraine. The Opinion stated, inter alia , as follows: “28.     ... the scope of the terms such as “propaganda” and “promotion” which are fundamental to these laws does not only seem to be very wide, but also rather ambiguous and vague, taking into account the application of the provisions in the case-law ... Some of those provisions also use unclear terms such as “among minors”/ “aimed at minors” ... ... 31.     Despite the attempts made by the [Russian Supreme Court and Constitutional Court] to give a precise definition to the notion of “propaganda of homosexuality”, the notion still remains vague as the Constitutional Court and the Supreme Court did not give further indication on what is to be considered as “information which is able to cause damage to moral and spiritual development or to the health of minors” or “dictating homosexual lifestyle to minors” in the implementation of the provisions in question. ... 34.     It is thus not clear from the case law applying these provisions, whether the terms “prohibition of homosexual propaganda” have to be interpreted restrictively, or whether they cover any information or opinion in favour of homosexuality, any attempt to change the homophobic attitude of a part of the population towards gays and lesbians, any attempt to counterbalance the sometimes deeply rooted prejudices, by disseminating unbiased and factual information on sexual orientation. 35.     ... Further, according to the United Nations Human Rights Committee, the Ryazan Law is ambiguous as to whether the term “‘homosexuality (sexual act between men or lesbianism)’ refers to one’s sexual identity or activity, or both.” ... 37.     In the Venice Commission’s opinion, the provisions in question concerning the prohibition of “homosexual propaganda” ... are not formulated with sufficient precision as to satisfy the requirement “prescribed by law” contained in the paragraphs 2 of Articles 10 and 11 of the ECHR respectively and the domestic courts have failed to mitigate this through consistent interpretations. ... 41.     At the outset, it should be noted that the prohibition of “propaganda of homosexuality” is obviously linked to the question of sexual orientation . First, the prohibition in question restricts speech propagating or promoting homosexual/lesbian sexual orientation. Secondly, it seems that the prohibition would more often, although not necessarily, affect persons of homosexual/lesbian sexual orientation, who have a personal interest in arguing for toleration of homosexual/lesbian sexual orientation and its acceptance by majority. ... 48.     Therefore, measures which seek to remove from the public domain promotion of other sexual identities except heterosexual, affect the basic tenets of a democratic society, characterized by pluralism, tolerance and broadmindedness, as well as the fair and proper treatment of minorities. Thus, such measures would have to be justified by compelling reasons. ... 50.     The first asserted justification of the prohibition of “propaganda of homosexuality” is the “protection of morals”... ... 53.     The exercise of [the right to freedom of expression] by sexual minorities does not depend on the positive/negative attitudes of some of the members of the heterosexual majority. As put forward by the Human Rights Committee in its general comment on Article 19 of the ICCPR “the concept of morals derives from many social, philosophical and religious traditions”, any limitation imposed for the “purpose of protecting morals must be based on principles not deriving from a single tradition” ... 56.     ... According to the Venice Commission, the negative attitude of even a large part of the public opinion towards homosexuality as such, can neither justify a restriction on the right to respect for the private life of gays and lesbians, nor on their freedom to come true for their sexual orientation in public, to advocate for positive ideas in relation to homosexuality and to promote tolerance towards homosexuals. In this regard, the Venice Commission recalls that in its Recommendation CM/Rec(2010)5, the Committee of Ministers of the Council of Europe considered that neither cultural, traditional nor religious values, nor the rules of a “dominant culture” can be invoked to justify hate speech or any other form of discrimination, including on grounds of sexual orientation or gender identity. ... 58.     As the provisions under consideration pertain to “homosexual propaganda” or “homosexual promotion” as such, without limiting the prohibition to obscene or pornographic display of homosexuality, or to the demonstration of nudity or sexually explicit or provocative behaviour or material, the provisions cannot be deemed to be justified as necessary in a democratic society to the protection of morals ... 59.     The second asserted justification of the prohibition of “propaganda of homosexuality” is the protection of children. The provisions under consideration claim that the protection of minors against homosexual propaganda is justified, taking into account their lack of maturity, state of dependence and in some cases, mental disability. 60.     Again it has to be emphasized that the incriminations in the provisions under consideration are not limited to obscenities, to provocative incitements to intimate relations between persons of the same sex, or to what the Russian Constitutional Court called to “dictating homosexual lifestyle”, but that they also seem to apply to the dissemination of mere information or ideas, advocating a more positive attitude towards homosexuality. ... 63.     As to the explanatory memorandums that accompany the Russian Draft Federal Law and the Ukrainian draft law no. 8711 (no. 0945) respectively, the Venice Commission observes that they do not provide any evidence of harm that may result for minors. 64.     In the same vein, the UN Human Rights Committee, in the case of Fedotova [cited in paragraph 40 below] , duly distinguished “ actions aimed at involving minors in any particular sexual activity ” from “ giving expression to [one’s] sexual identity ” and “ seeking understanding for it ”. In this case, the Committee observed that the State party failed to demonstrate why it was necessary for the protection of minors, to restrict the author’s right to freedom of expression of her sexual identity even if she intended to engage children in the discussion of issues related to homosexuality. 65.     Indeed, it cannot be deemed to be in the interest of minors that they be shielded from relevant and appropriate information on sexuality, including homosexuality. 66.     The Venice Commission observes that international human rights practice supports the right to receive age appropriate information concerning sexuality. 67.     ... In the Venice Commission’s opinion, the dissemination of information and ideas that advocate for positive ideas in relation to homosexuality and that promote tolerance towards homosexuals, does not preclude that traditional family values and the importance of traditional marital relations are propagated and strengthened. 68.     ... Sweeping restrictions on the freedom of expression that target not only certain specific types of content ( e.g. sexually explicit content such as in Müller v.   Switzerland ), but apply to all categories of expression, from political discussion and artistic expression to commercial speech, will certainly have serious impact on public debate on important social issues which is central to any democratic society. Thus, the ban cannot be considered “necessary in a democratic society” for the protection of family in the traditional sense. ... 77.     In conclusion, ... the Venice Commission considers that the prohibition of “propaganda of homosexuality” as opposed to “propaganda of heterosexuality” or sexuality generally – among minors, amounts to a discrimination, since the difference in treatment is based on the content of speech about sexual orientation and the authors of the provisions under consideration have not put forward any reasonable and objective criteria to justify the prohibition of “homosexual propaganda” as opposed to “heterosexual propaganda”. ... 80.     Secondly, “public morality”, the values and traditions including religion of the majority, and “protection of minors” as justifications for prohibition on “homosexual propaganda” fail to pass the essential necessity and proportionality tests as required by the [Convention]. Again, the prohibitions under consideration are not limited to sexually explicit content or obscenities, but they are blanket restrictions aimed at legitimate expressions of sexual orientation. The Venice Commission reiterates that homosexuality as a variation of sexual orientation, is protected under the [Convention] and as such, cannot be deemed contrary to morals by public authorities, in the sense of Article 10 § 2 of the [Convention]. On the other hand, there is no evidence that expressions of sexual orientation would adversely affect minors, whose interest is to receive relevant, appropriate and objective information about sexuality, including sexual orientations. 81.     Finally, the prohibition concerns solely the “propaganda of homosexuality” as opposed to “propaganda of heterosexuality”. Taking also into account the democratic requirement of a fair and proper treatment of minorities, the lack of any reasonable and objective criteria to justify the difference of treatment in the application of the right to freedom of expression and assembly amounts to discrimination on the basis of the content of speech about sexual orientation. 82.     On the whole, it seems that the aim of these measures is not so much to advance and promote traditional values and attitudes towards family and sexuality but rather to curtail non-traditional ones by punishing their expression and promotion. As such, the measures in question appear to be incompatible with “the underlying values of the ECHR”, in addition to their failure to meet the requirements for restrictions prescribed by Articles 10, 11 and 14 of the Convention. 83.     In the light of the above, the Venice Commission considers that the statutory provisions prohibiting “propaganda of homosexuality”, are incompatible with [Convention] and international human rights standards. The Venice Commission therefore recommends that these provisions be repealed ...” C.     The Committee of Ministers 37 .     Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010, covers a wide range of areas where lesbian, gay, bisexual or transgender persons may encounter discrimination. In the chapter concerning “Freedom of expression and peaceful assembly”, it provides as follows: “13.     Member states should take appropriate measures to ensure, in accordance with Article 10 of the Convention, that the right to freedom of expression can be effectively enjoyed, without discrimination on grounds of sexual orientation or gender identity, including with respect to the freedom to receive and impart information on subjects dealing with sexual orientation or gender identity. ... 16.     Member states should take appropriate measures to prevent restrictions on the effective enjoyment of the rights to freedom of expression and peaceful assembly resulting from the abuse of legal or administrative provisions, for example on grounds of public health, public morality and public order. 17.     Public authorities at all levels should be encouraged to publicly condemn, notably in the media, any unlawful interferences with the right of individuals and groups of individuals to exercise their freedom of expression and peaceful assembly, notably when related to the human rights of lesbian, gay, bisexual and transgender persons.” 38.     The same Recommendation also states, in the chapter concerning “Education”, as follows: “31.     Taking into due account the over-riding interests of the child, member states should take appropriate legislative and other measures, addressed to educational staff and pupils, to ensure that the right to education can be effectively enjoyed without discrimination on grounds of sexual orientation or gender identity; this includes, in particular, safeguarding the right of children and youth to education in a safe environment, free from violence, bullying, social exclusion or other forms of discriminatory and degrading treatment related to sexual orientation or gender identity. 32.     Taking into due account the over-riding interests of the child, appropriate measures should be taken to this effect at all levels to promote mutual tolerance and respect in schools, regardless of sexual orientation or gender identity. This should include providing objective information with respect to sexual orientation and gender identity, for instance in school curricula and educational materials, and providing pupils and students with the necessary information, protection and support to enable them to live in accordance with their sexual orientation and gender identity. Furthermore, member states may design and implement school equality and safety policies and action plans and may ensure access to adequate anti-discrimination training or support and teaching aids. Such measures should take into account the rights of parents regarding education of their children.” 39.     At the date of adoption of the present judgment, the Council of Europe’s Committee of Ministers is continuing its supervision of the pending execution of the judgment in Alekseyev v. Russia , nos. 4916/07 and   2 others, 21 October 2010), which it classified as suitable for the enhanced supervision procedure. Most recently, at the 1273rd meeting of the Committee of Ministers (December 2016, DH) a decision was adopted ( CM/Del/Dec(2016)1273/H46-23 ) whereby the Ministers’ Deputies expressed serious concern that, notwithstanding the measures presented by the Russian authorities, the situation did not attest to any improvement, as the number of LGBT public events allowed continues to be very limited. The Committee urged the authorities to adopt all further necessary measures to ensure that the practice of local authorities and the courts develops so as to ensure the respect of the rights to freedom of assembly and to be protected against discrimination, including by ensuring that the law on “propaganda of non-traditional sexual relations” among minors does not pose any undue obstacle to the effective exercise of these rights. The Committee of Ministers invited the Russian authorities to continue action to address effectively the outstanding questions with a view to achieving concrete results, including taking further measures to address continued widespread negative attitudes towards LGBT persons. IV.     RELEVANT INTERNATIONAL MATERIAL 40 .     The United Nations Human Rights Committee examined a complaint about an administrative penalty imposed under Law no. 41-OZ of the Ryazan Oblast (see Fedotova v. Russian Federation , Merits, Communication No   1932/2010, UN Doc CCPR/C/106/D/1932/2010, IHRL 2053 (UNHRC 2012), 31 October 2012, United Nations Human Rights Committee [UNHRC]) and found as follows: “2.2     On 30 March 2009, the author displayed posters that declared “Homosexuality is normal” and “I am proud of my homosexuality” near a secondary school building in Ryazan. According to her, the purpose of this action was to promote tolerance towards gay and lesbian individuals in the Russian Federation. 2.3     The author’s action was interrupted by police and, on 6 April 2009, she was convicted by the justice of the peace of an administrative offence [and was] punished with [an] administrative fine ... ... 10.8     The Committee notes the State party’s arguments that the author had a deliberate intent to engage children in the discussion of the issues raised by her actions; that the public became aware of the author’s views exclusively on the initiative of the latter; that her actions from the very beginning had an “element of provocation” and her private life was not of interest either to the public or to minors, and that the public authorities did not interfere with her private life ... While the Committee recognizes the role of the State party’s authorities in protecting the welfare of minors, it observes that the State party failed to demonstrate why on the facts of the present communication it was necessary, for one of the legitimate aims ... to restrict the author’s right to freedom of expression ..., for expressing her sexual identity and seeking understanding for it, even if indeed, as argued by the State party, she intended to engage children in the discussion of issues related to homosexuality. Accordingly, the Committee concludes that the author’s conviction of an administrative offence for “propaganda of homosexuality among minors” on the basis of the ambiguous and discriminatory section 3.10 of the Ryazan Region Law, amounted to a violation of her rights under article 19, paragraph 2 [right to f