The Venice Commission has concluded that a Ukrainian bill proposing to ban the promotion of homosexuality, which was passed at first reading in the Ukrainian parliament, conflicts with international human rights standards and the European Convention on Human Rights (ECHR).
“The Venice Commission considers that the statutory provisions prohibiting ‘propaganda of homosexuality,’ are incompatible with the ECHR and international human rights standards. The Venice Commission therefore recommends that these provisions be repealed,” read the commission’s conclusions, which were made after an analysis of the Ukrainian bill.
The Venice Commission believes that the bill is problematic in terms of the applicable international standards. In particular, it contradicts the ECHR for several reasons, in particular, the provisions are not formulated with sufficient precision so as to satisfy the requirement prescribed by law.
“The terms used in these provisions such as ‘propaganda,’ ‘aggressive propaganda,’ ‘promotion,’ ‘negatively influence’ etc. are too ambiguous to reach the standard of ‘foreseeability,’ and the provisions do not sufficiently define the circumstances in which they are to be applied. This results also from the relevant domestic case law. As such, the scope of the provisions seems not to be limited to sexuality explicit content, but to apply to legitimate expressions of sexual orientation,” according to the conclusions.
The commission said that secondly, “public morality,” the values and traditions, including religion of the majority, and “protection of minors” as justifications for the prohibition of “homosexual propaganda” fail to pass the essential necessity and proportionality tests as required by the ECHR.
“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 guaranteed under the ECHR and as such, cannot be deemed contrary to morals by public authorities,” the commission said.
According to the conclusions, 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.
The Venice Commission also noted that 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,” the commission said.
The conclusions note 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,” reads the document.
As reported, on October 2 the Verkhovna Rada passed at first reading a bill amending some legal documents regarding the protection of children’s right to a safe information space. Some 289 of the 350 MPs registered in the sitting hall supported the bill.
The authors of the draft law propose introducing responsibility for actions that promote homosexual relations, abuse of the freedom of speech in the printed media, and the promotion of homosexuality on television and radio.
In addition, the authors of the document propose adding to the article of the Criminal Code of Ukraine on punishments for the importing, production or distribution of products propagating violence, cruelty, racial, national or religious intolerance and discrimination, another provision on penalties for the promotion of homosexuality.
