On June 20, the European Court of Human Rights satisfied the suit of Baev and others against the Russian Federation. Nikolay Baev, Alexey Kisilov and Nikolay Alexeyev were sentenced for “homosexualism propaganda” among juveniles in Russia. LGBTnews talked with advocate Arayik Ghazaryan about the subject.
– Mister Ghazaryan, how can this decision against Russia affect the ECHR jurisdictional countries, including Armenia?
– The Convention is a collective agreement, a collective application: that is, a single ECHR decision against any state should be understood as a message, norm or principle for all the states. In other words, it is not important that the verdict is against Russia: with that the European Convention on Human Rights is interpreted, and it’s told how it should be applied. That is, if the ECHR told that the law is unlawful and is against human rights, it means that it is a principle, a norm for all the states. For example, we do not have a law against “homosexual propaganda” in Armenia, but instead, we have a practice. The ECHR does not make so much difference between law and practice so far as the practice is of a normative nature and have become a principle. Now that decision means that such laws should not be adopted, and if they have already been adopted, they should be reviewed, and, third, the practice should be applied in a way which will not contradict the positions expressed by the ECHR. This means, the protection increases by one degree.
– You mentioned that we do not have such a law in Armenia, but we have a practice. How is that practice expressed?
– Practice is primarily manifested by hate speech, and this is more evident both in the private sector and in government bodies. The practice is also demonstrated by the fact that crime reports are not being processed or the existing ones are being concealed. In other words, this minority is deprived of legal protection means. There is also a wrong opinion among some public sector that these people are dangerous: at least, this is interpreted in such a way by the state bodies and the media.
–The law against homosexuality has been operating since 2013 in Russia, and now, in the decision against Russia, the ECHR has recorded that the rights of claimants to freedom of expression and to be free from discrimination have been violated…
–Not the fact of having the law or not is dangerous, but rather how the term “homosexuality propaganda” is interpreted. You can not fix it by law. As a rule, such laws are widely interpreted and include more and more cases. That is to say, it is not so important here that the so-called “homosexuality preach” is banned, but rather what this “homosexuality propaganda” contains. For example, if any journalist make a report on homosexual persons being prosecuted in Armenia, the judge can interpret in this way: if you present homosexuals’ daily life, then you preach homosexuality. So, the existence of such a law is already dangerous because it will be widely interpreted.
–Armenia is currently drafting the law on “Equality”. In your opinion, how should this law be in order the citizens have the opportunity to effectively protect their rights?
– Adoption of the law is a minimum requirement. The law can be adopted, but nothing will change. However, the law should be in order to raise public awareness on that basis, to present the truth, to change public opinion and to explain public that all have equal rights. Existence of the law is necessary that those who want to defend themselves, use this law. Now, when we don’t have the law, actually, there is no means for defense.
We have provisions on the prohibition of discrimination in various laws, but only these will not help, as there are many principles, criteria, predictors that should be presented in the context of anti-discrimination. As long as there is no law, there are no standards for this. That is, if citizens appeal to the court, they are deprived of effective tools.
– Mr. Ghazaryan, taking into consideration the fact that homosexuals belong to the most vulnerable group of the society, don’t you think that one of those tools will be the clear indication of gender discrimination and sexual orientation discrimination ban in the Law on “Equality”?
–It is necessary to remember the constitutional norm, which prohibits discrimination on the basis of any personal and social characteristics, in addition, some of the provisions of the law on gender equality can also be used.
–Why not to directly mention the inadmissibility of discrimination based on gender identity and sexual orientation?
– Perhaps, the law does not mention sexual orientation as a protected characteristics, but it should be noted that discrimination on any ground is prohibited. It would be better for it, of course, to be directly mentioned, but it is essentially the same thing. When the bill is put to a public discussion, let the legislator decide what to do, but the fact, that both the legislator and the executive understand that such a law is necessary for us, is unequivocal.
Moreover, not only homosexuals, but many others also need this law like air and water.