We're Here, We're Queer, and We're Here to Stay: Zhdanov and Others v. Russia and the State of European Court of Human Rights Judgments on Queer Rights Against Russia

• Jurisdiction: European Union
• Citation: Vol. 49 No. 3
• Publication year: 2021
• topic: Civil Rights,Constitutional Law

We're Here, We're Queer, and We're Here to Stay: Zhdanov and Others v. Russia and the State of European Court of Human Rights Judgments on Queer Rights Against Russia

Kevin Parker^*

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Table of Contents

I. Introduction.......................................................................................607

II. The Case of Zhdanov and Others v. Russia....................................608

A. Background of Russian Ratification of the Convention .... 608
B. Relevant Domestic Law.....................................................609
C. Relevant International Law...............................................611
D. Facts and Procedural History...........................................613

i. The First Application: Mr. Aleksandr Zhdanov (Regional Public Association "Rainbow House").....614
ii. The Second Application: Mr. Nikolay Alekseyev (Autonomous Non-Profit Organization "Movement for Marriage Equality ")...................................................616
iii. The Third Application: Mr. Nikolay Alekseyev, Mr. Kirill Nepomnyashchiy, and Aleksandr Naumchik (Regional Public Sports Movement "Sochi Pride House").......................................................................617

E. The Court's Judgment.......................................................618

III. Russia's Relation with the Convention and the Council of Europe...........................................................................................625

A. The Council of Europe and the Convention......................625
B. Russia Joins the Council of Europe and Ratifies the Convention.........................................................................627
C. Recent Tensions Between Russia and the ECHR..............627

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IV. Can Russia be Brought to Comply with ECHR Decisions on Queer Rights?..............................................................................630

A. The Importance of Zhdanov..............................................631
B. Attacking the Russian Constitutional Court and Punishing Russia................................................................................632
C. The ECHR Could Apply the Russian Constitution to Support its Judgments.....................................................................635
D. Activism.............................................................................636

V. Conclusion.........................................................................................638

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I. Introduction

In 2010, the European Court of Human Rights (ECHR) issued its first judgment against the Russian federation concerning queer¹ rights² in Alekseyev and Others v. Russia (2010).³ The ECHR held that Russia violated the applicant's right to freedom of association under Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention)⁴ and illegally discriminated against the applicants based on their queer status in violation of Article 14 of the Convention.⁵ In Alekseyev (2010), the City of Moscow prevented the applicants and other queer rights advocates from hosting a pride march in support of queer rights.⁶ Nine years later, the ECHR faced yet another challenge under Article 11 and 14 of the Convention in Zhdanov and Others v. Russia, where various Russian registration agencies, and subsequently, the Russian courts, disallowed a group of applicants from registering queer nonprofit organizations and public associations within the Russian State.⁷ In essence, nine years after the Court found that Russia violated Article 11 and 14 of the Convention for discriminatory practices against members of the queer community, Russia—relying on the same arguments they have used in past cases—is still ignoring the Court's rulings and its obligations under the Convention.

This Note seeks to provide a framework for the Court's holding in Zhdanov to demonstrate the state of ECHR jurisprudence on queer rights and Russia's resistance to implementing ECHR judgments on queer rights. It will also explore whether there is an effective way to bring Russia into compliance with the judgments of the Court. Specifically, Part II of this Note will examine the case of

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Zhdanov and Others v. Russia. Part III will explain Russia's joining of the Council of Europe and ratification of the Convention and the current tension between Russia and the ECHR. Finally, Part IV will analyze whether Russia can be brought to comply with the Court's judgments on queer rights and offer a possible solution to bring Russia into compliance, concluding that the most optimal approach is continued internal advocacy.

II. The Case of Zhdanov and Others v. Russia

This section of the Note sets out the Court's judgment in Zhdanov and Others v. Russia. Part A introduces the relevant background information that led Russia to ratify the Convention and submit itself to the Court's jurisdiction. Part B outlines the relevant domestic law, while Part C details the relevant international law. Part D describes the relevant factual and procedural history of the case, and finally, Part E lays out the ECHR's holding.

A. Background of Russian Ratification of the Convention

Russia ratified and acceded to the Convention in 1998.⁸ At the time, Russia was seeking membership in the Council of Europe, which had adopted the Convention in 1950 and created the ECHR.⁹ Russia applied for membership in the Council in 1992 and was invited to join in 1996.¹⁰ In joining the Council of Europe, Russia had to ratify the Convention and subject itself to the jurisdiction of the ECHR.¹¹ Many Council of Europe member states voiced concern over Russia's admission out of the fear it would lower the Council's standards due to the lack of protections for human rights in Russia.¹² Other member states hoped that admitting Russia and other Eastern European states would bring Russian law and the laws of the newly admitted states within the standards of the Council of Europe and the Convention.¹³

As a part of the accession agreement Russia signed when joining the Council of Europe, Russia promised to ratify the Convention and Protocols 1, 2, 4, 7 and

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11.¹⁴ Russia also promised to recognize Article 46 of the Convention, which provides that "[t]he High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties."¹⁵ Additionally, Russia agreed to change its domestic law in order to be consistent with the standards of the Council of Europe.¹⁶ Russia has fulfilled or partially fulfilled some of its promises, but not all of them.¹⁷ However, the reforms enacted by Russia were only made after long delay or were enacted without a change in practice by the Russian Government.¹⁸

B. Relevant Domestic Law

One must first understand the applicable law in order to understand the facts which brought Zhdanov to the ECHR. First, the Court examined relevant domestic law—specifically, the Constitution of the Russian Federation.¹⁹ Article 30 § 1 of the Russian Constitution guarantees the right to association and the right to form trade unions to protect certain interests, while also guaranteeing the freedom to actively publicly associate.²⁰ Article 13 § 4 states, "Public associations shall be equal before the law"; however, Article 13 § 5 provides that:

The creation and activities of public associations whose aims and actions are aimed at a forced change of the fundamental principles of the constitutional system and at violating the integrity of the Russian Federation, at undermining its security, at setting up armed units, and at instigating social, racial, national and religious strife shall be prohibited.²¹

Those were the two articles of the Russian Constitution that the Court found appropriate to highlight before elaborating on the specific Russian statutes involved in the case.

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The Court first set out the provisions of the Non-Profit Organizations Act.²² Article 2 § 2 describes the purposes for which a non-profit can be registered.²³ In particular, the law states that non-profit organizations can be formed for the purpose of "protecting the rights and legitimate interests of citizens . . . ."²⁴ Under Article 3 § 1, legal entity status is acquired from the moment of registration with the state. This registration permits the non-profit organization to possess certain rights, including property ownership and participating in judicial proceedings as a named party.²⁵ Under Article 13.1, registration of a non-profit organization is subject to Russian Federal Law and the decision of a federal executive body.²⁶

Pursuant to Article 23.1 § 1 of the Non-Profit Organizations Act, an application for registration can be denied in any one of three cases: (1) If the articles of association do not meet the standards under Russian law; (2) If the registration documents are "incomplete or defective"; and (3) If the name of the organization is "insulting to the moral, national or religious feelings of citizens."²⁷ The registration authority has discretion, however, to permit an applicant to fix any defects with the registration documents.²⁸ The Act also provides that registration decisions are appealable and that further applications can be submitted after the rejection of a former application.²⁹

The Court examined the Public Association Act (PAA) as well,³⁰ which comprises the requirements for the registration of a public association. Moreover, PAA § 3 provides that public associations may register with the state and act with legal entity status or act without registering and without acquiring legal entity status.³¹ PAA § 7 bars the creation of a public association "whose aims or activities are extremist," and PAA § 23 permits denial of an application for registration of a public association for the same reasons listed in the Non-Profits Organization Act under § 23.³² PAA § 27 states that public associations may

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"defend their rights and the rights of...