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LEGISLATION

Legal Position of Russian Lesbians and Gays



CONSTITUTIONAL LAW

The new, democratic Constitution of the Russian Federation was adopted on December 12, 1993. Article 19 of the Russian Constitution provides a formal 'equal treatment' provision stipulating that the state shall guarantee the equality of human rights and freedoms irrespective of gender, race, ethnicity, language, origin, material or official position, residence, religion, opinion, membership in public associations, as well of other circumstances. Sexual orientation is not explicitly mentioned. Theoretically, it may fit into the category of 'other circumstances', though none of Russian legal scholars has ever pronounced on the issue.[1]

The Russian Constitution contains explicit references to the supremacy of international covenants and agreements on human rights.[2] Article 46.3 of the Constitution further provides for the right to file claims with the international bodies for the protection of human rights upon exhaustion of domestic means.

The Russian Federation is a member of the Council of Europe since 1996.[3] Russia ratified the European Human Rights Convention in 1998[4] and undertook to abide by the final judgment of the European Court for Human Rights in any case to which the Russian Federation is a party. Although the Convention or the additional 'anti-discrimination' Protocol No. 12 currently open for signature by member states do not mention explicitly sexual orientation, it has been argued that the Convention provides sufficient safeguards for a sexual orientation discrimination case to be considered on the merits by the European Court for Human Rights.[5] Recent developments in the case law of the Court support this point of view.[6] A claim to the European court is the last resort for Russian lesbian and gays who are unable to get protection in sexual orientation discrimination cases from the Russian conservative judiciary.[7]


CRIMINAL LAW

Since 1993, consensual male homosexuality is not a criminal offence under the Russian penal law.[8] Female homosexuality has never been legally prosecuted, although some reports suggest that until early 90s Soviet lesbians were subjected to forced psychiatric treatment.[9]

The new Criminal Code of the Russian Federation entered into force on 1 January 1997.[10] The new code embraces 'separate but equal' concept two mirroring articles provide precisely the same penalties for a rape (presumed to be heterosexual) and 'forced actions of sexual nature' which include buggery and lesbianism.[11] Damage to health, HIV infection or death of the victim, or against a minor aggravate the punishment in both cases. These articles are the only ones that make explicit references to respective gender of the perpetrator and the victim. The following article 133 - prohibiting 'coercion into actions of sexual nature' - uses an open-ended list of offences which includes 'sexual intercourse [presumed to be heterosexual], buggery, lesbianism or other actions of sexual nature' irrespective of the gender of the victim.

The consent age was initially set at 16 years both for hetero-, and homosexual intercourse.[12] In 1998 the consent age was further lowered to 14 years.[13] Article 134 of the Criminal Code penalizes 'sexual intercourse, buggery or lesbianism' committed by a person over 18 on a person 'admittedly under 14 years old'. Article 135 further prohibits 'corruption of morals carried out without the use of force against a person admittedly under 14 years old'. 'Corruption of morals' is a fairly broad concept that includes, inter alia, sexual intercourse in presence of the adolescent, exhibitionism, demonstration of pornographic videos or pictures, reading of pornographic literature.[14] The word 'admittedly' (zavedomo) means that the perpetrator can only be held liable if s/he had known or surmised that the adolescent was under 14 years old.[15]

The Russian Criminal Code prohibits incitement to ethnic, religious or racial enmity[16], but this list is exhaustive and cannot be applied to homophobic hate crimes. There is no specific gay hate crime laws in Russia.


CIVIL AND FAMILY LAW

From the point of view of the Russian civil law, the status of same-sex couples is no different from that of roommates. There is no law on registered partnerships in the Russian Federation, nor does the Russian Civil Code recognize de facto cohabitation as having any legal consequences.

The Russian Family Code defines 'marriage' as a union of one man and one woman.[17] Although foreign marriages are generally recognized in the Russian Federation,[18] same-sex marriages (e.g. on the Dutch model) may not be honored as contradictory to the 'public order'.[19]

Only married couples or single individuals may adopt children.[20] Joint adoption by same-sex partners is illegitimate, nor are partners able to adopt each other's children.


HOUSING LAW

All Russian residents are under an obligation to register their residence with the local police department.[21] In bigger cities, such as Moscow and St. Petersburg, this requirement is strictly enforced and the police cracks down on 'non-registered' residents.[22] The Moscow Mayor introduced a system under which a new resident must first get an approval from the municipal authorities. We know of several instances where same-sex partners have been denied the permission to dwell together on various formal grounds, such as 'absence of kinship' or 'sanitary norms'.[23] Although the Russian Constitutional Court has pronounced on the unconstitutionality of such practices,[24] they remain in place.[25]


LABOR LAW

The Russian Labor Code prohibits the discrimination of job applicants and discriminatory dismissals in general terms;[26] again, sexual orientation is not explicitly mentioned. We know that openly lesbian or gay persons are often discriminated at the job application stage or fired after 'coming out',[27] but to date there has been no attempt to appeal those instances of discrimination in court. A test case is hard to come by since there are no witnesses willing to testify in favor of a homosexual person for the fear of losing their job.

Review prepared by Nikita A Ivanov, November 2000


[1]Kurdiavtsev, Yuri et al. (1996), Postateiny kommentariy k Konstitutsii Rossiyskoi Federatsii (Moscow: Fond "Pravovaya Kultura")

[2]Article 15.4 of the Constitution of the Russian Federation provides that 'generally recognized principles and norms of the international law and international treaties [concluded] by the Russian Federation shall be an integral part of its legal system. If an international treaty [concluded] by the Russian Federation provides for the rules different from those in the [domestic] law, the rules of the international treaty shall be applicable."

[3]Council of Europe Committee of Ministers Resolution (96)2 Invitation to the Russian Federation to Become a Member of the Council of Europe; The Russian Federation Federal Law No. 19-FZ On the Accession of Russia to the Statute of the Council of Europe of 23 February 1996.

[4] The Russian Federation Federal Law No. 54-FZ On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols Thereto of 30 March 1998. The Convention entered into force for the Russian Federation on 5 March 1998.

[5] See Wintemute, Robert (1997) Sexual Orientation and Human Rights (Oxford: Clarendon Press), pp. 91-149 passim.

[6] See, e.g., Beck, Copp and Bazeley v. the United Kingdom (5/9/2000) where the United Kingdom 'anti-gay' military policies have been successfully challenged.

[7] See the Omsk case below and also Ivanov, Nikita (2000), 'How Judges Rule' The Moscow Times, 15 November 2000, p.6

[8] The Russian Federation Law No. 4901-I of 29 April 1993 (entered into force on 17 May 1993)

[9] Gessen, Masha (1994) The Rights of Lesbians and Gay Men in the Russian Federation: An International Gay and Lesbian Human Rights Commission Report (San Francisco: IGLHRC), pp. 17-18

[10] The Russian Federation Criminal Code No. 63-FZ of 13 June 1996.

[11] Articles 131 and 132 of the Criminal Code. The Russian word for male sexual intercourse is ' muzhelozhstvo' or literally 'a man lying with a man', we will use the word 'buggery' as the closest in usage.

[12] Article 134 of the 1996 drafting of the Criminal Code.

[13] The Russian Federation Federal Law No. 92-FZ of 25 June 1998 (entered into force on 27 June 1998)

[14] Naumov, Dr. A.V. et al. (1997) Postateinyi Kommentariy k Ugolovnomu Kodeksu RF 1996 g. (Moscow: Gardarika), notes on Article 135.

[15] Ibid., notes on Article 134.

[16] Article 282 of the Criminal Code.

[17] Articles 1.3 and 12.1 of the Russian Federation Family Code No. 223-FZ of 29 December 1995

[18] Article 158 of the Family Code.

[19] Article 167 of the Family Code. See, e.g., Kuznetsova, I.M. et al. (1996) Kommentariy k Semeinomu Kodesku RF (Moscow: Izdatel'stvo BEK), notes on Articles 12 and 167.

[20] Article 125.1 of the Family Code and Regulations on Transfer of Children for Adoption and Exercise of Control over their Living Conditions and Education in Adoptive Families in the Territory of the Russian Federation approved by Resolution 275 of the Russian Federation Government of 29 March 2000

[21] Rules of Registration and Unregistration of Russian Federation Citizens' Permanent and Temporary Residence within the Russian Federation approved by Resolution 713 of the Russian Federation Government of 17 July 1995 (as amended on 16 March 2000)

[22] See, e.g., Human Rights Watch World Report 1999 stating that 'the Moscow city police continued to enforce registration rules in a predatory and discriminatory way, beating and extorting bribes', or Human Rights Watch World Report 2000 confirming that 'the Moscow city government unleashed a ferocious crackdown on non-Muscovites, forced all non-Muscovites to re-register with police and housing authorities, and rounded up and "deported" from the city limits thousands who lacked registration documents".

[23] Personal interviews in 1998-2000.

[24] Ruling No. 4-P of the Russian Federation Constitutional Court of 2 February 1998.

[25] 'Residence Permits Stay, Mayor Says' The Moscow Times, 11 March 1998

[26] Articles 16, 40-2 and 77 of the Russian Federation Code of Labor Laws as of 25 September 1992 (as amended on 30 April 1999)

[27] Personal interviews in 1998-2000. Unlawful lay-offs were wide-spread after the financial collapse in August 1998; economic hardships were often used as a pretext to get rid of 'unwanted' employees.


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